Judicial Interference Justification Doesn't Hold Water

Some debaters pointed to this Seattle Post-Intelligencer article as the explanation for Bush's decision to circumvent the FISA court. The story says that an unprecedented number of wiretap requests were modified by the court -- 179 of the 5,645 requests from the Bush administration since 2001, plus another six that were rejected or deferred.

But read through the second half of the article and it's hard not to notice that the timelines don't match up: 173 of the modifications and all six of the rejections were issued in 2003 and 2004; Bush ordered the warrantless spying in 2002. So even if no modifications were made to warrant requests for the rest of 2002 after Bush issued his directive, that still means he based his decision on a maximum of six modified warrants -- hardly such an overwhelming figure that it should cause a president to take extrajudicial action.

Even if the FISA court had been modifying Bush's requests willy-nilly right from day one (which it wasn't), a far more defensible course of action would have been to seek authority from Congress to work outside FISA, or to seek changes in the statutes governing FISA to allow for a broader range of acceptable justifications for surveillance of a U.S. person.

(Want to lead the Debate for a day? Click here.)

By Emily Messner |  December 29, 2005; 9:28 AM ET  | Category:  Beltway Perspectives
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They would have acted the same had there been only one rejection. This is an Administration that has treated the American public like scared 4th graders, and we've acquiesed to it. Bush nearly equated the revelations of this folly with support for Al-Qaeda. Gonzales admitted they could never have gotten changes like they're justifying through the Congress, even one as supine and unquestionning as this one. Bush's remarks about what was shameful pale in the light of the breadth of the electronic net they've constructed. A detached observer could make a terrific case that if we teach this kind of democracy to nations like Iraq, we'll have order, semi-security, and precious few liberties.
Bush has managed to go Nixon one better; he breaks the law and then refuses to stop, because HE knows best. His posturing on the Patriot Act is similar in kind. Why in the name of the Founding Fathers would we EVER expand this guy's power? What credibility does he have? This debate should have occurred Sept 12, 2001 until the passage of the Patriot act, not 4 years after we were propagandized into believing we are more secure--as the 9/11 Commission made clear, we're not, and as Katrina showed a disaster completely flummoxes this incompetent crew.

The question is how to prevent more damage for the three years we have to endure?

Posted by: bklyndan | December 29, 2005 03:12 PM


Emily thank you so much for these informative colums. There is an enomrous amount of deliberate disinformation being presented, largely but not exclusively in defence of the domestic wiretap program. Your column gives us facts at hand with which to debate the real issue.

And the real issue is not whether surveillance is a good thing or a bad thing or what kind of limits should be placed on it.

Nor is the issue whether FISA or oversight are the most convenient and efficient ways to fight the war on terror. Of course they're not. Dictatorship is far more efficient than democracy, especially for the dictator. But the President is pretty strongly committed to the idea that democracy is the right system not just for America or the West but for everyone.

Therefore the President must subject himself to the inconveniences of letting Congress make the laws and the Courts interpret them, just as both those branches must allow the President to execute the war within legal boundaries.

The only issue here is the rule of law and whether the President can exempt himself and his agents from legal restrictions without seeking authorization from the other branches of government.

I suspect the answer is no. Congress wrote the FISA law, Bush ignored the law, and it is, hopefully, now for the Courts to provide a rememdy.

Posted by: Bullsmith | December 29, 2005 03:41 PM

Who said that?

"Terrorism is the best political weapon for nothing drives people harder than a fear of sudden death."

"I know two types of men, those who are with us and those who are against us."

"We will export death and violence to the four corners of the earth in the defense of our great nation."

"[t]he national government will maintain and defend the foundations on which the power of the nation rests...we want to fill our culture again with the Christian spirit. We want to burn out all the recent immoral developments in literature, in the theatre, and in the press . . . in short, we want to burn out the poison of immorality which has entered into our whole life and culture as a result of liberal excess during the past few years."

Look it up.

Posted by: patriot1957 | December 29, 2005 04:10 PM

One more: Said by a leader about an act that would grant him wide powers to "defend" his nation in times of "terror"

"The government will make use of these powers only insofar as they are essential for carrying out vitally necessary measures...The number of cases in which an internal necessity exists for having recourse to such a law is in itself a limited one."

Posted by: patriot1957 | December 29, 2005 04:31 PM

Answers:
Hitler
Goering
GW Bush
Hitler
Hitler

Posted by: patriot1957 | December 29, 2005 04:32 PM

One wonders how long "The American Century" that was created in fantasy, born of deceit, and became a bully, will survive?
jb

Posted by: jbcracker | December 29, 2005 04:50 PM

What this NSA executive order matter will boil down to in the end is a separation of powers issue.

Did Congress have the legal authority to bind the Office of the Presidency in conducting warrantless searches performed for national security reasons, stripping the executive branch of an inherent constitutional power?

Every President from the dawn of international wire communications well over 100 years ago until 1978 assumed this right, and the courts have always deferred to this particular power inherent to the Presidency. This is supported by case law and precedent, and is summed up in the five-page Department of Justice briefing delivered last week. In short, the Department of Justice seems willing to make the case that Bush was well within his constitutional powers. If anything, Congress may have exceeded their constitutional powers in passing FISA.

Even after passing FISA, Carter himself did not feel strictly bound by it, nor has any President since, from Reagan, to George H. W. Bush, Clinton, to George W. Bush. They have all asserted (and over the past two weeks, their DoJ attorneys have as well) that the Office of the Presidency has the Constitutional authority to authorize warrantless intercepts of foreign intelligence. This power has been assumed by every president of the modern age before them, dating back, presumably to the Great Eastern's success in 1866 of laying the first successful transatlantic telegraph cable. From Johnson, then, through Grant, Hayes, Garfield, Arthur, Cleveland, Harrison, Cleveland (again), McKinley, Teddy Roosevelt, and Taft, through Wilson, Harding, Coolidge, Hoover, to FDR and on to Truman, Eisenhower, John Fitzgerald Kennedy, Johnson, Nixon, Ford and into the Carter administration, the Presidency has had the inherent and unchallenged power to conduct warrantless surveillance of foreign powers for national security reasons.

This is a simple, unassailable fact, not matter how loudly demagogues shriek.

FISA is a case of Congress infringing upon the inherent power of the executive branch, and if it comes up as a direct constitutional challenge, FISA will most likely be struck down as Congress infringing upon the constitutional authority of the executive branch to perform foreign intelligence functions.

By creating and using this executive order, Bush merely used a right the executive branch has always maintained since the very first "President George" in 1789.

Ok now, on to the next "scandal"...

Posted by: D. | December 29, 2005 05:37 PM

Posted by: D. | December 29, 2005 05:44 PM

Thanks to patriot1957 for sharing those chilling quotes. I have one to add, and also one clarification to make.

First, the clarification: the "we will export death and violence" statement was not made by President Bush, but rather by a member of the U.S. Special Forces or CIA, as detailed in Bob Woodward's book, Bush at War.
Link: http://www.fff.org/freedom/fd0305d.asp

And the additional quote, from Nazi leader Hermann Goering: "the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the peacemakers for lack of patriotism and exposing the country to danger. It works the same in any country."
Link: http://www.councilofpeace.net/quotes.html

Posted by: Emily Messner | December 29, 2005 05:47 PM

D. cites a NY Times opinion piece by DoJ attorneys from the Reagan and Bush 41 administrations. They go on to assert that, "Overall, this surveillance program is fully within the president's legal authority, is limited in scope ... and is subject to stringent presidential review. The contretemps ... reveals much more about the chattering classes' fundamental antipathy to strong government in general, and strong executive power in particular, than it does about presidential overreaching."

So, for those who advocate a stronger, less accountable Executive Branch, there are two kinds of people: Administration insiders, and upstarts among "the chattering classes" unwilling to accept "stringent Presidential review" as sufficient assurance of Constitutional protections.

It is one thing to enhance the power of the Executive Branch, but -- especially in the "information age" -- quite another to attempt to do so outside of public scrutiny.

Once again the light of day has revealed incautious Administration insiders, too besotted with their imagined "mandate" to accurately gauge the expectations of the electorate.

Posted by: Phil, Charleston SC | December 30, 2005 07:24 AM

Have we won any victories in the War on Terror? After 9-11 we gots Homeland Security, the Patriot Act, and now the NSA is spying on us. Has all this fevered activity foiled any terrorist plots against US soil? I'd presume the government would trumpet one if they did it - maybe I haven't heard the trumpets. Even if it the details were super-secret, at least some Senator could confirm a foilage.

Posted by: Turnabout | December 30, 2005 09:33 AM

Victories in the War on Terror? Sure have. Taliban gone. Hussein gone. Al-Queda network disrupted and key members captured or killed. Libya fesses up to its WMD program. Syria pulls out of Lebanon. Elections (crude, but a first of sorts) in Saudi Arabia, Eygpt, Iraq. The UN exposed for its incompetance and criminal negligence. Europe and the rest of the world forced to finally acknowledge the Isamofascist threat born from the disfunctional polity of the mideast. I'd say we're doing pretty good overall.

The thing is, if Bush (or any other responsible president) had not taken the measures he has (and yeah, Homeland Security is a boondoggle)and another (big if) attack occurred, the left would be blaming him for NOT doing enough to secure the safety of US citizens and would probably support the enactment of measures that would make NSA "spying" or the Patriot Act provisions look like childs play.

He can't win either way, I'm afraid.

Another thing, just outta curiosity. Everyone keeps bringing up Hitler and such but never a mention of Stalin or Mao, by far greater mass murderers than ol' Adolph ever was. Why is that?

Posted by: D. | December 30, 2005 10:39 AM

When the FISA law was enacted in 1978, it was necessary to go to the local phone company to install physical wiring inside their telephone mainframe, in order to do what the Bush Administration is now doing electronically. To do otherwise in 1978 would have been breaking and entering. Essentially, what the Bush Administration is doing now is a form of electronic breaking and entering. I find it interesting also that the Bush Administration has said that they were monitoring al Qaeda and "affiliates". I wonder if some of those affiliates were groups fighting Israel such as Hamas and Hezbollah- groups which have not been hostile toward the U.S. (at least not recently with Hezbollah) but which, in 2002, were in the middle of the intifada between Israel and the Palestinians. If this is proved to be true, and my gut instincts tell me that it is, we would have been taking sides in a civil war and abandoning all pretenses of impartiality between the Israeli and Palestinian sides of the conflict. Bush seems to have a weak understanding, if any at all, of the difference between groups which threaten Israel and groups which threaten the U.S. Or perhaps he did understand, but was willing to use the power of the U.S. to carry water on behalf of a U.S. ally which has steadfastly refused to negotiate in good faith about returning lands seized in 1967 and working out some practical means of sharing sovereignty over Jerusalem. If these two steps were taken, most of the Arab anger toward Israel would vanish overnight, and then some other practical means could be worked out concerning Palestinian refugees without the need for these refugees to return inside pre-1967 Israeli borders. But as long as we persist in supporting the most extreme elements of Israeli society, we will continue to be threatened by these types of Muslim terrorists. Once a peace is made, if the terrorism persists, we will then have the full confidence and support of the Arab world in wiping out any remnants. Until that time, they remain very suspicious of our motives and perhaps rightly so.

Posted by: George | December 30, 2005 10:39 AM

Emily, it seems to me that everything that Bush has done in this regard hinges on one belief: that the threat of another terrorist attack similar to the 9-11 attack is so likely and so imminent that he must use these almost Soviet-like techniques to thwart it. He is banking on that belief on the part of the American people.

Personally, I do not feel such urgency nor do most of the people I associate with. The nature of the threat is so far removed from most of our daily lives that it is difficult to muster the sort of urgency we felt after the Pearl Harbour attack. And let's be honest here. The track record o this administration on making credible claims about the imminence of a threat to our national security has come into question of late.

George W. Bush can no longer simply jut his jaw forward and make dogged claims of his own personal resoluteness to stem another attack as a justification for all of this extra-Constitutional meddling he is doing. We cannot afford to trash 200 years of advanced, evolved Constituional development because Bush has some megalomaniacal claim that Providince designed him specifically for this role at this particular point in history. Such thinking is indicative of a self-worshipping, narcisscism rather than a genuine desire to protect the nation.

The Presidency was never envisioned by the Founders to be at the disposal of men who are so deluded by such fantastic whimsey. The powers and rights of all of the various brances of our government must be allowed to function independently of one another to prevent such men from using the swesome power at our disposal in this day and age to satisfy the romantic delusions of a swaggering, jingoist fool.

Posted by: Jaxas | December 30, 2005 11:12 AM

Funny how when Alito was nominated, the Administration spouted original intent, but now that NSA surveillance has been leaked, their argument for "inherent powers" begins to resemble "living Constitution". The notion of inherent powers actually stand the original intent behind the president's position as "commander in chief" on its head. The purpose of designating the President as commander in chief was in order to assure civilian control of the military, and thereby avoid the excesses of the English experience during Cromwellian times, rather than to militarize the executive. Indeed, at the Constitutional Convention there was a strong movement to prohibit a standing army, and it was only narrowly conceded that a small standing army to serve as a cadre might be a good idea. Congress, not the Exutive, was given the power to regulate the military. Moreover, appropriations for the military were limted to two years, thereby assuring that each new Congress would have to revisit the subject. Moreover, the early cases of the Marshall court, arising from the undeclared French Naval War of 1794, held that while Congress could authorize the use of force without declaring war, when it did so, it was an "imperfect war" which did not invoke the full panoply of war powers. As to the Prize Cases, the authority at issue there was derived from the common law offense of Trading With The Enemy,not the powers of commander in chief per se. (It was also important in that decision that Congress later ratified the actions by Lincoln.) Again, early decisions of the Marshall Court place trading with the enemy as part of Congresses plenary power to regulate trade. Note that common law can be modified by Congress, which is precisely what it did in 1917 when it codified trading with the enemy. The current Trading With the Enemy Act as well as its peacetime companion, the International Emergency Economic Powers Act, expressly exclude from the delegation of authority to the President the power to intercept and regulate communications of no commercial value, and the export and import, by any means or media, of information not controlled for national security purposes under the Export Administration Act. At best, the President can argue acquiesence, which COngress is always free to take back.

Posted by: MikeDeal | December 30, 2005 11:28 AM

Emily, I suggest you and those who appear to be so alarmed about President Bush's actions read the following essay: http://www.lewrockwell.com/orig5/young-andrew7.html . You will find amazingly similar arguments and themes regarding Executive power debated over 100 years ago in the clash between Chief Justice Taney and President Lincoln.

Based on your writings, I suspect you and many other bloggers (including the essay's author) would have supported Justice Taney had you lived during that time. Keep in mind that Lincoln's assertions of Executive power went far beyond those espoused by Bush. In the end, though, it was Lincoln, not Taney, that history vindicated and venerated. He is considered to be one of our greatest presidents and yet acts undertaken by him on grounds of Executive power are constitutionally dubious at best. For Lincoln, the ends justified the means and few today could argue otherwise given the ultimate outcome--we are one nation today without slavery and with a constitution intact.

Many in the 1860s may have held the same opinion of Lincoln then as individuals like "Patriot 1957" and "Jaxas" hold of Bush now. That is not to say that Bush will necessarily be vindicated by history, but it is too soon to know. Perhaps 50 years from now declassified documents will show that a major terrorist attack was averted through the NSA's actions. Who knows? In any case, it is far too alarmist and naive to think that Bush's assertion of Executive authority is somehow the beginning of the end of our democracy as some seem to suggest with references to Hitler. Our nation has endured curtailments of our civil liberties before during previous crises and I doubt this will be the last time . . . but we always bounce back.

History is written by the victors. I suspect that if Bush is able to prevent another terrorist attack on U.S. soil and if he is able to foster some type of stable democracy in Iraq, history will treat him far kinder than his contemporaries do today.

Posted by: KB | December 30, 2005 11:58 AM

Emily, your references in the above column refer to the modifications made to warrant requests. What you are leaving out are the surveillances that would never have reached the threshold of probable cause in FISA and therefore were not even requested, including all cell numbers and email addresses gathered from raids in Afghanistan and Pakistan. FISA needs to attach at least a name to a warrant; the point of monitoring those numbers and addresses was to find out who they belonged to. This data mining was absolutely essential to begin to ferret out terrorists within our borders who, of course, are delighted to hide behind the protection of civil liberties.

Somehow the leap is made from tracking terrorists to 'they're spying on Americans'. If you're getting calls from Wazeristan, they're listening. Too bad.

Posted by: Jersey Independent | December 30, 2005 12:17 PM

To D: I agree that Taliban, Hussein and Al-Queda gone are good things, but they're all foreign successes. Do we have any domestic ones? How do we know that 9-11 wasn't just an abberation? It could be that Osama was a genius level terrorist, he had his one big success, and the other terroriss don't have a clue besides suicide and roadside bombs, and we're spending all this money building walls against ... nothing.

Posted by: Turnabout | December 30, 2005 12:27 PM

Why not dismantle Homeland Security and spend the money on the Army?

Posted by: Turnabout | December 30, 2005 12:28 PM

To KB:

Whatever the comparison between Lincoln's actions and Bush's, an essential disctintion remains: Lincoln's actions were always under the auspice of a quantifiable, discrete, and known conflict. When the Confederacy surrendered, Lincoln's claims of extra-Constitutional powers ended. There is no such marking point for Bush's claims of "war powers." Three years ago, I had occasion to ask a visiting scholar who was speaking in favor of the Patriot Act when he believed the War on Terrorism would end. And after a few sputters, the response was perhaps not in our life time. It is unacceptable and untenable that the powers of the Presidency be expanded carte blanche for such a time.

The "Cold War" played with much greater stakes as it was not despaired of that the enemy would acquire nuclear weapons: they had them in abundance. However, the office of the President remained limited to its envisioned Constitutional, non-war powers during that era.

Any justification put forth on Bush's actions must stem from the intrinsic powers of the office, not ad hoc "war powers" lest the exception become the rule and the presidency become a kingship.

Posted by: Matthew | December 30, 2005 12:45 PM

Maybe the solution is to make the war powers threat-specific. We know the fundamentalist Islamist cause will not have a surrender at Appomattox, nor are they reigned in by mutually assured destruction. They don't wear uniforms, they don't have a country or leader to sign anything. So we have to be diligent in tracking every available lead, including those not meeting a FISA legal standard. Perhaps the debate should be to legislate powers designed to counter jihadism by all and every means, if for no other reason to put to rest the "they're spying on Americans' refrain. Given the state of Congress today, don't hold your breath.

As far as an 'unacceptible, untenable' length of time, tell it to Zawahiri, not us. We don't get to choose how the enemy thinks; we only get to find a strategy to win.

Posted by: Jersey Independent | December 30, 2005 01:17 PM

Lincoln was also a completely different set of circumstances. He surrounded himself with dissenters who were not invested in increasing Lincoln's power. He had a reputation for honesty.

This president has squelched dissent, surrounding himself with sycophants who wish to increase his power. And whether or not you believe he's a bald faced liar, a patsy, or gee whiz, just honestly didn't realize that opening every speech on Iraq with a reference to 9-11 or al Qauda would have the effect of convincing 70% of Americans that the two were connected, the end result is the same - you can't believe either his words or his verbal impressions.

And I would be careful giving him any power that you wouldn't want Hillary to have.

Posted by: patriot1957 | December 30, 2005 01:23 PM

To Matthew:

The war on terror may indeed go on beyond our lifetime, but the way it is fought and the tools used can easily be changed to avoid your concerns. If the Supreme Court finds they are unconstitutional, the President will have little choice but to comply with the Court given his precarious political position.

Even if that does not occur, so long as we have elections in this country, the people can elect a new president that pledges not to follow Bush's practices. Further, the people can elect a Congress that pledges to further restrain the Executive.

Therefore, the fact that the conflict may not be "quantifiable, discrete, and known" does not necessarily mean that such assertions of Presidential power will continue. They will only continue in perpetuity, if the American people choose to allow them to.

Posted by: KB | December 30, 2005 01:38 PM

I would totally want Hillary to have it. Matter of fact, it would be better if a Democrat were in there, so we could go on about the business of tracking and killing jihadists and not have this asinine debate about Bush.

Of course, the question is, would they actually do it?

Posted by: Jersey Independent | December 30, 2005 01:40 PM

The system of checks and balances is a great one: it's only too bad that Mr. Bush believes he is above it. If his legal advisors believes that the FISA is an unconstitional curtailment of his inherent executive powers by the Legislature, why would they defer any more to the ruling of the separate and equal judicial branch? That is assuming, of course, that they ever let any dispute arise to the level of being adjuciated.

Once you bequeath yourself unfettered power of action in the defense of a war which you define the origin and end-point, there is no altar at which you will bow.

Posted by: Matthew | December 30, 2005 01:54 PM

The origin is a gigantic hole in lower Manhattan. The end-point will be decided long after Bush, most likely between two strains of Islam.

Posted by: Jersey Independent | December 30, 2005 02:04 PM

And the enemy is?

Everyone who hates America?

There was an article in the Onion a year or two ago along the lines of, "Bush Amazed to Discover 99% of Saudi Arabia Arabic" and that he then pledged to make it safe for the non-Arabs living there. Somehow, the articles seems less funny now.

Posted by: Matthew | December 30, 2005 02:08 PM

President Bush will bow at the altar of the next presidential election, so it is at that point that those who oppose Bush's tactics can assert their views--if they can convince the majority of American voters to agree with them.

Posted by: KB | December 30, 2005 02:09 PM

"President Bush will bow at the altar of the next presidential election"

So that's the only limitation to Mr. Bush's powers? The next presidential election? Until then he holds absolute sway? Sad, sad, sad indeed.

Posted by: Matthew | December 30, 2005 02:13 PM

Not really--there is a congressional election before then as well as possible Supreme Court reviews of some of the President's assertions of Executive power. If, however, the Supreme Court sides with Bush and Congress defers to him, then you have another opportunity at the next presidential election to elect someone more to your liking.

Posted by: KB | December 30, 2005 02:21 PM

KB-

I think you are missing the point. If the President conducts the surveillance without oversight, than the judiciary (Supreme Court) doesn't get a chance to sound off on it. You say "Well if the Supreme Court decides that the President is unconstitutional..." Aren't we having a debate about WHY the President bypassed... a court? When you say he has no choice I say, he already did and he bypassed the judiciary. Thoughts?

If the President shot someone on national television, was asked about it later and lied, would the American public respond "I guess we'll right the wrongs in another 4 years even though this President can't run for reelection!"

Your views of Presidential responsibility seem extremely simplistic to me. President's are only accountable once every four years? Representatives once every 2? Senators once every 6? Do you really believe that's either how it is or should be?

Somehow I don't even think we are debating the same thing. Do people who support the FISA bypassing also support unrestrained executive power during their lifetime? Do the people who think the President acted incorrectly want terrorists to be safe?

If you disagree with the oversight methods in place, suggest new ones, but don't just dogmatically support your guy. If FISA is dangerous, what other method do you suggest to ensure safety AND our civil liberties?

Posted by: Will | December 30, 2005 02:58 PM

Lets look at the sum of these remarks:

"President Bush will bow at the altar of the next presidential election"
'So that's the only limitation to Mr. Bush's powers? The next presidential election? Until then he holds absolute sway? '
'President's are only accountable once every four years? Representatives once every 2? Senators once every 6? '

Yes, this is frighteningly simplistic

This administration has carried gerrymandering to new heights, making it unlikely that the House will be reigning in the president anytime soon. The Repubs also did something else that caught little public scrutiny in the last election - they publicy endorsed their chosen candidates in the primary. Yes, the Bush cabal endorsed their candidates in the PRIMARY, thus ensuring that the Repub candidates elected from the gerrymandered Repub districts would already be in their pocket. And were it not for the more recent turn of events I think we would have seen many of the moderate Republicans go down in primary races, particularly Chaffee et al. So all you have to do is control the party that wins the election and power is yours. And that's no longer so hard to do when your friend makes the voting machines and your party controls state legislatures.

The election process in this country has now become suspect. When the head of the voting machine company that deliberately makes the voting process untraceable and promises to deliver a state to one candidate, that is a problem. The ease with which the electronic machines were hacked is now public record. Have you read the GAO report, Sept 2005 - "that electronic voting machines are not secure, not accountable, not transparent, not accurate, and not certifiable." HB3 is still on the agenda in Ohio, pretty much killing free elections there, and states with repub majority state legislatures are trying to force through similar bills. The Ohio bill actually exempts electronic voting machines from public scrutiny!

How many times was Saddam overwhelmingly elected? Elections don't mean a hell of a lot when they aren't free. And ours no longer are.

No, just not having Bush run again won't fix the problem. Its a cabal, not one guy.

Posted by: patriot1957 | December 30, 2005 04:14 PM

D and KB, thanks for your reasoned, articulate posts. I especially enjoyed your 1st one, D!

At this point, as I note in the next thread Emily offered, the NYTimes is likely shitting bricks knowing the Justice Dept is gearing up for finding who leaked the top secret NSA intel.

The Times may have thought that it would rally the Democratic Party to oppose the Bush-Hitler, but few Democrats in office have picked up the gauntlet to fight for the "sacred civil liberties" of the enemy. The Times itself set the trap they walked into when they insisted that the Leakers of super-duper housefrau/secret agent Plame's ID must be investigated by a Special Prosecuter and uncovered and prosecuted to the fullest extent of the law for sake of protecting national security.

Then one of their own was ensnared and imprisoned and cost the NYTimes millions in legal costs. Now the gunsights are settling on the Times again to find out who made a far more serious breach of national security - one punishable by 20+ years even a charge of treason in wartime.

The leak may not be from the NSA. It could be a WH staffer, the CIA, or a Democrat Congress Rep or Senator. None are above the law and the legal documents they signed accepting severe prison time and massive fines, even possible death penalty charges in wartime - if they disclosed NSA material to the press and that info fell into enemy hands. Today, a panel of legal experts said there is no whistleblower protection offered in the statutes that shields any leaker from the legal non-disclosure documents they signed. Also, this has been held for over a year so we may have originally had a partisan leaker who thought that talking to the Times could turn an election, then sat disappointed as the Times lawyers flailed about.. We know the CIA has leaked and there is a careerist old guard who got jobs from the days when a Democratic Congress ruled or when Carter revamped the organization. We know that key Democrat leaders had this right before the 2004 elections...

It's a gift to Bush. If a democrat or liberal betrayed the country with the radiation monitoring leak, the secret prison leaks (also rumored to be under Justice Dept investigation and possible special prosecutor assigning), or top secret NSA programs disclosure sniffing them out will have big consequences. If the reporters say this while bigger than Plame by far should shield the leakers from prosecution, they will likely follow the Judy Miller path..

It also splits the Democrats. One side wants to find and detect the enemy. The other side of the Dems puts enemy civil liberties first and foremost.

The American people do not want another 9/11 and the polls are showing a large majority do not want liberals undercutting the nations vigilance, it's defenses against Islamoids or other terrorist outfits like ELF. The average American doesn't buy that terrorists or American agents of those hostile foreign entities has higher rights to privacy than the average Joe and Jill does to having their lives and family's lives secured as best as possible. And when they understand the choice was either listen in on hundreds of millions of conversations to flag the enemy at work or go voluntarily blind and only "prosecute" after a "crime" like 9/11 happens given the impossiblity of hiring hundreds of millions of judges to issue hundreds of millions of warrants daily - they already spoke. They agree with the 9/11 Commission that the wall between intelligence and law enforcement prevented us from stopping 9/11, that the dots should be connected, and they don't give a hoot about "Precious enemy rights".

Posted by: Chris Ford | December 30, 2005 07:03 PM

Chris,
Totally agree. The big hue and cry over the nickel and dime Plamegate case is going to haunt these guys.

This story is a piece, albeit a huge piece, in the ongoing saga of young Arthur Sulzberger's reign at the Times, which moved the Grey Lady from the 'paper of record' to an advocacy sheet using its news pages, especially A1 above the fold, to dispense editorial positions.

One caveat here: Bush's reference to this leak as "shameful" is disturbing. That's a fairly wimpy characterization. It's not shameful, it's a criminal act. Already we are hearing, as if on cue from the mainstream media tonight, across the dial, that these leakers were "whistleblowers". That notion must be defeated vigorously in a court of law. Either Risen goes to the slammer big time, or he talks. End of discussion.

Posted by: Jersey Independent | December 30, 2005 08:32 PM

To Will:

Not sure if I'm really following your line of reasoning, but my point is simply this. There are plenty of checks and balances in our system today to prevent any President from going even as far as Lincoln did--so long as the American people back the restraints on the Executive (in the event of a nuclear attack, I imagine the American electorate would be more than willing to give the Executive even more far-reaching powers)

The judiciary certainly has an oversight role through the Supreme Court for issues deemed to violate the constitution and the Court, as well as the Congress, can at any time constrain the Executive as we have seen with McCain's anti-torture amendment. Beyond this, all our political leaders--even elected cabals--are subject to elections, which is another opportunity to hold them to account. Also, don't forget that the media can be another check as we have seen with all the stories leaked out regarding the NSA and secret CIA prisons.

As for the faults in our electoral system that "Patriot 1957" points to, the system may have its problems but it's the only one we have. Even with its faults, I still think it's the best system in the world.

Posted by: KB | December 31, 2005 03:07 AM

If anyone is still wondering about 'liberal bias in the mainstream media' check out the following last four paragraphs of the Justice Dept probe of the NSA leaks in today's Washington Post:

"Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, a journalism advocacy group, said the leak probe underscores the need for a federal "shield law" to protect reporters' sources. She and other observers also said that the NSA case appears to be less controversial, from a journalistic point of view, than the Plame case, which involves journalists attempting to protect sources allegedly engaged in political attacks.

"It doesn't seem to me that this leak investigation will take on the importance of the Plame case," said Carl W. Tobias, a law professor at the University of Richmond. "The bigger story here is still the one about domestic spying and whether the president intends, as he said, to continue doing it."

The American Civil Liberties Union, which has argued that a special prosecutor should be appointed to determine whether Bush violated federal wiretapping laws, called the leak probe an unwarranted attack on whistle-blowers.

"Attorney General Gonzales is cracking down on critics of his friend and boss," said ACLU Executive Director Anthony D. Romero."


A majority of us think they are not whistleblowers but, in fact, national security-blowers (Rasmussen Poll: 64%). But this story will either follow the whistleblower narrative or disappear. Those of us who complain will be relegated to the 'extreme right' category, despite the fact that this leak of classified information has far greater negative consequences to the country than the Plame leak.

Only the appointment of a special counsel with the zeal and professionalism of a Patrick Fitzgerald will give this side of the story any continual coverage, as the mainstream media will be all over the hyperventilating Bush bashers and grandstanding politicians wailing that they're 'spying on Americans'.

It's all so pathetically predictable.

Posted by: Jersey Independent | December 31, 2005 02:36 PM

What's pathetically predictable is the amount of apologism that Bush gets from his supporters.

Posted by: ErrinF | January 2, 2006 05:24 PM

I would suggest that the likliest reason for dodging the FISA court would be that Bush is tapping into groups and individuals who would not warrant a warrant...you should excuse the expression. After all, how do you get a court's permission to spy on Quaker citizen groups? I smell deja vu all over again.

Posted by: CS | January 3, 2006 11:56 PM

"And the additional quote, from Nazi leader Hermann Goering: "the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the peacemakers for lack of patriotism and exposing the country to danger. It works the same in any country."

It's funny isn't it, how context is never brought up. BE A BLANK MINDED FOOL, RIGHT ?

First of all, GERMANY, strangely enough, WAS BRING ATTACKED WHEN HERMAN GEORRING WAS IN POWER, IN FACT IT WAS LEVELED !
Not surprising, that when you "tell the people they are being attacked ", they actually do respond, sometime between the first bomb, and the last residence standing, which, pretty much describes what Herman Georring LEFT FOR HIS PEOPLE IN GERMANY.

Secondly, the one need only recall that, GERMANY INVADED OTHER COUNTRIES !!!!!!!!
GEORRING "TOLD THE PEOPLE THEY WERE BEING ATTACKED ".

GUESS WHAT HAPPENED ? THEY LISTENED AND OBEYED- ESPECIALLY IN FRANCE, WHERE SURRENDER CAME NATURALLY.

Why do you think GEORRING said it works the same in any Nation ?

YES, THAT'S WHY HE SAID IT.

THERE, NOW YOU SHOULD REALLY BE CHILLED.

THE NAZI MARCH WAS BLASTING WHOLE NATIONS TO THEIR KNEES- OCCUPATIONS AND GOVERNMENTAL TOTAL COLLAPSES WERE FROTHING ACROSS THE CONTINENT.

HERMAN GEORRING HAD A LOT OF EXPERIENCE TELLING THE PEOPLE THEY WERE BEING ATTACKED, AND PLENTY OF REASON TO BELIEVE IT WORKED IN ALL NATIONS THE SAME, NOT JUST THE MANY HE TRAMPLED TO THE GROUND.

IT WOULD BEHOOVE PEOPLE TO THINK, SO THEIR BONES COULD BE CHILLED TO THE CORE.

Posted by: SiliconDoc | January 5, 2006 05:52 AM

Since we're doing quotes in this thread, I think we ought to see what kind of people put the 5 or so chilling quotes up on the net for netizens to freak out over.
Let's take the linked page and see who is the head of the website, and see what beliefs that person holds, so we can estimate if the old adage about anti-Americanism, tree hugging, and hating the troops, and USA fits appropriately.

http://www.councilofpeace.net/quotes.html

http://www.councilofpeace.net/ol.html

Below the first link, is the Founders page, let's see what he has to say about the USA:

...But we, too, have a dark side that we are not facing. ***

I apologize to the earth for all the poisons.

I apologize to the oceans for wanting to kill the love and light of the exquisite marine mammal beings.

I apologize to the air for the pollution, the chem trails.

I apologize to the heavens for the weapons in space.

I apologize for our role in creating the global, usury-based, credit-driven, debt-servitude economy.

I apologize for the FDA, which is so much protectionism for corporate greed, just another hypocritical American lie.


I apologize to the Nation of Hawai'i for the holocaust of your people.

I apologize to Salvador Allende and the people of Chile for murder and for destroying your fledgling democracy.

I apologize to Argentina, Venezuela, Brazil, El Salvador, Guatemala, Greece, Iran and all the countries of the world
that we have raped and pillaged.

I apologize to Cuba for the Bay of Pigs and for despising your self-chosen form of government.

I apologize to American Samoa for polluting your happy culture.

I apologize to Africa and Black America for 300 years of slavery.

I apologize to our hostages if we purposely botched Carter's rescue mission to help elect Reagan.

I apologize to the hostages we now hold and torture in violation of the Geneva Conventions.

I apologize to the people of Islam for trying to make you an enemy.

I apologize to Korea for splitting you asunder.

I apologize to Japan for two bombs and so many deaths that were not really necessary.

I apologize to Iraq for making our lust for global domination, your oil and a family vendetta the excuses for invading
your country, and to Saddam Hussein for putting you in power, arming you, pretending to acquiesce
to your plans to invade Kuwait and then acting like we didn't.

I apologize to Saudi Arabia for railroading you into allowing our armed forces to occupy your country.

I apologize to Osama bin Laden for training you to be a terrorist and then making you the scapegoat.

I apologize to the people of Israel for backing you no matter what horrendous thing you do.

I apologize to Afghanistan for taking your government and then allowing things to fall into chaos.

I apologize for all the corruption, bigotry, cover-ups and lies in our Law Enforcement and Criminal Justice Systems,
our corridors of power, our Supreme Court and our hearts.

I apologize for letting the Office of the Presidency, in actuality, slip through our hands.

I apologize that when the US Presidency was so obviously stolen from the hands of the peope, we
could not muster one Senator of true courage and integrity to stand up and say it so.

I apologize for all the lies and duplicity behind our foreign and domestic policies.

I apologize that we must murder the few true statesmen we do bring forth.

I apologize for having become the bad guys.

And if we purposefully infested our ghettoes with drugs in order to arrest our people for using them,
I apologize to our minorities and the underprivileged who would be hard put to just say no.

And if, as many believe, 9/11 was an inside job, I apologize for creating
and using it to advance the agenda of a polluted sector of our society.

And if, as millions of people in the world believe, American expertise
was involved in the purposeful development and deployment of the AIDS virus,
I kneel before God and the world and beg for forgiveness.

of wealth, control and power.

***

I renounce all the evil America has perpetrated in the world.

Peace, love and blessings,

Mark L. Landau

***************************************

I cut a lot of his kookball crap out, but you get the picture.

NOW,WHEN RIGHT WINGERS CLAIM THEY KNOW THEY ARE TALKING TO AN ANTI-AMERICAN HATER, THERE IS MUCH ARGUING LEFT TO DO ON THAT TOPIC !

Thanks so much for those that felt the need to provide the quotes and the links.
************************************

Posted by: Silicondoc | January 5, 2006 06:10 AM

"Only the appointment of a special counsel ... will give this side of the story any continual coverage, as the mainstream media will be ...hyperventilating ...wailing that they're 'spying on Americans'.
It's all so pathetically predictable.

Jersey Independent "

I'm actually hoping for a capture and immediate execution of the leaker.

I figure that will give the mainstream media and people like Mark L. Landau a life of brown paper sacks over their faces, permanent hyperventilatiion.

Posted by: SiliconDoc | January 5, 2006 06:24 AM

"This is an Administration that has treated the American public like scared 4th graders, and we've acquiesed to it. "

"not 4 years after we were propagandized into believing we are more secure--as the 9/11 Commission made clear, we're not"

Posted by: bklyndan | Dec 29, 2005 3:12:05 PM

Hmm, I guess it did work. That's terrible living in fear of no increased safety for four years.
Since we're not safer, what grade will the 4th graders be in after the next devastating attack ?

Whom do you recommend we elect in '08 to give us the real safer America ?

Posted by: SiliconDoc | January 5, 2006 06:33 AM

Ex Parte Milligan (1866)
"The constitution of the United States is a law for rulers and people, equally in war and peace, and covers with its shield of protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of men that any of its great provisions can be suspended during any of the great exigencies of Government."

http://usinfo.state.gov/usa/infousa/facts/democrac/26.htm

Posted by: Steve J. | January 10, 2006 04:20 AM

D: In short, the Department of Justice seems willing to make the case that Bush was well within his constitutional powers.
======================================

Um, isn't the DOJ in the Executive Branch?

Posted by: Steve J. | January 10, 2006 04:28 AM

D: Your claim that " Even after passing FISA, Carter himself did not feel strictly bound by it" is a LIE.

From your own link:
1-104. Section 2-202 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any electronic surveillance, as defined
in the Foreign Intelligence Surveillance Act of 1978, shall be
conducted in accordance with that Act as well as this Order.''.

1-105. Section 2-203 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any monitoring which constitutes
electronic surveillance as defined in the Foreign Intelligence
Surveillance Act of 1978 shall be conducted in accordance with that
Act as well as this Order.''.

Jimmy Carter.

Posted by: Steven J. | January 10, 2006 04:31 AM

D:FISA is a case of Congress infringing upon the inherent power of the executive branch, and if it comes up as a direct constitutional challenge, FISA will most likely be struck down
========================================

Then why didn't Pres. Fredo challenge it in court instead of hiding his actions?

Posted by: Steve J. | January 10, 2006 04:33 AM

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