Joe Klein To Liberal Dems: Come Home (To Planet Earth)

Joe Klein explains that liberal Dems have lost touch with the country on the NSA warrantless eavesdropping story:

A dodgy response at best, but one invested with a larger truth. For too many liberals, all secret intelligence activities are "fruit," and bitter fruit at that. The government is presumed guilty of illegal electronic eavesdropping until proven innocent. This sort of civil-liberties fetishism is a hangover from the Vietnam era, when the Nixon Administration wildly exceeded all bounds of legality—spying on antiwar protesters and civil rights leaders.

Henry Kissinger even wiretapped his own aides. But the "all fruit" assumption doesn't take into account the strict constraints placed on the intelligence community after the Nixon debacle, or the lethally elusive nature of the current terrorist threat. The liberal reaction is also an understandable consequence of the Bush Administration's tendency to play fast and loose on issues of war and peace—rushing to war after overhyping the intelligence on Saddam Hussein's nuclear-weapons program, appearing to tolerate torture, keeping secret prisons in foreign countries and denying prisoners basic rights. At the very least, the Administration should have acted, with alacrity, to update the federal intelligence laws to include the powerful new technologies developed by the NSA.

But these concerns pale before the importance of the program. It would have been a scandal if the NSA had not been using these tools to track down the bad guys. There is evidence that the information harvested helped foil several plots and disrupt al-Qaeda operations.

There is also evidence, according to U.S. intelligence officials, that since the New York Times broke the story, the terrorists have modified their behavior, hampering our efforts to keep track of them—but also, on the plus side, hampering their ability to communicate with one another.

Pelosi made clear to me that she considered Hayden, now Deputy Director of National Intelligence, an honorable man who would not overstep his bounds. "I trust him," she said. "I haven't accused him of anything. I was, and remain, concerned that he has the proper authority to do what he is doing." A legitimate concern, but the Democrats are on thin ice here. Some of the wilder donkeys talked about a possible Bush impeachment after the NSA program was revealed.

File this under "A Government of Men, Not of Laws": Gen. Hayden has taken an oath to uphold the Constitution (as have Bush and Cheney).  Now, my friends on that left may not be particularly heartened by the reminder that Bush's personal oath is involved with the NSA warrantless eavesdropping.

However - did Gen. Hayden really throw over many years of service to his country, under both Democrats and Republicans, simply because Bush ordered him to?  Did the entire NSA abandon its "don't spy on Americans" ethos simply because Dick Cheney is an intimidating presence?

Let's borrow from Scott Shane of the NY Times, writing last December:

The episode could revive old fears that the secret agency is a sort of high-tech Big Brother. It was such fears - based on genuine abuses before the mid-1970's, hyperbolic press reports and movie myths - that General Hayden worked to counter as the agency's director from 1999 until last April.

"The image of N.S.A. has been muddied considerably by this revelation," said Matthew M. Aid, an intelligence historian who is writing a multiple-volume history of the agency. Mr. Aid said several agency employees he spoke with on Friday were disturbed to learn of the special program, which was known to only a small number of officials.

"All the N.S.A. people I've talked to think domestic surveillance is anathema," Mr. Aid said.

Emphasis added - did the entire agency go sour on 9/11?

There is an alternative view, of course - folks at the NSA may have believed they were operating inside the law.  Certainly Gen. Hayden himself was in a position to judge Congressional reaction, since he delivered some of the key briefings, and, apparently, heard very little negative feedback.

William Arkin of the WaPo joins in with the "silence gives consent" view - after four years of acquiescence, why is Congress suddenly whinging about the NSA?  Did someone switch the Congressional coffee-brewer from decaf to regular?  Not quite:

I think that Rep. Harman is going to find that the President indeed acted under his authority in the Constitution, under the National Security Act, and under a web of other statutes, including implicit Congressional consent. If Rep. Harmon desires to rewrite the National Security Act for the modern era, she'd have my support. But short of changing existing law and implementing better rules for Congressional oversight of secret programs, little will come of the NSA scandal.

The problem is that the Congress has become so co-opted into the secret world that it has sacrificed its own Constitutional independence and authority.

OK, so count Mr. Arkin among those who think the program may be legal.  For myself, I am in agreement with the Congressional researchers who concluded that the program is firmly in a grey area:

President Bush's rationale for eavesdropping on Americans without warrants rests on questionable legal ground, and Congress does not appear to have given him the authority to order the surveillance, said a Congressional analysis released Friday.

The analysis, by the Congressional Research Service, a nonpartisan research arm of Congress, was the first official assessment of a question that has gripped Washington for three weeks: Did Mr. Bush act within the law when he ordered the National Security Agency, the country's most secretive spy agency, to eavesdrop on some Americans?

The report, requested by several members of Congress, reached no bottom-line conclusions on the legality of the program, in part because it said so many details remained classified. But it raised numerous doubts about the power to bypass Congress in ordering such operations, saying the legal rationale "does not seem to be as well grounded" as the administration's lawyers have argued.

The governmental folks with the strongest insitutional imperative to argue that the Executive Branch exceeded its authority are not sure whether the President did so.

Well, I am not sure either, nor have I been.

Comments

[David Walser]

It appears to me that Bush's critics have driven their rhetorical car off a cliff and are having a hard time putting the car into reverse and getting back on the road. First we were told the NSA's actions were clearly illegal. Now, the more honest of his critics have been forced to admit that the legality of the NSA program is at worst uncertain. Still, it's argued that Bush should have complied with the requirements of FISA, even if not legally required to, out of concern for the rule of law. It's on this firm grounding, that, in a time of war, the President took actions to defend our country with the good faith belief the actions were legal, his critics call for impeachment?

[Cecil Turner]

Klein nails it, first with the headline: "How to Stay Out of Power"; and then with the sum-up:

But there is a difference. National security is a far more important issue, and until the Democrats make clear that they will err on the side of aggressiveness in the war against al-Qaeda, they will probably not regain the majority in Congress or the country.

Way to go, Joe! (Now let's see if anyone's listening.)

[Wonderland]

It appears to me that Bush and the Republicans have driven their rhetorical car off a cliff and are having a hard time putting the car into reverse and getting back on the road.

Exhibit A is the intentional misrepresentation of critics' arguments in order to win a debate that does not exist. Everybody wants the NSA to eavesdrop on Al Qaeda agents in the U.S. The question is whether Bush has the unitary authority to do so when the targeted suspect is an American citizen in the U.S., without reference to the laws of Congress covering just that instance or a FISA court whose job is to prevent abuse.

Exhibit B, relatedly, is Bush defenders' almost robotic adoption of legal theories that justify Bush's actions, but which cannot be squared with any reasonable notion of limited Executive power or checks and balances. Bush is explicitly arguing that because we are at war, he has inherent authority under the Constitution to unilaterally and secretly authorize surveillance that targets Americans that he has unilaterally and secretly determined are linked to Al Qaeda. (Corollary legal theory: Bush can waive the restrictions of the torture ban, duly enacted by Congress specifically to tie Bush's hands, if Bush decides it's necessary.)

Legally, constitutionally, these arguments are hogwash. And no amount of rinky-dink "gray area" arguments can paper over that.

Exhibit C, of course, is that Tom et al. will keep peddling them until the car hits the bottom of the ravine. At 9.8 m/s/s, it can't be much longer now. Long live King George.

[clarice]

It's terribly hard for me to take seriously enough to read a posr which references "King George"--especially since once again the President was able to fill needed positions by recess appointments.

[Gary Maxwell]

Count me amonst the "robots" who are espousing "rinky dink" "hogwash" to keep us free from terrosist plots. Long live King George, especially because of how it irritates the Wonderland dwellers infected with terminal BDS.

[danking70]

Personally, I can't wait for King George's 3rd Term.

[TM]

Legally, constitutionally, these arguments are hogwash.

Oh, well, hard times for the Congressional researchers who settled for "grey" when asked about this program.

Why didn't they use the phrase "hogwash", or anything like it?

And, if I recall, even the Times is fulminating a bout a program that "may" be illegal.

Or may not be.

[maryrose]

Wonderland:
You need to brush up on your history of these United States of America. Also while you are at it consider how much you view is tainted by your acceptance of whatever some lawyermight say and his/her understanding of our Constitution. The POTUS has powers that go beyond legislative and judicial which you boy Clinton also used.

[epphan]

Sorry, Wonderland. I'll match your robotic lawyers saying it's illegal with an equal number of lawyers saying its legal. In fact, I bet we can find an equal number of judges, as well....woops. I spoke too soon. Of course your legal analysis is correct. How could 14 bajillion other opinions be wrong.

[maryrose]

Your theory of "limited executive power" is flawed.

[Wonderland]

Gary:

I think you have what is known as Type B BDS, symptomized by the automatic acceptance of any argument, no matter how preposterous, offered to ostensibly rebut criticisms of Bush, in the belief that such criticisms must be the direct result of Type A BDS. It's a far more serious malady, but unfortunately there won't be a cure until early 2009.

[Anonymous Liberal]

Klien's column is a muddled mess that conflates two very different concerns. The first is the concern that, without judicial oversight, spying powers will be abused. While Bush critics have raised this concern (and this is the concern that prompted the passage of FISA in the first place) this is, at best, a secondary concern. It is essentially a policy dispute over what the proper level of oversight SHOULD be.

The most serious concern raised by Bush's critics is that the president overstepped his constitutional authority when he authorized this program without getting Congress to first change the law. I am in this camp (along with Senator Brownback and Thomas Kean, the Republican Chairman of the 9/11 commission). That Klein has his head so far up his ass that he doesn't understand this distinction (or that this is not a partisan issue) is not surprising.

As for the Congressional Research report, Tom, I think you understate it's significance. The report uses a guarded and measured tone, I think, largely because of the gravity of its conclusions. Yes, the report refrains from stating flat-out that the President broke the law. But to quote Orin Kerr, "To condense its 44 pages into a sentence, it says that if you accept that the NSA program violated FISA, then the claims in DOJ's letter as to why the AUMF or Article II trump FISA are relatively weak."
The reason the report is so circumspect is because the researchers don't know enough about the actual details of the program to know for sure whether it violates FISA. But since the Bush administration isn't even arguing that the program complies with FISA, it's a fairly safe bet that it doesn't.

The report says that the President's legal position is "dubious," a word which I think they are using somewhat euphimistically. Either way though, I don't think it's quite accurate to describe their conclusion as being that the program is in a "gray area." They clearly doubt very much that the justification given by the DOJ would hold up in court. In other words, it's very clear where they would place their bets as to this program's legality.

[Gary Maxwell]

Wonderland

Do you think it improves your argument by using such loaded words as "rinky dink" or "preposterous"? I am just wondering. And just what do expect is going to happen in 2009? Go ahead, we will all laugh out loud when you say it.

[Wonderland]

TM:

I never said the program was definitely illegal. We just don't know enough about its details to say one way or the other. (I would, however, say that whether the President engaged in arguably criminal behavior -- because that's what violating FISA is: criminal -- is certainly newsworthy.)

But, in any event, the legal arguments offered to justify it are most certainly, shall we say, unavailing. No court (except maybe a Roberts/Thomas/Alito tribunal) would accept those arguments. If you read the CRS report, even just the last paragraph, that's what they say, albeit in couched, careful, and lawyerly terms. Heck, it's nonpartisan, so you wouldn't expect them to just come out and say "The President broke the law!!!" -- would you? Especially since whether the President broke the law is, at base, a political question decided by the Senate.

The NSA program is a secondary issue. The real issue is what, if any, limits Bush believes there are on his powers. Again, I point you toward the torture ban signing statement. It's all right there in plain English, and it's lame for you to mischaracterize critics' arguments and pretend that it isn't.

[Syl]

Wonderland, btw, what does Hillary have to say about the NSA issue?

[Gary Maxwell]

No court (except maybe a Roberts/Thomas/Alito tribunal)

You forgot Scalia! Sometimes you have to stop and wipe the fresh frothy foam off so that you get the script right.

[Wonderland]

Gary wrote:

"Do you think it improves your argument by using such loaded words as "rinky dink" or "preposterous"?

Probably not, but I figure I'm unlikely to win anybody over on this issue anyway (especially those with Type B BDS), so at least I'll write colorfully.

I will, in all seriousness, state unequivocally that any argument that the President has inherent authority under the Constitution or implied authority under the AUMF to conduct warrantless surveillance targeting American citizens in the US is indeed "rinky-dink" and/or "preposterous."

Gary also wrote:
"And just what do expect is going to happen in 2009?"

Um, George Bush will cease to be President, won't he? And both types of BDS will, thankfully, be things of the past.

[danking70]

What happened to King George, Wonderland?

[Wonderland]

Last one for Gary:

Dude, I didn't use Scalia for two important reasons. One, it was a tribunal. So if I added a fourth judge then the numbers would have been off. Two, Scalia is not an unabashed apologist for Executive authority, unlike the other three. He dissented, correctly in my view, in Hamdi and would likely not approve of the arguments now being forwarded by Gonzales on this issue.

But speaking of the script, thanks for sticking to yours.

[Gary Maxwell]

We are agree that you are unlikey to win over any converts, due to: (1) your argument and (2) your stype of argument.

I am thinking of a constitutional amendment to remove the amendment limiting the President to two terms. Its seems so unfair, since he is just getting good at his job. Wont you help out in this effort for the good of your country?

[Gary Maxwell]

Just by the way, a tribunal is a "court of justice" or "the place where justices sit in a law court". There is not an embedded reference to three in the general public's understanding of the term. It derives from tribune. In roman times a military tribune was one of six officers. And that is where we are headed with the Supreme Court once Stevens and Ginsburg move on for health reasons!

[Anonymous Liberal]

You forgot Scalia! Sometimes you have to stop and wipe the fresh frothy foam off so that you get the script right.

Wonderland beat me to the punch on this one, but he/she is very much right. If you read the Hamdi opinion, Scalia is clearly very hostile to the administration's theory of executive power. I'd be very surprised if he agreed with the Bush administration on this one.

[kim]

One flight makes you moonbat,
And one wrench, a wingnut.

Quoth the kool-aid drinking rabbit,
In the Castle Keeper's Hut.
=================================

[Wonderland]

Gary:

Technically correct, of course, but I was just trying to be a smart-alec. Hence the italics. Can't get one by you, though.

[Gary Maxwell]

Anton Scalia hero of the left. "One pill makes you taller and one pill makes you small and the ones that mother gives you dont do anything at all." Grace Slick

[Larry]

To assume that the CRS report is non-partisan is naive. This is a question of executive v. legislative power, not left v. right. The C stands for Congressional.

[maryrose]

The CRS is a report, nothing more nothing less. One set of opinions which you either buy or you don't. I don't happen to buy it.

[danking70]

Sorry Larry,

"C" has always stood for Cookie and that's good enough for me.

[Cecil Turner]

The most serious concern raised by Bush's critics is that the president overstepped his constitutional authority when he authorized this program without getting Congress to first change the law.

Which would require a public debate; during which our adversaries would undoubtedly "have modified their behavior, hampering our efforts to keep track of them." I find that whole line of argument completely unconvincing. Decry the program if you wish. Say it's too dangerous to democracy to be allowed in our Republic, or that the current emergency doesn't warrant it. All are arguable points. But disclosure has consequences, and pretending we can have public discussions of covert surveillance techniques without compromising the programs is simply not on. (Especially when expanding an existing program to allow for a particular type of intercept, as in this case.)

[Anonymous Liberal]

Well, Cecil, let me ask you this. Now that the Times has broken the story and the cat is out of the bag so to speak, why can't Bush go to Congress and have FISA amended? Why stick to the "dubious" argument that Congress already authorized the program via the AUMF?

[boris]

Why can't Congress simply amend or revoke FISA? Since it was their unworkable, constitutionally dubious turkey to begin with.

[boris]

Where does the notion come from that if congress creates an unworkable turkey, constutionally doubtful, the president is responsible for getting it fixed?

If it was necessary to protect the country it goes into effect immediatly. Congress committees were briefed and frankly any responsibility for fixing it up belongs with them. The president had other things to do and it was congress who created the FISA turkey in the first place.

[boris]

If the NSA program was necessary to protect the country it goes into effect immediatly.

(for the sake of clarity)

[kim]

Could be more than one cat in the bag. Judging from cats, there is.
====================================

[azredneck]

Amend FISA? You've got to be kidding! This Senate can't agree that today is Monday!

[Anonymous Liberal]

Where does the notion come from that if congress creates an unworkable turkey, constutionally doubtful, the president is responsible for getting it fixed?

I believe that notion comes from Article I and II of the constitution, Boris. Congress makes the law, the President "executes" the law. If the statute needs fixing, the executive branch needs to ask Congress to amend it. You don't just disregard the law.

Moreover, your position would make more sense (though not much more) if the administration (or anyone) had ever suggested that FISA was either an "unworkable turkey" or "constitutionally doubtful" prior to one month ago.

If the executive branch needs the law changed, is should go to Congress and make its case, in secret session if necessary. The Bush administration simply told Congress (and by "Congress" I mean a handful of members of Congress) that it was going to do X, Y, Z. It didn't ask for a change of the law. In fact, the administration's position is that they don't need to have the law changed. They can just disregard it at the president's sole discretion.

Does that really not bother you in the slightest, Boris? Are you really truly convinced that the president should be able to pick and choose which laws to follow so long as terrorism remains a threat (i.e. forever)?

[Cecil Turner]

Now that the Times has broken the story and the cat is out of the bag so to speak, why can't Bush go to Congress and have FISA amended?

Might as well, at this point. (Though I agree it's primarily Congress's responsibility, and it's unlikely to be the last round of the whole War Powers argument.) It's the contention that should have been the course of action after 9/11 I find dubious.

I believe that notion comes from Article I and II of the constitution, Boris. Congress makes the law, the President "executes" the law.

There's another part of Article II having to do with Commander in Chief responsibilities once Congress declares war. Spying on the enemy has traditionally been held to be an integral part of that duty.

If the executive branch needs the law changed, is should go to Congress and make its case, in secret session if necessary.

And then we'll have secret criminal laws on the books? Again, I find this whole line of reasoning unpersuasive.

[boris]

I believe that notion comes from Article I and II of the constitution, Boris. Congress makes the law, the President "executes" the law. If the statute needs fixing, the executive branch needs to ask Congress to amend it. You don't just disregard the law.

Poppycock.

If the NSA program was necessary to protect the country it goes into effect immediatly. Since protecting the country is constitutionally assigned to the president (Article 2), congress has the obligation to "regulate" accordingly (Article 1). When the "regulate" is in conflict with the "protect" please identify the constituional passage that specifies the remedy. If conservatives give priority to "protect" and liberals give priority to "regulate" that's probably why after 911 voters prefer conservatives.

BTW when the committees were briefed that constituted a clear indication that FISA was unworkable. Otherwise what is the point of the briefing ??? Pretending to be stupid is no substitute for reasonable argument. Thought you knew that.

Terrorism is forever ??? What a crock.

[kim]

Terrorism as violence to reason is forever.
============================================

[Anonymous Liberal]

Cecil,

Why would the laws themselves have to be secret? A few extra words here and there could totally alter FISA without giving anything sensitive away?

As for the executive's inherent powers under Article II, I have no problem believing that the president has the inherent authority to initiate this sort of spying in the absense of a Congressional statute. But it's quite another thing to argue that the president has the power to authorize this sort of surveillance in the face of a statute that specifically forbids it. When Congress has spoken on an issue, the president's power is at its "lowest ebb."

The inherent authority argument in this context is incredibly weak and there is virtually no case law that supports it. That's why the Justice Department is relying so heavily on the argument that Congress somehow did authorize this spying via the AUMF.

[boris]

the President "executes" the law

Executing and observing are not the same thing. Police have some latitude observing traffic rules for example while enforcing them. The NSA program clearly falls into just such a category relative to FISA.

[clarice]

You really are big on that drawing your chances on a "judge may I" when, in fact, this isn't a Fourth Amendment issue..Oh, well..

[maryrose]

Risen is on Hardball saying we don't know if there have been abuses, with the NSA tapping. He says 500 a day , how does he derive that number? Risen also says a workplace harassment atmosphere at CIA re; this and he has proof of this how? When asked if Cheney pushed President Bush into more NSA tapping says first briefings don in VP Cheney's office and that proves what?
Risen also states " WE SCOOPED THE WORLD WITH THIS STORY" And by golly getting that scoop is far more important than protecting the American people. {end of irony and sarcasm} Risen also says leakers are unsung heroes.

[Anonymous Liberal]

BTW when the committees were briefed that constituted a clear indication that FISA was unworkable

There's little indication that FISA was even mentioned during these briefings. Those briefed probably should have figured it out, but there's no evidence (at least that I've seen) indicating that the Bush administration went out of their way to indicate to congress that the program didn't comply with FISA or that FISA was unworkable.

As for you reading of Article II, Boris, please explain how such a system differs in any material way from a monarchy, at least in a time of war. If the president's decisions trump Congress's on all things related to protecting the country, are there any meaningful checks on presidential power?

And just for curiosity's sake, Boris, how long do you envision the war on terror lasting? What event will mark the end of the war?

[TM]

From Wonderland:

Bush is explicitly arguing that because we are at war, he has inherent authority under the Constitution to unilaterally and secretly authorize surveillance that targets Americans that he has unilaterally and secretly determined are linked to Al Qaeda. (Corollary legal theory: Bush can waive the restrictions of the torture ban, duly enacted by Congress specifically to tie Bush's hands, if Bush decides it's necessary.)

Legally, constitutionally, these arguments are hogwash. And no amount of rinky-dink "gray area" arguments can paper over that.

And a bit later:

TM:

I never said the program was definitely illegal. We just don't know enough about its details to say one way or the other.

My bad. "Hogwash" probably threw me off. Or maybe it was "rinky-dink "gray area" arguments".

Anyway, if you would care to provide the non-hogwash, non-rinky dink arguments that persuaded you that this is, in fact, unsettled, I would be delighted if you would share the code so that I can communicate successfully with other lefties I encounter.

[boris]

But it's quite another thing to argue that the president has the power to authorize this sort of surveillance in the face of a statute that specifically forbids it.

are there any meaningful checks on presidential power?

Couldn't stop a steel mill strike. Unlike the steel mill situation the president does have the power to execute surveillance regardless of statute. In this case the resources are directly under the presidents control. If the NSA program is necessary to protect then statute is trumped by AUMF and Article II. Since the executive is one of the equal branches of government the power given by constitution can not be undone by another branch. Overriding FISA does not interfere with the power to regulate the armed forces in any meaningful way.

(BTW communism still exists, but the cold war is over. Don't be a butthead.)

[Anonymous Liberal]

Executing and observing are not the same thing. Police have some latitude observing traffic rules for example while enforcing them. The NSA program clearly falls into just such a category relative to FISA.

Boris, this is a truly terrible analogy. Traffic laws are directed toward the general population, not on duty law enforcement officers. Of course the police don't always have to observe those rules, and of course strictly observing them would make it impossible for them to enforce the rules.

But that's not at all analogous to the spying issue. The FISA rules aren't directed at the general public; they're directed squarely at executive branch, specifically the NSA and other intelligence agencies. If the executive branch has the sole discretion not to follow those rules, then the law is meaningless.

[boris]

The example wasn't meant to be analogous to NSA vs. FISA. It was meant to illustrate the difference between "execute" (enforce) and "observe".

Once again, pretending to be stupid is NO substitute for reasonable agrument.

[boris]

The FISA rules aren't directed at the general public; they're directed squarely at executive branch

There is no constitutional war power that gives congress the authority to "regulate" the president.

[Anonymous Liberal]

Okay, Boris, then maybe you can explain how the distinction between "execute" and "observe" is relevant to this debate. Your first attempt didn't really do the trick.