More On The NSA Warrantless Eavesdropping Program

Adam Nagourney of the Times ponders the political landscape of the eavesdropping program:

But as the White House and Democrats are well aware, the issue can draw very different reactions depending on how it is presented. These next few days could prove critical, as both Mr. Bush and Congressional Democrats move aggressively to define what is at stake.

Americans may be willing to support extraordinary measures - perhaps extralegal ones - if they are posed in the starkest terms of protecting the nation from another calamitous attack. They are less likely to be supportive, members of both parties say, if the question is presented as a president breaking the law to spy on the nation's own citizens.

If the Democrats present their arguments calmly and sensibly, they might well be able to convince a large swath of the public that Bush overstepped his bounds in balancing national security with civil liberties.

But if my "calm and sensible" caveat is correct, Bush has nothing to worry about - Dems will let themselves be stampeded into calling for his impeachment before the first hearing breaks for lunch.

The WaPo editors are unimpressed by the legal arguments offered by the Administration.  However, their table-pounding finish lacks something:

Especially without knowing the parameters of the surveillance, we hesitate to second-guess the president's argument that FISA's limits are unduly constraining. The surveillance may be critical for national security, and a law written in a different technological age may well need to be refurbished. But the proper way to handle that -- which the administration rejected -- would have been to seek changes in the law, not to do a stealthy end run around the legislative process.

The "stealthy end run" included regular briefings to the Congressional leadership over the last four years.  Would it be a violation of Congressional gift rules to offer the relevant members a few of these?

Comments

[Gary Maxwell]

Here is a shocker Adam Noagourney, no fan of the Bush admin. If you take the President at his word (and the word of his V/P, Press Secretary, Attorney General et al adnaseum) it draws a different response that if you just make stuff up hysterically about domestic spying.

Johnny Carson at this point would have looked at the audience, gave a double take and then deadpanned, " I dont write 'em I just read 'em."

[Wonderland]

Tom makes his "But the Gang of Eight Was Briefed!" argument for the six thousandth time.

But Tom still doesn't know anything, anything at all, about what what the heck was said during any of those secret briefings. On the one hand, we have the Administration's claims that "Congress was briefed." On the other, we have at least one bit of documentary evidence, which, while CYA in nature, was a contemporaneous statement of the most intelligence-issue-savvy (at least in theory) Democrat, Rockefeller, saying that he could not properly assess either the technical or legal aspects of the program under the circumstances. It's certainly not dispositive evidence, but it strongly indicates that the White House was not volunteering info or inviting pointed questions from Congresspersons.

And given that the only evidence we have on the other side is, umm, I guess, the Adminstration's unsupported claim that they briefed everybody about everything, this just doesn't seem like a case where you can plausibly say they weren't trying to sidestep Congress. And that's why conservative people like Barr, Specter, Brownback, and recently McCain, along with the chorus of Democrats, have reacted with such skepticism to the Administration's claim to this authority, and that's why hearings are going to happen. That they do not feel like Congress gave the Administration tacit approval for this could not be more obvious, but it's amusing, nonetheless, to see you stick to your guns on this one.

[Jim Rockford]

And Wonderland, what is the fallout of another attack on the US that's barbaric on an off-the-scale way?

GWB now has a guaranteed out. "I was doing everything I could to protect Americans until the NYT and Dems screwed everything up."

The bottom line is that Bush's NSA actions are akin to the very birth of DNA testing or fingerprints in the 1890's. It's new technology (and systems of technology put together in new ways) that like Red Light Cameras have the capability of abuse (like catching a driver with a woman not his wife) but also uses. Or if you prefer, DNA testing establishing facts but also genetic profiles for disease risk factors.

Congress is scared of this one; they abjure the methods and an attack is successful, the public will blame THEM for not doing all they could.

No matter how you slice it, you trade lives for civil liberties absolutes or the other way round. Either way you have to trade, and the public on balance is solidly for lives in favor of absolutes.

[PaulV]

Jim Rockford-your faith in the good sense of the American people makes the case

[Cecil Turner]

Tom makes his "But the Gang of Eight Was Briefed!" argument for the six thousandth time.

The President doesn't need Congressional approval to spy on the enemy in wartime. The NSA program is arguably in a legal gray area, but if Congress allows it . . . And so far Congress has had ample opportunity to do something, and has demurred. At this point in the game, they can get off their butts, or forfeit. The latest call by Dick Durbin for the President to propose legislation (after Dems successfully filibustered the Patriot Act) is priceless.

[Wonderland]

Jim, you're presenting a false choice. I'm for civil liberties AND saving lives. But I think that's irrelevant, because this issue is about neither.

It's about Presidential assertions of "inherent authority" that, for all intents and purposes, places the President squarely above the law. I mean, the DOJ actually argues that a law passed by Congress, within its enumerated powers, meant to bind the Executive by limiting the methods for using electronic surveillance of Americans in America, is, get this, unconstitutional if it prevents Bush from doing what he says he needs to do to stop terrorists. It is not just a bold argument. It is barely colorable. If any court signs off on this line of legal argument, I'll be waiting outside the courtroom to collect their gavels and robes as they exit.

But, as for civil liberties vs. saving lives, the whole point of FISA, which governs surveillance for the purpose of collecting foreign intelligence, is to protect the former while allowing the President to do the latter. It requires a low burden of proof to get a warrant (even retroactively!) and was designed for speed. And if it wasn't good enough, as the WaPo points out, the President ought to have gotten it amended. The fact that no one has yet answered, or even hinted at, why FISA was inadequate is telling, I'd say.

Secret Presidential directives do not repeal duly enacted Congressional laws. If Bush thinks this program is necessary to protect America, I doubt Congress will prevent him from using it. They'll just want to ensure that it can't be abused, that it is effective, that they get to give the old thumbs up. That's nothing to be afraid of.

[Bob]

Just a thought here... what was the lefts response to the Branch Dravidian's at WACO ? The FBI got caught lying about what they did, and Clinton/Reno had the US military go in and kill 80 Americans. Did we ever learn how the Clinton Administration knew who and why these folks needed to be killed. I'm sure these Americans had their privacy trampled in this botched investigation !

We need to know what laws were broken... personally I'm glad, but it just goes to show the double standard.

[Rick Ballard]

"And if it wasn't good enough, as the WaPo points out, the President ought to have gotten it amended."

There are 535 legislators whose theoretical purpose for existence as elected officials is to propose and pursue passage of legislation. None of them are doing so even now wrt FISA and the NSA. If any importance whatsoever attached to the issue one might presume that one of these fine and competent individuals would care enough to at least make a proposal.

That not one of them has is proof enough that the NYT and WaPo are far into "a tale told by idiots, full of sound and fury, signifying nothing".

I wonder if OBL will raise this issue in his next tape? Maybe something on FISA with an aside concerning Abramoff?

[Gary Maxwell]

Here is a strange and no doubt impossible to perform suggestion, why doesn't the Congress ( Ie both the House and the Senate ) and its occupants ( ie which ever party wants the credit should go first) do what they are suggesting and inititate debate and pass legislation that eliminates any concerns they have about the program? And why dont the critics of the current program push their Senators and Congressmen to do so? And shut the hell up until they do.

[Gary Maxwell]

Aw Rick great minds do indeed think alike. But you are quicker on the draw!

[maryrose]

The legislative branch makes the laws and the executive branch either signs or vetoes them Dick Durbin is beneath contempt in this instance and needs to be replaced in the leadership along with the Nancy problem. Dems will never win elections if they keep playing duck and CYA with the terrorism issue.

[Wonderland]

Rick and Gary:

Come on, guys. Only 8 or so of those 535 Cognresspersons know anything more than you or I do about the program. How in the world could they craft worthwhile legislation if they don't know how the program works, or, for that matter, what was wrong with FISA in the first place?

Plus, given teh circumstances, you've placed the burden on the wrong party. Congress had a detailed, well-regulated statutory scheme in place. Al 535 Congresspersons -- minus, maybe, the 8 or so who were briefed, depending on what they were told -- assumed that it was working just fine, and there had been no serious public question as to the statute's constitutionality.

If Bush thought his program was necessary to the war on terror, and if there was no way to comply with FISA, it's his responsibility to go to Congress, in secret session if need be, and get it changed. It's not Congress' responsibility to read minds. And now that the program existence is known, but virtually no details are, it's Congress' job to get those details before engaging in wholesale intelligence law reform. As you all have argued, this is life and death stuff. Not exactly the time to be proposing complicated legislation when you don't know all -- any? -- information relevant to that legislation.

[Cecil Turner]

Plus, given teh circumstances, you've placed the burden on the wrong party. Congress had a detailed, well-regulated statutory scheme in place.

Oh, fine. Let's not change it then. Let the Dems run on the "impeach Bush" plank, and we'll see how it works out.

[boris]

How in the world could they craft worthwhile legislation

Hey congress, FISA no worky, repeal it.

[Hit The Bid!]

Many people seem to accept as creedence the notion that the NSA activity is limited and only monitors communication between Al Queda or Al Queda affiliated folks and people here in the US. I'm not saying that this is not the case, but does anyone with any degree of certainty, know if that is true?

[Hit The Bid!]

Boris, your assumption that FISA does not work rests on the assumption that the Administration thinks it is an ineffective way to get intelligence, and had to get it some other way. I think thats incorrect.

It seems to me that the Administration is making a different argument. They seem to be saying that we don't need FISA...that in fact they derive their authority from elsewhere to conduct this type of intelligence gathering...Which is it then?

[Tom Bowler]

They are less likely to be supportive, members of both parties say, if the question is presented as a president breaking the law to spy on the nation's own citizens.

Mr. Nagourney explains the rationale that's driving the Times presentation of the issues.

[boris]

your assumption that FISA does not work

Not my assumption. The question addressed was based on the assumption that congress could not make proper modifications to FISA without detailed knowledge of problems.

The point you missed was ... don't need no steenking detailed knowledge to repeal it.

[Hit The Bid!]

Didn't miss the argument Boris, but thanks for your concern...very much appreciated.

My larger point is that since congress felt that this was an area that needed to legislated, FISA and what it covers, it therefore cannot be an area that "belongs" to the executive branch...otherwise, Bush would have the supreme court rule that FISA is unconstitutional.

[Hit The Bid!]

The post's analysis is in the right ballpark. Whether or not you think this is legal or not depends on your view of "all necessary and appropriate force" as from Hamdi...sorry to say it to many of you who are just generally offended that the terrorist loving Democrats are causing problems, but that IS THE ISSUE. Period.

[larwyn]

Jack A## Cafferty of the CNN "Day
Room" and Wooooof! just reported that a CNN poll has:

58% "OF THE AMERICAN PEOPLE"
WANTING A SPECIAL INVESTIGATION
into the NSA "SPYING"

Wouldn't you love to buy the phone records from this survey - lots of calls to Cambridge,Mass;Hollywood and SanFran,CA. and
probably Detroit Michigan.
IOW, all or any of the cities with inhabitants most worried that GW
and Dick Cheney are listening to their phone calls.
Now that list would be worth $110.00.

[Gary Maxwell]

Larwyn

You thinking the random number generator just happened to stutter ( repeatedly ) over Dearborn Michigan and Portland Oregon?

[boris]

My larger point is that since congress felt that this was an area that needed to legislated, FISA and what it covers, it therefore cannot be an area that "belongs" to the executive branch...otherwise, Bush would have the supreme court rule that FISA is unconstitutional.

That point is SO LARGE it boggles the mind. No clue what that means.

[Hit The Bid]

Thank you...I do believe myself to be a gifted thinker...maybe you could ask one of your friends what it means then get back to me?

thanks.

[Hit The Bid]

Larwyn,

unless its an internet poll, please remove the tin foil from your head and come back down to reality...oh wait...unless you were being fecetious. Were you?

[Rick Ballard]

boris,

I have a friend who is a special ed teacher - she's very good at interpreting for the differently abled. Perhaps she can figure it out. Just because its jibberish doesn't mean that it has no meaning to those who write it.

[larwyn]

More fun!

CNN just reported that the Brits are in trouble with the Russians for using a rock that was fitted with hi-tech listening devices,
easily downloaded by a passing
Brit.

Is this how we just got those 11
tree hugger/arsonists/vandal/terrorists?

Wonder how many of those spare key hiders the MI6, DIA,CIA & FBI ordered?

Are we going to need another special prosecutor called for by the enviromentalists?

Amazing that one can offer such seemingly insane senarios - only to see NYT headlines/editorials suggesting same.

Lots of Lefties and others will be doing yardwork!

[larwyn]

Hit The Bid
"unless you were being fecetious. Were you?"

No dear, I wasn't. I was just using the past makeup of the samples that the LSM loves to "poll".

Babe Bucannan called Woooof! on the
form of the questions, and hopefully someone can get the actual internals.

"American people" doesn't mean voters - it may not even mean citizens.

Dick Armey lamented that conservatives like to answer questions with facts and figures -
the Left, well, "not so much".

Hope you read this:
January 22, 2006
Lying Isn't So Bad If It Makes You Feel Good
By John Leo

Click here: RealClearPolitics - Commentary - Lying Isn't So Bad If It Makes You Feel Good by John Leo
http://www.realclearpolitics.com/Commentary/com-1_22_06_JL.html

We will see who doesn't have to pay for cable tv reception when we get the poll questions and internals.

[maryrose]

Larwyn,
I read that post this morning and enjoyed it.

[David Walser]

This is getting redundant in the extreme. (Which, if you are going to have redundancy, is the best way of doing it.) Tom says Congress was briefed. Wonderland says that briefing eight members of Congress is not the same as briefing Congress. (Wonderland's complaint, while accurate, is also misleading. Congress works in committees. The chair and ranking member of both the Senate and House Intelligence committees were briefed. For a time, the chair of the Senate's committee was a Democrat. Any of these members could have introduced legislation and could have called for a closed-door meeting in which to brief the entire committee. None of them thought the issue worth the effort.)

What this Congress was/was not briefed argument misses is the question of what obligation the President has when he has the good faith belief his actions are legal. This is not a game of Mother-May-I where the Executive gets sent to his room without supper if he forgets to say the magic words before acting. If he truly believes the NSA program is legal, he has no moral obligation -- and certainly no legal obligation -- to seek Congress' permission to act. While Wonderland believes the President's legal position is "barely colorable", I disagree (and I'm partially color blind). Last time I checked, the President's position is supported by 4 appellate court decisions and the FISA Court of Review's explicit statement (in dicta) that FISA cannot encroach on the President's authority to conduct warrantless wiretaps for foreign intelligence gathering purposes. Wonderland's legal reasoning and parsing of the statute may be reasonable, but in most legal circles, even well reasoned statutory arguments are not accorded as much weight as a court decision that's directly on point -- even if the court's discussion is dicta.

When it was questionable whether the President had a reasonable basis for believing his actions were legal, I could understand the controversy. However, after the DOJ released it's 42 page memo, I think that question should have been put to bed. There still remains the not inconsequential question of whether or not the NSA program is, in fact, legal. But the accusation against the President was not just that NSA broke the law, but that he did not care that NSA was breaking the law. Courts rule the federal government has exceeded it's authority or has not lived up to its obligations in one way or another on a somewhat regular basis. If BLM screwed some Western rancher out of his grazing rights, that would hardly be newsworthy. What would be worthy of controversy is the President ordering the BLM to deny grazing rights KNOWING that action was illegal. That would undermine the rule of law. I think the same goes here. Until someone can show some legal duty for the President to seek permission to do something he thought he had the legal authority to do, I'm calling this a non-issue.

[Mike G in Corvallis]

Tom Maguire wrote:

Would it be a violation of Congressional gift rules to offer the relevant members a few of these?

Hah. If the Congresscritters really did have concerns about the legality of the program, but didn't do anything about those concerns, then what they need is a few of these.

[Hit The Bid]

Larwyn,

Why would anyone read anything off realclear politics? Much less any "commentary" I have a Masters in Public Policy, so if there is anything you want to know about Research and Polling, just ask and I'd be happy to tell you.

RCP has the credibility of NewsMax or CNS...come on people.

[TM]

otherwise, Bush would have the supreme court rule that FISA is unconstitutional.

Well, onwe oif the many interesting issues raised by this story is, just who is the aggrieved party with a right to sue, or is the proper re,edy to be found elsewhere?

For example - if the Admin brought a specific case based on evidence from the NSA program, a defense attorney might argue (and win) that they evidence was tainted.

But a lawsuit to stop the program? I know the ACLU and others are trying, but the reaction seemed to be, how do they establish that they have standing and were harmed?

My impression (which I will repeat for the 6,001st time) is that the courts would be very inclined to view the broad question of suspending the program as a legislative-executive face-off, and stay out.

In fact, any reasonable judge would ask, gee, why can't Congress compel suspension of the program by, for example, halting funding? Why are they in my courtroom?

So, the idea of Bush taking this to the Supreme Court pre-emptively does not make much sense. In my world (which, in this rare instance, seems to overlap with reality) the Executive would say, hmm, gray area, our lawyers say we can do it, full speed ahead.

Congress had opportunities to pass the buck, and was happy to do so.

So any investigation now ought to focus on why or whether FISA was appropriate, and what to do about it. Which is fine, and Congress could have done this four years ago - oops, soory, Bush was popular, so they couldn't question him, especially the Democrats - I keep forgetting that.

(The first Patriot Act passed by what, 99-0? Profiles in courage.)

[clarice]

A Masters in Public Policy--and they say college is being dumbed down for illiterates..QED.

Larwyn--Love that new word you coined "fecetious". May I borrow it for describing really crappy posts?

[TM]

soory, Bush was popular, so they couldn't question him, especially the Democrats

Fortunately, the Dems have enough courage to protect us from unpopular Presidents...

[larwyn]

Clarice:
Kudos must be sent to the holder
of Masters in Public Policy.

It had to be copied - just in case anyone missed.

"Love that new word you coined "fecetious". May I borrow it for describing really crappy posts?"

Sounds great as description.

And they make fun of our "misunderestimated" Ha!

[Wonderland]

David:

You're missing the basis of my complaints about all this. I find it very interesting that the simple publication of 42 pages of legal argument makes you think this issue is dead. Every day in court, parties who will eventually lose on the merits of their case submit finely-tuned, well-crafted, and strongly-worded legal memos, with lots of citation to authorities. The simple fact of making a colorable legal argument does not mean that they're correct. If a convicted criminal defendant submits a thorough and strong appellate brief about how, under the statute, the state failed to prove he had the requisite mens rea, and the court rules against him, guess what: he goes to jail.

Analogously, the Bush administration has put forth its legal argument. I'd venture to say that most legal experts would agree that (a) its statutory construction arguments are not viable; (b) its attempt to subvert Youngstown while at the same time acknowledging that Congress explicitly put FISA into category 3 territory is borderline embarassing; (c) the Sealed Case dicta does not mention "warrantless" surveillance of American citizens in the US, and to the extent was meant to apply to such, it is an incorrect statement of the law; and (d) there is no way that any court would find that FISA unconstitutionally encroaches on the President's exclusive powers. (Argument (d), I might add, is clearly a CYA backup argument if and when the statutory argument fails. They truly do not want to hang their hat on it because it is, sorry to say, very weak.) All that said, the publication of the DOJ's 42-pager, contrary to your opinion, actually solidifies the legal case against the President's position. When it goes in front of Congress, or God forbid, the Courts, it will lose.

Naturally one of you will argue that legal niceties aside, the President, even with "barely colorable" legal authority, has to do what he must in the war on terror. Perhaps that was your point, David. But that type of reasoning is far more dangerous in the long term than any minor and temporary setback in the secret intelligence operations of the war on terror. I personally argue so strenuously against the legal reasoning supporting the President's position because it seriously undermines -- in fact, disclaims -- the ability of Congress and the Judiciary to check Executive power. If it is accepted, the President will have carte blanche to ignore the law anytime he asserts that "national security" requires it and his "inherent Article II powers" allow it. That is not how our Constitutional system functions, and I think it's interesting that so many people are so politically invested in Bush that they are unwilling to examine the logical end of the legal conclusions they vigorously defend.

[Wonderland]

TM:

Agreed that this will play out in Congress rather than the Courts. There is no way a court would shut down the NSA operation if the government went in there and said it was necessary to national security. As I've commented before on this site, the legal arguments embraced by the Administration amount to a big middle finger from Bush to Congress. We'll see if Congress takes it sitting down. The fact that it might, in my opinion, for reasons of partisanship or wussiness, is a very good reason to make a big deal out of this and explain what the legal and historical ramifications of a capitulation by Congress might be.

[boris]

The executive and congress as elected branches can protect and assert their authority through the political process. In this case a political confrontation on the NSA program favors the president, especially with OBL issuing threats. Expect the executive to win this one.

carte blanche to ignore the law anytime he asserts that "national security" requires it and his "inherent Article II powers" allow it

The NSA is part of the executive branch. The power of the executive is rather sweeping within it's own branch, just as the power of the SCOTUS is rather sweeping within the judicial branch. So what?

I claim that in my own house I can butter my toast any way I like and drink orange juice any time I want. That sweeping authority does not empower me to tell you how to butter your toast or when you can drink your orange juice. So drop the stupid "absolute unchecked power" BS.

[Sue]

Hit the Bid,

I love it when someone throws out their credentials for everyone to be suitably awed. You are looking for a new line of work...right?

[Dwilkers]

David Walser - well argued, and I agree for whatever that is worth.

[Jimbo]

I happened to hear some of this speech on C-Span on my way home from work an hour ago or so, and I'll be listening to the rest later tonight.

Since it seems to be on point to this thread, I thought I'd post a link.

Gen. Michael V. Hayden on NSA & Intelligence Community

http://switchboard.real.com/player/email.html?PV=6.0.12&&title=Gen.%20Michael%20V.%20Hayden%20on%20NSA%20%26%20Intelligence%20Community&link=rtsp%3A%2F%2Fvideo.c%2Dspan.org%2Fproject%2Fter%2Fter012306%5Fnsa.rm

[TM]

The executive and congress as elected branches can protect and assert their authority through the political process. In this case a political confrontation on the NSA program favors the president, especially with OBL issuing threats.

I think Wonderland and I are frighteningly close on the substance (we seem to disagree on whether Bush included a left hand on right bicep to go with the middle finger), but this political outlook looks right to me.

Put another way, wants to be the civil liberties hero responsible for having shut this down, if we get then get attacked?

I suspect that sort of argument has kept this program going (with or without results), and the logic is inexorable, and troubling - once we have identified a potentially useful tool, the person who fails to use it, or stops its use, will pay a ghastly political price.

Which in one sense is fine - it means that politically, we ought to be able to amend the law.

Another prediction of this CYA theory is that eventually the Patriot Act will pass, whether it makes sense or not (do we all remember Harry Reid screaming that he had not killed the Patriot Act the day after he did?)

As a concerned citizen, this is not good - it suggets that we have a very limited ability to assess risk and return, or make trade-offs that involve national security.

A partial solution would be a credible new Pres with bipartisan appeal and unquestionable military credentials, i.e., McCain.

I have lots of other problems with McCain, but he could nix this NSA program in a way that Hillary, for example, never could (folks would just scream that she was being a hyper-lawyer, just like her hubby over-lawyered the war on terror in the 90's.)

Whatever. You go to war with the Congress you have...

[Gary Maxwell]

Masters of Public Policy = Masters of Public administration in most grad schools. dont know about the ones where you send in boxtops and a quarter though...

MPA NOT EQUAL to MBA

Ususally means someone who washed out of the MBA program and had to go get a government job.

[Larry]

Hit: "...Bush would have the supreme court rule that FISA is unconstitutional."

There's a good example of understanding separation of powers if I ever saw one.

[Dwilkers]

What is missing TM, is abuse.

As long as this was done in defense of the country it isn't even a civil rights issue much less a legal problem. If tomorrow we learn that the White House has been monitoring reporters (or Dems, or whomever) and using the information to get ahead of the spin cycle or something everything changes.

But that's not going to happen, because Bush isn't the person the left and the Dems think he is.

[Wonderland]

boris:

I know where you stand on this, but i have a question for you, out of curiosity:

Do you have these phrases saved somewhere, like on post-it notes on your desktop, or a Word doc, so you can post them repeatedly on various sites? I mean, I've seen you post those exact same things at least two other times. "Expect the Executive to win this one." "Butter and orange juice." So what gives?

[boris]

I've seen you post those exact same things

I use links like this.

Sometimes I quote, sometimes I link, sometimes both. The longer the same arguments are presented, the more links there are to draw upon.

[larwyn]

If you are in EST zone,a bit of escape is at hand - Jack Bauer on in a few minutes.

[maryrose]

Larwyn:
Thanks for the reminder, 24 it is.