The NSA Deal - Views Differ

Messrs. Shane and Kirkpatrick of the NY Times reports on the Senate deal on NSA warrantless surveillance, but it is the reaction of the editors at the Times and WaPo that is most interesting.  Let's hear from the adults first:

IN THE PAST week both congressional intelligence committees have taken modest steps toward oversight of the National Security Agency's mysterious program of warrantless wiretapping.

...In the Senate's case, the committee action coincided with a proposal by several moderate Republicans to authorize aspects of the NSA program and impose modest restrictions...  The bill has positive and negative elements. It contains important restrictions on the use and retention of information, and it would require the administration to get a warrant as soon as the standards for one can be met. But it would also allow surveillance to continue without a warrant if the administration certifies its necessity to a congressional subcommittee. Whatever its merits, the legislation seems premature. Any bill should flow out of the examination of the program the committees are only now undertaking, not from guesswork about what is going on and what rules should apply...

Two key inquiries ought to guide any new legislation: how FISA is working and what precisely the administration is doing outside of its strictures. The administration has said that the surveillance law is too cumbersome for certain essential national security surveillance. If this is true, the law needs to be updated. But Congress cannot reasonably authorize or limit the NSA's program without knowing what sort of surveillance it encompasses and how it works...

The goal should be to modernize the compromise between national security and liberty that FISA represented in the 1970s: to legitimize essential surveillance by law, require judicial review when the targets are U.S. citizens or residents, limit the use of this material to counterintelligence purposes, and ensure that irrelevant material is not retained.

Crafting and maintaining compromise on this issue has always been bipartisan. It would be tragic and dangerous if it became a political football now -- either as a campaign issue for President Bush or a club with which Democrats can pound him. Consensus should be possible if the administration is willing to engage seriously with a Congress interested in rigorous oversight.

Now let's go to the Times:

The Death of the Intelligence Panel

The wrenching debate in the 1970's over the abuse of presidential power produced two groundbreaking reforms aimed at preventing a president from using war or broader claims of national security to trample Americans' rights.

One was the Foreign Intelligence Surveillance Act, which struck the proper balance between national security and bedrock civil liberties, and the other was the Senate Select Committee on Intelligence, a symbol of bipartisan leadership. They endured for a quarter of a century — until George W. Bush and Dick Cheney left FISA in tatters and the Senate Select Committee on its deathbed in just five years.

The Senate panel has become so paralyzingly partisan that it could not even manage to do its basic job this week and look into President Bush's warrantless spying on Americans' international e-mail and phone calls.Senator Pat Roberts, the chairman, said Tuesday that there would be no investigation. Instead, the committee's Republicans voted to create a subcommittee that is supposed to get reports from the White House on any future warrantless surveillance.

It's breathtakingly cynical. Faced with a president who is almost certainly breaking the law, the Senate sets up a panel to watch him do it and calls that control. This new Senate plan is being presented as a way to increase the supervision of intelligence gathering while giving the spies needed flexibility. But it does no such thing.

The Republicans' idea of supervision involves saying the White House should get a warrant for spying whenever possible. Currently a warrant is needed, period. And that's the right law. The White House has not offered a scrap of evidence that it interferes with antiterrorist operations. Mr. Bush simply decided the law did not apply to him.

It was no surprise that Mr. Roberts led this retreat. He's been blocking an investigation into the domestic spying operation for weeks, just as he has been stonewalling a promised investigation into how the White House hyped the intelligence on Iraq. But it was disappointing to see a principled Republican like Senator Olympia Snowe go along. The Democrats are not blameless, either. Too often, their positions seem like campaign tactics, and Senator John Rockefeller IV fumbled by not consulting Ms. Snowe, who is up for re-election and under intense White House pressure.

But the Republicans deserve the lion's share of the blame...

And their Big Finish:

There are moments when leaders simply have to take a stand. It seems to us that one of them is when Americans are in danger of the kind of unchecked surveillance that they thought had died with J. Edgar Hoover, Watergate and spying on Vietnam protesters and civil rights leaders.

There is nothing at all in the Times about what we ought to do next - is this a valuable program, is FISA unworkable, is this level of Congressional oversight appropriate - who cares?  They want their big story to lead to an investigation and a black eye for the Administration, and that is all they want.

Maybe next time.

Comments

[Bob in Pacifica]

Is Alberto gonna say whether or not Bush is doing black bag jobs? Are we gonna get an explanation as to why National Guard intel units are spying on citizens?

Hell, the Constitution isn't workable, not when you have ECHELON in your toybox.

By the way, it is not the NYTimes' job to rewrite spying laws. It is the job, the legal obligation of the Administration to obey those laws. It is the job of the Intelligence Committee to make sure that the Administration obeys the laws.

[topsecretk9]

Hi Bob

Now go smoke a fatty and it will all be O K.

[topsecretk9]

By the way, it is not the NYTimes' job to rewrite spying laws.

Jesus Christ, I hope not. Shit.

[topsecretk9]

to modernize the compromise between national security and liberty that FISA represented in the 1970s:

Radical Isalm.

[Syl]

FISA was no compromise. It wrested control from the Executive and gave it to the other branches and presumed to micromanage intelligence gathering.

The FISA procedures are time-consuming and paperwork-heavy for a reason--to discourage 'spying'. Only the most serious cases are bothered with for that reason and that's why the percentage of warrants granted is so high.

To me, FISA is borderline unConstitutional and I'd love for it to be tested.

[kim]

Jaundice, biliousness, that ol' Gray Lady's got the dwindles. She needs a family intervention to get her into a nursing home, or at the very least, a new doctor.
=========================================

[MayBee]

Very skillful of the NYTs to discuss the partisanship of the Intelligence committee and not mention Rockefeller's little memo.

[Dwilkers]

Welp, I'll say it again, absent some abuse nobody's civil liberties are being violated. There is no civil right to communicate with AQ during this war.

Now, if ChimpyMcHalliBusHitler were spying on the DNC (or say, assembling FBI files on their political opponents, or siccing the IRS on them) then we'd have a different situation. Absent that there isn't an issue.

So...since we apparently have a 20 years war and we're going to need to make sure - to the best of our ability - that the enemy cannot plan and execute terrorist attacks against elementary schools or some such in the US, what are we going to do to ensure that an unethical administration (IE, one that would assemble FBI files on their opponents, or order the IRS to harass them) cannot get away with that sort of abuse?

Seems like some sort of extremely selective multi-partisan supervision would be best. Oh wait...that's what they're proposing...come to think of it that's what they were doing in the first place.

OK...never mind then.

[Extraneus]

MayBee, I was thinking the same exact thing. Good metaphor, TM. Adults vs. kids, one of whom is in dire need of a serious spanking.

[Specter]

Ummmm....Bob? Who started ECHELON? Just curious.

I am curious though. There have been lots of claims that "innocent" Americans have been "spied" on. Has any one of them come forward? How did they know they were being spied on? Who told them? If there is no "victim" is there a crime?

[Dwilkers]

Of course, reasonable people may disagree.

So the opinion of the out of power political party should be considered when it comes to a conflict between a president's actions and a given statute like FISA (even if there is a dispute as to whether the behavior is actually conflicting with the statute).

Especially at a time when the media seems at times to be a bit (ahem) on one side of the partisan divide.

How can an interested person really judge the assertions of one side or the other on an issue like this in such a hyper-partisan political climate? Where would we go to get a sober opinion from a Democrat on what a president should do when he thinks an enacted statute conflicts with his constitutional duties?

Well...how about the Clinton DoJ?

PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES

[maryrose]

Dwilkers: You are totally correct in your analysis.
Extraneus:
A temper tantrum deserves a time-out. Don't you know spanking is politically incorrect?

[Gary Maxwell]

or say, assembling FBI files on their political opponents, or siccing the IRS on them)

Must have been a book I read or sumtin' cuz I vaguely remember this as it it really happened. But if it had happened the NYT would have been on the ramparts screaming about it and I have no recollection of THAT happening.

[ajacksonian]

So Congress has held hearings as is their purview. And they have put forth law and legislation enacted within the bounds of the territories under control of the US as is right and proper within their scope of powers within the Constitution. I further go through that territorial concept here.

Each and every individual who works for the Federal government swears an oath to uphold the Constitution. And, while serving, any wrongdoing or other serious problems seen that violate the proper laws enacted within that area that is the purview of the Congress *must* be reported, initially via inner channels of the bureaucracy. If those channels appear to be blocked or subborned then these individuals *must* go to the Inspector General that has independent oversight and investigating powers. Then and only then, if the individual believes that the IG, itself and staff have been subborned, the decision, if in the belief of Executive misdeed is to report to Congress via Whistleblower programs.

Now, the current indication is that Congress is in a tither about *something* but has problems exactly defining it. For if they say that this program violates all the laws and statutes they have set forth, then each and every individual working for that program, in knowledge of that violation has violated their oath. If the Congress has *proof* that the Inspector General has been made aware of such or that it is so out of the loop and out of touch with the agency or organization it has oversight upon, then *that* office needs to be called upon the carpet to explain its reasoning.

That is the absolute and positive *duty* of Congress in its oversight role, for all laws and statutes they have enacted that are enforceable within the Sovereign territory under the control of the US and via any Treaty language that has been enacted with Foreign Powers.

Congress has oversight and power to enact legislation on the bounds of Federal records on US Citizens that are kept within those boundaries. The Executive may only claim privelege for those records that are necessary for National Security and even *those* have limitations upon them.

The military is given the responsibility over the entire set of laws overseeing military rules of conduct, known as UCMJ. All members of the military, including the CinC save in those areas where the Constitutional powers granted the Executive would be infringed, are accountable to this military justice system as codified by Congress.

To the Citizenry: you have handed over such things so that these folks may GOVERN. You do have a right to privacy, but they are only enforceable within the bounds of the Territories under the Sovereing control of the US. That is the compact we agree to so as to regularize our lives and not overburden us in those areas. You have a right to due process for all things within that Sovereign Territory and via all Treaties enacted to regularize relations with Foreign Nations. In those areas that are under no control of any Sovereign, or indeed that would infringe upon the rights of a Foreign Nation outside of Treaty obligations, you may find your rights are not respected. While they are vested within YOU, they are only RESPECTED and ENFORCED within the country you live in.

So, as the CinC, Head of State and Head of Government powers are all vested within the Executive, along with an Oath to defend and protect the Constitution and the lands under its purview, the Executive in these roles must have power to enforce and enact them. As the CinC and Head of State powers are outside of the bounds of the United States and are, perforce, outside of the legislative bounds of Congress save for Treaty regularization, the Congress only gets say on those things that are gathered outside the boundaries of the US that are brought *into* those bounds. Once an individual, information or, indeed, anything leaves those physical bounds and does not fall under regularized Treaty obligations, the Congress may give non-enforceable directives, but has no expectation that they will be followed,nor, indeed any way to enforce them save its budgetary powers.

Now, Congress does get one additional power that intersects within this, and that is the Warmaking powers. One of which is to declare war, though it may give other names to it, any authorization that fits the description of a Declaration of War *is* a Declaration of War. All of which is well and good.

The Executive, via its Head of Government role, has had heads of Departments with oversight of Defense, Justice and State give testimony that although they are doing all within their capabilities, that the Executive does not hold the complete capability to effectively prosecute a war against a non-nation state actor or actors that respect no national boundaries and fly no national flag and act, in point of fact, as barbarians. So it is encumbent upon Congress to use ITS warmaking powers of which there is one left via its Treaty regularization for commerce *and* its Letters of Marque and Reprisals power.

When the Executive comes to the Legislative and tells the Legislative that it cannot do everything when fighting an external struggle, the Legislative MUST use its powers and JOIN THE STRUGGLE. They have sworn an Oath to use the powers invested to them by the People so as to protect this nation. The Executive cannot order the Legislative. It can inform the Legislative that a vital piece is missing that the Executive does not have. The Legislative has not reviewed its powers and properly decided to enact necessary legislative language to cut off the economic air supply of our enemies and give fair warning to those Foreign Nations that commerce with the United States needs be regularized with the help of the Department of Homeland Security. And that the US will consider only vessels flying the flag of those Nations that agree to do so as having direct oversight on those vessels. Those of Foreign Flag that do not agree to this, that wish to enter into territorial waters of the United States shall be put on notice as to inspection by the Coast Guard, Navy or Any other individual or group given Warrant to do so under Congress. Congress may further stipulate that when any of those enacting groups are given cause to believe that trade with those defined as enemies of the United States is occuring, that such vessels will be stopped and inspected and, if such contraband over an amount set by Congress is found, then that vessel will be deemed as trafficking with the enemy and be seized. When brought in such vessels will be inspected and if such contraband is deemed to, indeed, been found, then Congress will use its powers to do as it will and pay off bounties for such. For mistakes in such areas, Congress will pay a minor indemnity, but let such organizations know that operate such vessels that they are under watch for the shipment of contraband and that lack of conclusive evidence in one case does not mean that the entire organization or nation is not still under watch until they join in regularized trade systems with the US.

Why Congress thinks it has oversight upon the Executive outside the bounds of the US and the enforceable areas via Treaty, I do not know.

But the entire abdication of a vital piece in the puzzle of asymmetrical warfare by the very individuals sworn to uphold the Constitution and protect the People is an act of either stupidity or cowardice. We The People have given them this power which may not be taken away save via the Amendment process which has not been done. And while Privateers have not been a regular part of warmaking for some centuries, this is an IRREGULAR TYPE OF WAR.

If Congress believes that the NSA has been subborned and is out of control, including the IG of that Agency, then they should have the entire lot subpeonaed and defund the Agency. So as to stop such actions and show they are serious about them.

That would still *not* absolve them of their piece in this.

Now I am extremely intemperate and will take time off to cool down today. I am completely tired by this, and those that complain, like the NYT that we act as an Empire and deride it in warfare, but do NOT act as one in protecting their rights on all parts of the globe.

USA *not* SPQR (apologies to the poster of that name!).

Good day to all, I am well and truly upset by this.

[Gary Maxwell]

OT but too too funny for everyone not to get the chuckle. I dont read KOS but apparently someone does, because I found this gem at Polipundit this AM. Background is KOS explaining to the minions and flacks why Lieberman is sweating right now. Tak it away KOS:

He can’t take for granted that a no-name businessman with no political experience and zero connections in his state’s political establishment will be a non-factor, not with what we’ve done for people like [Howard] Dean and now Ciro.

UH KOSSIE now what exactly have you done for Dean and Ciro, Not to mention Hackett or any of the other 15 candidates that you have publicly backed and then they went down in a spectacular crash and burn, of course none quite as spectacular and as stunning as Hward Dean. I am sure Joe is really really scared. Are you not well?

[clarice]

Kiss of Scorpio*shudder Lieberman, shudder and quake*

[maryrose]

They should be thankful to have someone like Joe Lieberman who actually has his head in the game and understands the real world. Instead they dis him like the clueless whiners they continue to be. They are so predictable. A loss is not a win.-Duh!

[BN]

I seems to me many of the Bush supporters are arguing that the President can do just about anything if he believes it is vital to the war effort. If that isn't their argument, I would be interested to know what things, if any, Bush is prohibited from doing if he believes it is vital to the war effort?

Case in point:

Many have speculated that Sen. Rockefeller is the source of the NYT article about the 'terroris surveillence' program. Would it be ok to wiretap Rockefeller's office or secrectly examine his computer files to determine if he was, in fact, the leaker?

Disclaimer: I am a Democrat, so please assume, if you haven't already, that I hate America and want the terrorsts to kill millions of my countrymen when/if you decide to answer my questions.

[Gary Maxwell]

Really your a Democrat? I would have had no idea from the tone and tenor of your post. Seriously, are you kinding us?

So have you been spied on? Got a real beef or just making one up cuz the welfare checks late and Ophra aint on yet?

[Sue]

BN,

How would you feel if Rocky is found to have leaked the information? Provided the information was gathered by means acceptable to you and not Bush's highly secretive domestic spying program.

[BN]

Gary,

Really your a Democrat?

Yes

I would have had no idea from the tone and tenor of your post. Seriously, are you kinding us?

I am not kinding you.

So have you been spied on?

I don't believe so.

Got a real beef or just making one up cuz the welfare checks late and Ophra aint on yet?

My check doesn't come until April 1st and I am waiting for the Price is Right not Ophra.

I answered all of your questions. Would you please answer mine?

[richard mcenroe]

"Are we gonna get an explanation as to why National Guard intel units are spying on citizens?"

So don't call Al Qaeda on your cell phone on a weekend and you're okay...

[boris]

the President can do just about anything

The NSA program is so far from "doing just about anything" that the premise for your question is bogus.

[BN]

How would you feel if Rocky is found to have leaked the information? Provided the information was gathered by means acceptable to you and not Bush's highly secretive domestic spying program.

If Rocky (Senator Rockefeller) leaked classified information he should be indicted and he doesn't deserve to serve in the Senate. If he was so charged up about this program he should have done more about it withhin the legal framework of the Senate.

If he did leak classified info about this program, I might be able to understand his motives but I can't condone his actions. American lives are at stake, and Sen. Rockefeller doesn't get to decide what information is or is not OK to disclose to the public.

[Mark Amerman]

ajacksonian, you said, quote:

"Each and every individual who works for the Federal government
swears an oath to uphold the Constitution."

Yes, absolutely. I would love to see the constitution enforced.
But before we run around kicking people out of federal agencies
for failing to uphold the constitution -- something I wouldn't mind
seeing happen at all (when we get right down to it) -- I think we
should apply the same standard to federal judges.

If we start such an effort it really has to start in the federal
judiciary since these are the people most directly responsible for
upholding the constitution and the guiltiest, in a sense, when it's
allowed to lapse. Given the staggering transgressions that have
occurred in the twentieth century, beginning anywhere else, in fact,
would be more than a hint of hypocracy.

And ideally the best place to start impeaching would be at the top,
the Supreme Court. Now practically speaking I would be happy with
anywhere in the federal judiciary -- but to toss up a name out of
the thousands of judges that should be impeached for outrageous
contempt for the Constitution: Ruth Bader Ginsberg.

As I said she's not really any guiltier than a thousand other justices,
but she is representative. And she's certain guilty.

[Sue]

BN,

Okay. Just making sure you weren't another Jay Dee infiltrating the forum.

Bush is prohibited from doing anything he isn't allowed to do, either by the constitution or statute. You think he is doing something illegal. I don't.

[skinny]

BN, are you really that clueless. Here's a basic one. Bushitler, cannot have the FBI, CIA, NSA or whoever spy on his polical opponents for political gain. He should not have FBI dossiers on them in the basement of the whitehouse. So no he shouldn't tap Rockefeller's phone or search his computer without a warrant. Do you have any, any evidence that anything like that has been done? And broader than that, do you have any evidence of any abuses of the NSA program?

Do you agree that the government should listen in on international communications with suspected members of al queda? Can you tell me of one Democrat who has stood up and said we should not do this? Do you really see a comparison between spying on international communications with al queda and Bobby Kennedy having Hoover and the FBI spy on Martin Luther King and seeing if he is cheating on his wife?

The basic democrat them is Bush is evil, he's a criminal he lies, he spies, but don't put me down on the record as calling for an end to the criminal NSA program.

[maryrose]

BN;
I would be happy to have both Durbin and Rocky undergo a lie detector test as some CIA personnel are and that would include Risen and other NYT persons. If they are leaking classified in fo they need to be exposed.

[Dwilkers]

"Would it be ok to wiretap Rockefeller's office or secrectly examine his computer files to determine if he was, in fact, the leaker?"

Only if they had a warrant.

There's a distinction here that seems to be escaping people on the left. It has to do with the fundamental nature of the program.

It is the difference between;

1) targeted interception of communications by known or suspected hostiles during a duly authorized military action into and out of the US to and from foreign sources for purposes of preventing attacks, and

2) law enforcement wire-tapping for the purposes of criminal prosecution when a domestic law is suspected of being violated.

The program under discussion is #1 whereas your question would apply to #2.

[Gary Maxwell]

Its not escaping them as much as they dont want to see any distinction. Its all about the whine.

[cathyf]

Would it be ok to wiretap Rockefeller's office or secrectly examine his computer files to determine if he was, in fact, the leaker?

Well, from information which is publicly available, it appears that the DoJ has probable cause for a warrant to search Rockefeller's office and email. It also appears that they are in the process of doing just that.

cathy :-)

[BN]

Sue,

Thanks for answering my question. I understand that you don't believe the President has done anything illegal. What I don't understand is how far the President's powers extend when he is defended our country.

From what I know about the survellience program, the warrantless searches are suppose to be legal because:

A) The President has authority under the Constitution to do these things in his capacity as Commander in Chief.

B) FISA states that it can be superceeded by statute and the authorization to use force passed by Congress in 2001 superceeds FISA.

C) Both A & B

These reasons seem very susceptible to interpretation to me. I think one could justify the scenario I described above regarding wiretapping Rockefeller's office and examining his computers using these arguments. It isn't clear to me why one warrantless search is legal and one is not, if the President is acting as C-in-C in both cases.

[Gary Maxwell]

Sue he does not want to discuss, he wants to make a blinkered statement. He got responses from several but your was less detailed so it was easier to direct it back to his point ( I am not saying it is a point merely that he thinks it is). Ignor for exaple the detail of Dwilkers and return to you. I wonder why?

No distinctions between foreign and domestic calls. No acknowledgement of Al Q on one end of the call, and scupulously avoided detailed repsonses. You may be closer to your JayDee suspicion that you thought. It aint JayDee mind you, but someone that thinks about the same way.

[BN]

Ignor for exaple the detail of Dwilkers and return to you. I wonder why?

Gary,

I told you why in my first post. I am a Democrat and I hate America. Either that or Sue answered me first. Also, who is JayDee?

Dwilkers,

Thank you for answering my questions. I don't mean to play gotcha with you or repeat myself, but I think one of the main distinctions in the two scenarios you summarized is the motive of the person who orders the wiretap.

I certainly agree that a warrant would be needed in order to prosecute someone but if one warrant-less search is legal because the President is acting as CinC why wouldn't any warrantless search be legal if the President is acting as CinC?

[Gary Maxwell]

OT but stunning if true. NASA is set to announce that Cassini ( space probe ) has uncovered evidence of liquid water on a moon of Saturn. Water of course means oxygen. And if oxygen is there then its likely elsewhere in the vast reaches of the universe. So other life is liley too?

[ajacksonian]

Mark Amerman - I am *extremely* wrought and intemperate at the moment, and I will try to say this clearly.

Impeachment of Supreme Court Justices is left up to Congress.

Those Warpowers not under the Executive that are not its purview or jurisdiction, that of commerce is left up to Congress.

Congress has set the rules and the means of enforcing them.

Congress has set up the IG to investigate wrongdoing.

There is much that Congress can do and doesn't.

There is much that Congress has done and doesn't like when their rules and laws are followed.

Sworn to uphold and defend the Constitution. To exercise their powers on its behalf.

If it disbelieves the program, people running it, the IG of the Agency doing the work and has received no whistleblower information, and further dislikes such going on under the very laws they have provided they still have one option.

Similarly, if a Supreme Court Justice or Justices are truly seeking to expand the power of the Judiciary, negate the checks and balances and otherwise turn the Republic into a Law of Rules State, then Congress should act.

This entire Congress is sheep, afraid of the powers We The People have given them to properly defend us. Many in the Congress complain when the Executive fully exercises the powers under the purview of that office and wish to restrain it *first*, ignoring the fact they have been told that all the Executive has is *not enough*. They have heard that from every Cabinet officer, from everyone they call to testify when they are asked 'Are we winning the war on terrorism?' The answer varies but is basically: we are doing what we can and it is not enough.

If Congress cannot be bothered to actually read the Constitution and understand their powers and obligations, beyond the checks and balances, then We are lost as a nation.

And while I be thrice blamed and reminded of my final resting place, I use the other finger to point as I feel it needs be pointed at Congress.

I will not vote for any of those in office today for *anything* until they tell me how they are going to exercise their powers to play their part in defense of the People and the Constitution. All have remained silent on that in this Congress.

I would not trust any of them as dog catcher, as they would look to the rights of fleas first and ignore the frothing beast they sit upon.

Now I shall seek to regain my temperment and coolness to treat well with a familial houseguest that oversleeps. She does not deserve the venom I feel for the elected leaders of this country.

Good day to all. Perhaps on the morrow if I have any wit left me.

[danking70]

Syl,

"borderline unConstitutional, I'd love for it to be tested."

What's stopping the NY Times from bringing a case? I mean besides knowing they'll lose...

[cathyf]

BN,

Do you think that it was proper for the Reno justice department to search Aldrich Ames' home without a warrant?

As for the US Government searching the office (bearing the nameplate "Rockefeller") which is US Government property and the computers which are US government property plugged into the network cable which is US Government property, well, guess what, it's US Government property and Rockefeller has no right to keep the owner from searching it. If they find out he's been using a US Government computer to disclose classified information to unauthorized recipients he should certainly be less protected than if he is using a US Government computer to download porn or bet on sports.

cathy :-)

[Mark Amerman]

ajacksonian,

In all honesty I really don't know what to do. It doesn't
solve a problem to pass a law making the problem illegal.

Modifying human behavior is much more difficult than that.
To have a chance you need to construct mechanisms that
go with human nature rather than just plain defying them.

As it is now, all the actors in government, senators,
representatives, presidents, judges, employees of the
federal government, are motivated to believe that the
constitution is whatever they say it means. There is no
institutional barrier to the contrary, nothing that taps
into human nature and can be relied on.

When the constitution means whatever you say it means,
well obviously, it can hardly serve as a check on the
powers of those it is meant to hold in check.

We lost the constitution in 1913 when the seventeenth amendment
was passed; it's hard to see how we can regain it.

The only reality the constitution possesses today is as
an idea and that in the minds of fewer and fewer people.
More and more the real constitution we operate under is
"Might is Right" which is the same constitution that all the
rest of world shares and for that matter most of human history.

[The Unbeliever]

BN, as to distinguishing between motives, I think the problem is that collecting intelligence on foreign operations and agents is a legitimate wartime activity (covered under Article II), but domestic criminal prosecutions are covered under the Fourth Amendment. This is essentially the crux of the debate over the NSA problem: does spying on domestic agents of a foreign enemy fall under the former, or the latter?

Your question, however, is problematic because of the phrasing. You asked:

Would it be ok to wiretap Rockefeller's office or secrectly examine his computer files to determine if he was, in fact, the leaker?

I assume you meant "Would it be ok to wiretap/search without a warrant", since taking such action with a warrant hardly merits debate. I would say the answer is, "depends on who was doing the search". I highly doubt such a search would fall under the NSA program, since no contact with enemy agents ocurred in the communications between Rockefeller and the NYT (insert obligatory NYT-bashing joke here). If it had, that would fall under the Article II powers of the Executive branch. But if that search was part of a DOJ investigation into leaks, or a CIA investigation into the same, that would require a warrant.

Wiser legal heads than mine have better opinions whether leaking national security info to the media, instead of directly to enemy agents, counts as war time treason or just plain vanilla illegal leaking. I don't know enough to definitively say one way or the other. But the problem most of us have with critics of the NSA program is that such a search is not even within the purview of the NSA program; from all the info we have available, it is a program designed to intercept calls to and from enemy agents. The only sticking point seems to be how long they have to wait to get a warrant when those operatives contact domestic agents, not if they get a warrant at all.

[BN]

Cathy,

Thanks for the response. I don't have a big problem with the result of the Ames' invsetigaton, but I do not think it was proper for the Clinton Admin to search his house w/o a warrant. Regardless of his deeds, he is a US citizen and the Gov't shouldn't have the power to search his home without a warrant.

Re: Rockefeller's office & computer being US Gov't property. I certainly agree that an employer has every right to search a computer or office it owns, but I dont' think that is relevant to a discussion about the powers of the Presidency. What if Rockefeller leaked the classified info via a non-gov't owned cell phone, blackberry or computer? Would the President have the right to search those w/o a warrant if he was acting in his capacity as CinC?

[Dwilkers]

"...I think one of the main distinctions in the two scenarios you summarized is the motive of the person..."

No. It is about their precise behavior under the program that has been publicized and described in the press, not some sky-is-falling willy nilly.

I don't know about you but since the Dems have been in on this from the beginning I'd guess its just barely possible that if Rocky was being wiretapped as part of the program we'd have heard about it by now.

And I know damn well if the NYTimes had even a whiff of such a thing we'd have had that information drilled into us with a pick-axe.

[TexasToast]

There is nothing at all in the Times about what we ought to do next - is this a valuable program, is FISA unworkable, is this level of Congressional oversight appropriate - who cares?

As I read the editorial, I think the answers to these questions are obvious.
The "program", no matter how valuable, should not be warrentless, there is no evidence that the FISA system is unworkable and the executive's unilateral changing of the FISA system is extralegal, and the level of congressional oversight propposed by Pat Roberts is not acceptable.

Its an editorial. Of course they have a point of view.

[Sue]

BN,

What I don't understand is how far the President's powers extend when he is defended our country.

As far as the constitution and statute allows. I get the impression you think I would support the president if he was doing something illegal, simply because I don't find the NSA wiretapping, from what we know of it, to be illegal.

[Sue]

Texas,

You must have information that others have not been privvy to. Otherwise, your response is an editorial also.

[Cecil Turner]

I would be interested to know what things, if any, Bush is prohibited from doing if he believes it is vital to the war effort?

Well, anything that wasn't actually, you know, incident to war (and obvious examples in settled law would be things like federalizing steel mills). However, from a recent SCOTUS ruling capturing enemy combatants obviously would be, and further authorized by the AUMF:

detention of individuals falling into the limited category [. . .] is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized . . . [snips for brevity]

It's hard to see how one could claim intercepting enmy communications could fall outside that characterization. Further, the law of war may be applied to citizens, even to the point of prosecution in a military tribunal:

An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war.

It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused.

[Not that this has much to do with the conversation, except I like the phrase "gravamen of the offense"; and to see the laws of war applied to citizens warms the cockles of my flinty, conservative, civil-liberties hating heart.]

Would it be ok to wiretap Rockefeller's office or secrectly examine his computer files to determine if he was, in fact, the leaker?

As much as I'd like to haul Sen Rockefeller in front of a tribunal, even hypothetically, this is not going to work. It's not a law of war issue (at worst it's treason), he's not an enemy combatant, and he's entitled to civilian due process and not subject to a warrantless search. However, if he happened to be talking to an Al Qaeda operative on the other end of the line whom we'd already tapped . . .

I certainly agree that a warrant would be needed in order to prosecute someone . . .

I don't think that's on, either. If a warrant is not required for a search, there's no bar to using evidence obtained in the search in a trial (e.g., see US v. Bin Laden).

[TexasToast]

Actually Sue, what I was trying to say was that the opinion of the editorial writer on these issues was obvious. Tom obviously holds a different opinion but the “failure” of the editorial writer to emphasize the “issues” Tom wants to emphasize is nothing more than a difference of opinion – not some sort of ethical lapse.

I happen to agree with the editorial writer on these points, but that was not my point and I should have been clearer.

[Sue]

Texas,

You were very clear. And so was I. You either know something the rest of us don't or this

"As I read the editorial, I think the answers to these questions are obvious.
The "program", no matter how valuable, should not be warrentless, there is no evidence that the FISA system is unworkable and the executive's unilateral changing of the FISA system is extralegal, and the level of congressional oversight propposed by Pat Roberts is not acceptable."

is your own editorial.

[Specter]

Off-Topic:

Breaking News: Dubai Ports World has announced it will step away from the ports deal. Saw it on Comcast here.

[Sue]

Specter,

I told you. It was all about Halliburton. ::grin::