They're Not Going To Stop

The NY Times escalates its war on America with its latest revelations about the high-tech capability of the NSA to monitor and data-mine international communications.

Their first wave of coverage if the "Bush Spied" scandal was fizzling out - even Doug Jehl of the Times admitted the obvious on Friday:

Among Those Told of Program, Few Objected

By DOUGLAS JEHL

WASHINGTON, Dec. 22 - As members of Congress seek more information about the eavesdropping program authorized by President Bush, their requests are being complicated by the fact that Congressional leaders in both parties acquiesced in the operation.

Only the Senate Judiciary Committee, under Arlen Specter, Republican of Pennsylvania, has pledged to hold hearings on the program, which was first publicly disclosed a week ago. Democrats are urging that the House and Senate Intelligence Committees conduct inquiries, but the Republicans who control those panels have not agreed to do so.

Some Republicans are suggesting that it is disingenuous to complain now about the eavesdropping effort.

"The record is clear; Congressional leaders at a minimum tacitly supported the program," Representative Peter Hoekstra of Michigan, the chairman of House Intelligence Committee, said this week. Mr. Hoekstra said Democrats should "attempt to understand why their leaders did not feel the same sense of outrage about the program" that some in the party are now expressing.

Rep. Peter Hoekstra had more to say on Friday afternoon in a radio chat with Mark Levin, sitting in for Sean Hannity - he was briefed twice in 2005, each time with the ranking House Democrat, Jane Harmon, and the two Senators from the SSCI, Chairman Pat Roberts and Sen. Rockefeller.

Rep. Hoekstra said that in each briefing they had ample opportunity to ask questions and gain more insight into the program.  He also said that his impression was that his fellow Congressman were impressed by the results of the program as well as by the legal safeguards intended to protect the privacy rights of Americans.

But that was yesterday.  Today, the Times is releasing even more information about this secret NSA program:

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.

And hold your breath for this legal gray area:

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.

The government's collection and analysis of phone and Internet traffic have raised questions among some law enforcement and judicial officials familiar with the program. One issue of concern to the Foreign Intelligence Surveillance Court, which has reviewed some separate warrant applications growing out of the N.S.A.'s surveillance program, is whether the court has legal authority over calls outside the United States that happen to pass through American-based telephonic "switches," according to officials familiar with the matter.

...

Several officials said that after President Bush's order authorizing the N.S.A. program, senior government officials arranged with officials of some of the nation's largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States' communications networks and international networks. The identities of the corporations involved could not be determined.

The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches.

One outside expert on communications privacy who previously worked at the N.S.A. said that to exploit its technological capabilities, the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.

The growth of that transit traffic had become a major issue for the intelligence community, officials say, because it had not been fully addressed by 1970's-era laws and regulations governing the N.S.A. Now that foreign calls were being routed through switches on American soil, some judges and law enforcement officials regarded eavesdropping on those calls as a possible violation of those decades-old restrictions, including the Foreign Intelligence Surveillance Act, which requires court-approved warrants for domestic surveillance.

Look - my inner geek is finding this to be very interesting.  But is there any way in the world that the Times can be persuaded that this just might not be in America's best interest, even if it has some slight potential to embarrass Bush?

I only ask as a concerned citizen; as a vicious partisan, I think the NY Times, in combination with the Moore-Streisand wing of the party, is pushing the Dems off a cliff.

What is the Dem message here?  "Oh my gosh, that evil Bush is spying on Al Qaeda and anyone who talks to them - as Democrats, we will never do that!"

Good luck.  Let us know how that works out in '06.

As to stopping the Times - maybe we do need a ruthless investigation of these leaks.  I don't know.  But they are unaccountable and out of control, and they scare me.

Just remember, it was only last week that Risen and Lichtblau wrote this, when the broke the NSA story:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

Emphasis added.  Are we expected to believe that Risen and Lichtblau really developed this new story in the last week?  I favor the alternative hypothesis - this is some of the information that, a week ago, was omitted for being useful to terrorists.

Or is the really good stuff coming out next week?  I can't wait.

UPDATE:  Kevin Drum agrees that these revelations look important:

This is interesting stuff, and it sounds like pretty useful stuff to me, too. This program and this technology might very well be important elements in the fight against al-Qaeda.

However, he then endorses oversight by way of the NY Times front page:

But that's not the point. The point is that it appears to be illegal, and if George Bush believed it was genuinely critical to our national security he should have asked Congress to pass legislation authorizing it. The president is simply not allowed to decide for himself to break the law simply because it's inconvenient, and the excuse that he couldn't go to Congress because that would expose valuable secrets to al-Qaeda is laughable.

Well.  Where Kevin says "appears to be illegal", I would substitute "appears to be in a legal gray area", which I think more accurately captures the Times reporting.  But what to say, after four years of briefings to Congressional leaders?  Silence of the Lambs?  Silence gives consent?

One supposed advantage of a representative democracy is that various factions, representing competing institutional interests (Executive versus Legislative) or party interests (Republicans versus Democrats) can resolve some issues IN SECRET!  This particular  NSA program appears to be well suited to such a quiet conversation.  And one might have thought, after four years of briefings, that the quiet conversation was underway - Hoekstra apparently was fooled.

Lots more reax at Memeorandum.

Comments

[Christopher Fotos]

I am seriously wondering if the people writing and publishing these stories are just boobs. Granted, boobs that could end up helping me get incinerated in Washington. But still--aside from the Bush McHitler culture that sustains them--are they just kind of stupid?

[SteveMG]

Great. Just wonderful.

Any wagers on how many extra copies of today's edition of the Times were purchased by the Chinese Embassy (among other missions)?

One would hope that the Times understands that the US has more enemies than just al-Qaeda. But I guess the response will be, "C'mon, all this stuff was already known anyway."

And a great AP headline on this to make it even better:

NYT: NSA Spying Broader Than Bush Admitted

Right, he was supposed to give us all of these details?

Why do that? Wouldn't want to scoop the Times.

Damned.

SMG

[danking]

Are they insane?

[danking]

"NYT: NSA Spying Broader Than Bush Admitted"

Yeah, here's the shocker: Our spies spied on other countries with this new tech.

[topsecretk9]

At this rate, it would behoove the DNC to plead with the Times to stop.

[Neuro-conservative]

An open letter to all the lefties and trolls out there (that means you, Loblaw!):

Can someone please tell me what actual harm to our liberties is done by this program (or the monitoring of radiation emissions)? Points will be deducted for use of hypothetical slippery slopes, and invocations of Lord Acton or other cliches. Violations of Godwin's Law will be punished by a fine not to exceed $10,000.

[topsecretk9]

Yes Neuro, I was just going to comment that my radiation is my own business!

The funny part is they have no problem with Kelo...Gov't has every right to collude with business and take my property, but I'll be damned if they monitor for radiation emissions!

[Neuro-conservative]

I agree with TM's speculation that this info is not new (at least to Risen & Lichtblau). It seems hard to believe that the leakers are going to step forward just as the heat is on for the last leak. Aren't they worried that their phones are being tapped?

[Neuro-conservative]

TSK9 -- My biggest regret about the timing of this latest NY Times blast is that it is going to step on the publicity for the radiation story. I was looking forward to Howard Dean's reaction.

[clarice]

It's time to post the Pentagon Papers decision because I think the NYT's lawyers may be as addle pated as their reporters. As I recall it, the Court indicated that f it could be proven their was actual danger to the national security, prosecution ws possible. And then there's this Statute which seems to be applicable:
I believe it is 18 USC Section 798 (though provisions in 793-797 apply. Part of 798
Sec. 798. Disclosure of classified information
(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information--

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes--

Shall be fined under this title or imprisoned not more than ten years, or both.

[Terrie]

What the hell happened to the Democrat Party and the patriotic tradition of loyal opposition? Except for Joe Lieberman and Ed Koch and few others, the national party is peopled by cynical liars and cowards.

I blame Bill Clinton and the MSM who adore him for institutionalizing the politics of personal destruction, prizing victory over facts and principle. I blame the GOP leadership -- or chronic absence thereof -- for making the Democrat strategy so successful. As soon as Reagan exited the White House, the left began to rewrite the history of his accomplishments and, until Reagan's death, no GOP leaders could be bothered to correct the record. I bet there are still many so-called moderates who believe that the 1980s economy was the worst since the Depression after having it hammered into every layer of their consciousness by rabid repetition.

Hey, if it works, the new Democrats don't care who it hurts.

[Neuro-conservative]

Excellent work, Clarice! As Kim might say:

I see a bad moon, Risen.
==========================

[danking]

Do you wonder if Fitzgerald is thinking:

"And I got stuck with this lousy Plame case."

How do we get a snowball rolling? I'm pissed.

[Neuro-conservative]

Some interesting clues on the leakers' identities [emph added]:

The government's collection and analysis of phone and Internet traffic have raised questions among some law enforcement and judicial officials familiar with the program. One issue of concern to the Foreign Intelligence Surveillance Court, which has reviewed some separate warrant applications growing out of the N.S.A.'s surveillance program, is whether the court has legal authority over calls outside the United States that happen to pass through American-based telephonic "switches," according to officials familiar with the matter.

"There was a lot of discussion about the switches" in conversations with the court, a Justice Department official said, referring to the gateways through which much of the communications traffic flows. "You're talking about access to such a vast amount of communications, and the question was, How do you minimize something that's on a switch that's carrying such large volumes of traffic? The court was very, very concerned about that."

Would Judge Robertson qualify as a "judicial official," and wouldn't he be in a position to know what is of concern to the FISC?

As to who might be a mole in the Justice Dept., I have no idea, but it does lead away from the usual CIA/State/former NSC suspects.

[topsecretk9]

danking.. in light of theses leaks to Fitz, downright emasculating

[clarice]

Here is the relevant portion of Stewart's opinion (White concurring ) in the Pentagon Papers case(which BTW was a prior restraint issue not a criminal prosecution):

But in the cases before us we are asked neither to construe specific regulations nor to apply specific laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us. I join the judgments of the Court.

[kim]

I see NC a risin' star,
Risen's moon is blue and far.
===========================================

[Lew Clark]

This has gone from silly, to bad, to dangerous, to very dangerous. This is worse than Aldrich Aimes, because we weren't in "open war" with Russia when Aimes was funneling national secrets to the Russians. A group of traitors within our government has chosen to use a willing media to engage in treason, not just against a president that they have political differences with, but with the American people. We don't need to establish a special council or hold congressional hearings. The FBI has authority to investigate and DoJ to prosecute these acts. The journalists, editors and anyone else knowledgable of these leaks should be subpoenaed immediately. And given the option of naming their sources or face prosecution for withholding evidence. There is no first amendment protection for those receiving classified information. They cannot be prosecuted for printing the information, but they can be prosecuted for withholding evidence in a criminal investigation. And we need to move swiftly to stop the leaks before more damage is done to our national security.

[owl]

Holie Molie....if this does not scare the crap out of you, nothing will. I have been screaming treason but now I know they are truly nuts.

[Terrie]

Yesterday Scott Johnson of Power Line cited a March 2000 WSJ column written by George Mason University Foundation Professor of Law Ronald Rotunda, which serves as a timely reminder of Judge Robertson's blatantly partisan actions as a U.S. district court judge, one of the "the Magnificent Seven" on the D.C. district court. I apologize for the lengthy excerpt below and the lack of a link to Rotunda's original column. You can find Johnson's post at http://tinyurl.com/9dv35.

"When I was a special consultant to Kenneth Starr's Office of Independent Counsel, the OIC often found its investigation delayed and disadvantaged by lower-court rulings subsequently reversed on appeal. When the Department of Justice brought its campaign-finance prosecutions, it also ran into a series of adverse rulings, also reversed on appeal. The trial judges who made a series of errors were all members of 'the Magnificent Seven,' a label the Clinton appointees gave themselves (until Mr. Clinton added an eighth judge in 1998).

Normally, criminal cases are supposed to be assigned randomly. However, we now know that when criminal prosecutions were brought against Webster Hubbell and others with close ties to Mr. Clinton, Chief Judge Norma Holloway Johnson of the U.S. District Court in Washington, D.C., secretly bypassed the traditional random assignment system, passed over more experienced judges, and assigned the cases to the Magnificent Seven. When her colleagues discovered what she had done, some of them disclosed this information to the press. In a stunning rebuke, they last month took away her power to tamper with judicial assignments. But the damage was already done.

Judge Johnson assigned the Hubbell case to Judge James Robertson. She assigned to Judge Paul Friedman the campaign-finance case against Charlie Trie, the campaign-finance case against Democratic fund-raiser Maria Hsia, and the false-statements case against Thai lobbyist Pauline Kanchanalak. These Clinton- appointed judges then issued rulings that crippled the prosecution; in all these cases, various panels of the D.C. Circuit reversed. Do you detect a pattern here?

In the case of Ms. Hsia, Judge Johnson asked the Justice Department to ask her to assign the case to Judge Friedman. Then she used that request as her justification to make the special assignment. Some people launder money; others launder requests. I have never heard before of a judge playing such cat-and- mouse games in an apparent effort to hide her motives.

Judge Johnson assigned the case against Democratic fund-raiser Howard Glicken to Judge Henry H. Kennedy Jr., a 1997 Clinton appointee, claiming that it was 'complicated or protracted,' although Mr. Glicken's lawyer announced, when Mr. Glicken was charged, that he would plead guilty. She assigned the case against Miami fund-raiser Mark Jimenez to Judge Emmet G. Sullivan, a 1994 appointee.

One case in particular stands out, the prosecution of Webster Hubbell for income tax evasion. Parties not particularly close to Mr. Hubbell -- but close to the president -- paid Mr. Hubbell nearly $1 million. In return, Mr. Hubbell, who was in prison at the time, appeared to do no work. A cynic might call the payments hush money.

Judge Robertson, who presided over this case, had worked in and donated money to, President Clinton's 1992 campaign. In the Hubbell tax-fraud prosecution, Judge Robertson ruled that he could ignore the ruling of the three-judge panel of the D.C. Circuit and hold that the OIC did not have jurisdiction to prosecute Mr. Hubbell and the other defendants, and that it could not use tax documents subpoenaed from Mr. Hubbell. Judge Robertson used incendiary language, calling the OIC's tactics (which other circuits had approved) 'scary.' The D.C. Circuit agreed with these other circuits and reversed.

At the time, the OIC did not know that Judge Johnson had manipulated the assignment to get the case before Judge Robertson. I went back to the transcripts after this information became public and saw Judge Robertson's comments in a new light. The transcript reads as if Judge Robertson had decided that the case was not going to trial; he just had not decided why.

At the hearing of May 8, 1998, OIC counsel asked Judge Robertson to set a trial date, which is standard operating procedure. The judge responded that he normally does that but it would be 'arbitrary' to do so here, 'when we're looking at the kinds of motions that I'm sure are coming.' In other words, the judge refused to set a trial date because of motions not even filed; that is not standard operating procedure. The OIC attorney replied that he had already talked to defense counsel and they were prepared to find a mutually agreeable date, to which Judge Robertson answered, apparently in surprise: 'Oh.' He still refused to set a date.

At the June 2, 1998 hearing, the judge again questioned whether 'it makes sense for us to set a trial date,' and he volunteered that any date will be written 'in sand here if there are, heaven forfend, interlocutory appeals.' The defendants are not entitled to interlocutory appeals but the prosecution is, so once more it appeared that the judge had already decided that there would be no trial.

On July 1, three business days after oral argument, Judge Robertson issued a lengthy written opinion. This is an extraordinarily brief time in which to formulate a decision and write it up, unless the judge had made up his mind in advance.

Perhaps it was happenstance that Judge Johnson secretly assigned the Hubbell case to Judge Robertson, a Clinton appointee. Perhaps Judge Robertson's statements in the transcript do not indicate that he, from the very beginning, had prejudged the matter and decided there would be no trial. But then another eyebrow-raiser occurred: It was discovered that Clinton-appointed judges on the D.C. district court were holding monthly caucuses from which other federal judges were excluded.

Four non-Clinton judges in the D.C. court, appointed by both Democrats and Republicans, were so upset that they anonymously told the press they questioned the propriety of these caucuses. One was quoted as saying: 'We all come with political viewpoints but we try to leave politics behind. Unfortunately, the Clinton appointees have gone off on their own.'"

[MJW]

Brave, courageous, but, I hope, not so bold.

[clarice]

Trying to close boldly.

[Brendan McDaid]

TM: "maybe we do need a ruthless investigation of these leaks."
Yeah. Make my day. Then we can get Bush and Cheney and their agents up on the stand to testify. That should be REAL interesting.

[clarice]

So, Brendan, you think the WH has Risen on speed dial and is phoning in this stuff? Given that these leaks are just encouraging more lunacy by the Dems,which in turn is pumping up the President's approval ratings it is an interesting theory.

[topsecretk9]

Now that it's out there, does the Times consider this a negative? These people are nuts...Brendan, talk to hand buddy...

"All that data is mined with the cooperation of the government and shared with them, and since 9/11, there's been much more active involvement in that area," said the former manager, a telecommunications expert who did not want his name or that of his former company used because of concern about revealing trade secrets.

Such information often proves just as valuable to the government as eavesdropping on the calls themselves, the former manager said.

"If they get content, that's useful to them too, but the real plum is going to be the transaction data and the traffic analysis," he said. "Massive amounts of traffic analysis information - who is calling whom, who is in Osama Bin Laden's circle of family and friends - is used to identify lines of communication that are then given closer scrutiny."

I like this
and since 9/11, there's been much more active involvement in that area, and I'm betting most sane people do too.

[MJW]

Bye, bye italics. (I hope)

[MJW]

Please fellow posters: if you use html tags, Preview is your friend.

[Dwilkers]

So it appears the Times has seen the polling and decided they need to educate us. So they turn up the volume. I watched a lot more network stuff than normal yesterday and the badness of this action by Bush was a recurrent theme.

Who knows, maybe they can convince more of the public that the POTUS shouldn't be able to do this sort of thing. I doubt it though.

Today my local paper carries a story from the LATimes that exposes a program to monitor radiation levels and other emissions around or near suspect Muslim sites in the US.

So now anyone that was planning to bring a nuke or bio weapon into the country knows not to take it to a mosque. Isn't that wonderful?

Honestly I wish we had a DoJ with the huevos to take on the media over this stuff, but I don't think we do.

REALLY what I'd like to see is every single government employee or official that had access to this information strapped to a polygraph - because whoever leaked this stuff is a criminal (being generous) of enormous impact. Well, that would be a good start anyway.

[davod]

The lawyers and diplomats will be the death of us.

It is lawyers who write most of the laws, the Congress just signs off after being convinced that the language reflects what they want it to say (Slightly of the suubject but it amplifies my point - very few Congressmen even looked at the intelligence offered to them before agreeing to the act the led us down the path to war.)

How any law is allowed to be enacted with so many wherefore's in it is beyond me.

The diplomats, in the main, spend their lives maintaining the status quo. Unless given explicit plain language directives they cannot explain away as something else, they will procrastinate or continue on a course as if there is no change in policy.

[r flanagan]

I don't see how today's article adds
to the information already available to the
terrorists.

[GreedISGood]

We can wait forever for criminal proceedings against the NYT. Forever is a long long time and the results will be "less" than whatever most of us here want to have happen to them.

There is another choice. We must do it now - all of us - every one of us that calls ourselves a patriot.

Cancel your subscription and relegate this rag to the National Enquirer level it so supposes it wants to be.

Don't buy it at the newstand, don't have it delivered, and DON'T do the crossword puzzle.

[TM]

Yeah. Make my day. Then we can get Bush and Cheney and their agents up on the stand to testify. That should be REAL interesting.

What folks have not yet focused on is that there is no obvious need for a special prosecutor in this case. Do you think Gonzalez will want to turn this leak investigation into an attempt to impeach Bush?

Or do you think maybe the Times would be safer if we *did* have a new special prosecutor to look at this?

Do you think Dems should hold out for a runaway special prosecutor?

[TM]

Don't buy it at the newstand, don't have it delivered, and DON'T do the crossword puzzle.

I am kind of hoping they solve this by putting their big stories on Times Select.

[Extraneus]

TM: As to stopping the Times - maybe we do need a ruthless investigation of these leaks. I don't know. But they are unaccountable and out of control, and they scare me.

Agreed. So how would that work? Expand Fitzgerald's scope? Name another prosecutor and wait for him/her to get organized? Do we even need a special prosecutor?

As for doing something right now, can the NYT somehow be prevented from further disclosures in violation of the 18 USC Section 798 statute Clarice posted?

[r flanagan]

I agree that NSAgate is boosting Bush's
poll numbers but looking forward to
an SP investigation which will have the opposite effect.

Add this to the list of identical assertions by JOM and its mirror image, Daily Kos , C&L , Whisky Bar et al. :

oThe NYT is biased against "us" ,.
oChris Matthews is biased against "us"
oditto for the MSM ,
oThe President should be impeached
oThere should be a special prosecutor(TM's
disagreement noted)
oOh yeah , and the members of the opposite (Democrat/Republican) party are dumb,
unpatriotic and conspiratorial and
besides their feet smell.

[Extraneus]

r_flanagan, why do you think a criminal investivation will lower Bush's poll numbers? I can't imagine too much sympathy for the position that it's patriotic to compromise national security for political gain. Big Brother fear? Since Bush was nominally supportive of the Fitzgerald investigation, it would be pretty hypocritical of the Democrats (and MSM) to wail too much about an obviously more serious one. Either way, how it plays politically should be secondary, shouldn't it? Wouldn't both sides agree that if someone damaged national security for political gain, they should be prosecuted?

[boris]

Since it's a national security issue, not just a criminal justice one, presidential war authority can be used for investigation, surveilance, and detention for the duration.

heh

[chef]

In order to criticize the NYT, do we really need to need to talk about its "War on America"? Hyperbole like this vitiates whatever valid point you are trying to make. People who might be persuaded roll their eyes and tune out.

[boris]

It seems the technology used by the NSA is incompatible with FISA, as written, for technical reasons (it’s what? 30 yrs old?) which (Daschle's) congress refused to address in the AUMF. Given that, the executive order with committee notification seems eminently reasonable.

BTW isn't Daschle's refusal (after 911) to authorize (because of 911) use of force against another 911 attack from inside the country (like 911) clear evidence that his party never did take 911 seriously, but only went along in the 911 aftermath with the bare minimum necessary (despite 911) to avoid political suicide (over 911).

Somehow I suspect this argument will appear closer to the elections.

[Crew v1.0]

The Times decries the administration's tendency toward secrecy, and points to it as some justification for the disclosure of information leaked to it by persons whose identities, motivations, bona fides and credibility are occluded from us joes. All the news that's fit to float. On the other hand, we joes will never know, because transparency is lacking, the answer to TM's excellent question: has the Times now leaked the "other part" of the story, the part they supposedly shepherded in secrecy and kept from the bad guys? And whatever that "other part" is, by what contract with us will the Times hold it in secrecy? When will they decide that circumstances have changed, and by what criteria? Also, if they are so kind as to keep it secret for the next, say, eighteen months, what safeguards will be used to keep it so, and are they adequate safeguards? And if a disgrunted Times-man or woman decides, say, that Keller and Punch are wrong and should go public with it, else appease the dreaded Chimp Dictator, will the disgrunted Times-man be allowed to leak the story to the Post? If he does leak it to Dana Priest, will the Times fire the leaker of the withheld portion of the leak, or does the Times' commitment to the First Amendment, to the uncrushing of dissent, to the speaking of truth to power, and to "open door" policies in their no-doubt liberal employment practices, require that the leaking Times-man be (a) suspended, (b) promoted, (c) placed on leave, (d) assigned to be Frank Rich's personal assistant, or (e) what, exactly?

Never mind. Forget I asked. Go get a cup of coffee, and try, try to forget.

Trust.

"Courage."

[Patrick R. Sullivan]

If I were Ann Coulter I'd be on my publisher to print up a bunch more copies of "Treason", in which she says that liberals just can't 'root for America'. Cause that's what's going on with the Times.

That, and that Jung Chang's new "Mao, The Unknown Story" vindicates her charge against George C Marshall that he was hopelessly incompetent as a diplomat. According to the book, using Chinese sources, Chiang Kai-shek would have annihilated Mao's army in the summer of 1946, but Marshall would have cut off all funding if he did.

So, Chiang was forced to offer a cease fire of four months, during which Stalin was able to re-train Mao's forces and re-arm them with captured Japanese weaponry. Which they used to ultimately impose Communism on half a billion people, along the way murdering 70 million of them.

Harry Reid, Jay Rockefeller, Barbara Boxer....the tradition continues.

[Dave]

"Congressional leaders in both parties acquiesced in the operation"

Did you ever read the voice recorder transcriptions of the Air Florida or Tenerife air disasters? In both, the pilot is hell-bent on doing it his way and the copilot is going along even though his voice betrays serious doubt. The copilot's training says the pilot is the boss, and it's hard to overcome that even when he knows the pilot is making a mistake.

In retrospect, I'm sure those copilots wish they had spoken up.

[R FLANAGAN]

Extraneus. Whatever sympathy Bush get's from the leaks will peak prior to an investigation.

An investigation will start to create a counterveiling first amendment or simply anti-authority sympathy just as Ken Starr's
report was followed by democratic gains
in Nov 98.

My distaste for Judy Miller's WMD reporting became sympathetic approval when Fitz imprisoned her.

BTW I still don't know what the bad guys
learned from today's article that they
couldn't have learned by googling
' data mining '.

[boris]

BTW I still don't know what the bad guys
learned from today's article that they
couldn't have learned by googling
' data mining '.

Once again the robot flanagan attempts to substitute lack of imagination for logic.

When the specificity of information is good enough to enable taking appropriate counter measures, intelligence gathering is reduced.

BTW Data mining is not real time.

[clarice]

Let's hope they're too busy moving nuclear material to non-monitored spots to deal with the communication problem right now.

If there is a way to prosecute for these leaks(without , for example, revealing even more classified information), I think the Administration will do it..and they won't be bothered with flanagan's lefty let's consider the polls point of view.

[reliapundit]

THE LEFT IS WRONG AGAIN: RADIATION DETECTION WITHOUT A COURT ORDER IS LEGAL AND CONSTITUTIONAL

http://astuteblogger.blogspot.com/2005/12/left-is-wrong-again-radiation.html

USNEWS ran a traitorous story - based on an illegal and traitorous leak - about how the FBI and the DoE's "N.E.S.T." service have been monitoring hundreds of sites in the USA (which would have no legal use of radioactive material) in an effort to detect radiation which might indicate the presence of radioactive material for a nuclear device or a dirty bomb. Many of the sites monitored have been mosques. (GEE: I WONDER WHY?! Sheesh.)

Many other outlets in the MSM (350 so far, according to a GOOGLE NEWS search I just ran) have portrayed this monitoring by the FBI as illegal and unconstitutional because these efforts at radiation detection were done without a court-order, and just based on intelligence. THIS IS WRONG. Here are two great analyses of the issues involved:

(1) From a commenter ("The Original TS") at VOLOKH who asked if measuring ambient gamma rays different from measuring infrared radiation emanating from a specific surface (which the SCOTUS has previously held does require a court order? [SEE: Kyllo v. United States.]

Yes, extremely different. First, gamma ray radiation can't be used for imaging. Infrared radiation can. One of the big Constitutional problems in Kyllo was that allowing the police to do infrared imaging would effectively mean that everyone was living in glass houses without curtains.

Measuring radioactivity does not present the same issues. It's more aking to "smell" than it is to "sight." While it is improper for the police to use infrared detectors to "see" a drug lab from the street, there is no problem with "smelling" a drug lab from the street.

Another point is that, unlike infrared imaging, measuring radiation is extremely unlikely to reveal legal activity. Everything emits infrared radiation, especially, people. Hardly anything emits high levels of radiation, especially people. In fact, I'd be willing to bet (though I don't actually know for sure) that possessing something that is highly radioactive is a per se violation of some federal statute. In other words, at some level, radiating your neighborhood is a crime in and of itself.

The point here is that measuring radiation levels is not violating anyone's privacy since it won't provide information regarding legal activities.

(2) Even arch-liberal Justice JP Stevens recognizes that this type of detection is perfectly constitutional (via Jim Robbins at NRO):

Generally speaking, can law enforcement authorities use nuclear detection devices against someone's house without a warrant? This question is at root of the latest "no warrant" controversy.

Readers would do well to examine the Supreme Court case Illinois v. Caballes, decided earlier this year. The Court ruled that when a dog sniffed out drugs during a routine traffic stop, without a warrant, it did not constitute an illegal search because, in the words of Justice Stevens,

"Official conduct that does not 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment. Jacobsen, 466 U.S., at 123." The Court noted that "any interest in possessing contraband cannot be deemed 'legitimate,' and thus, governmental conduct that only reveals the possession of contraband 'compromises no legitimate privacy interest.' Ibid."

Note that in an earlier case, Kyllo v. US, the Court ruled that thermal detection devices could not be used to surveil houses without a warrant because this would compromise privacy -- the difference being that such devices pick up licit as well as illicit activity. In his dissent in that case, Justice Stevens pondered whether "public officials should not have to avert their senses or their equipment from detecting emissions in the public domain such as ...radioactive emissions .. which could identify hazards to the community.

In my judgment, monitoring such emissions with 'sense-enhancing technology,' ... and drawing useful conclusions from such monitoring, is an entirely reasonable public service."

Clearly Caballes rather than Kyllo controls in the case of using detection equipment to pick up emissions from nuclear materials banned under 18 USC 831 since, to quote Stevens' majority opinion, such activity "reveals no information other than the location of a substance that no individual has any right to possess." And even if you want to subject this to a balancing test, I think the government would not have to argue very strongly that there is a compelling state interest in keeping nuclear weapons out of the hands of private citizens.

The fact that the MSM would run this story about a TOP SECRET RADIATION DETECTION PROGRAM - (EVEN THOUGH EXPOSING IT MAKES US MORE VULBNERABLE TO A NUKE ATTACK OR A DIRTY BOMB ATTACK BECAUSE IT TIPS OFF THE ENEMY AND ENABLES HIM TO CHANGE TACTICS) - reveals just how insanely angry and afraid of "King George BusHitlerburton" the Left is.

There's only one thing that will stop this spate of traitorous leaks: throw the leakers and those that published the leaks in jail - or execute them for treason. YEAH: I AM SERIOUS! These leakers are endangering millions of lives and trillions of dollars and our economy and our effort in the GWOT. They are traitors and should be tried and executed.

[Extraneus]

I still don't know what the bad guys
learned from today's article that they
couldn't have learned by googling
'data mining'.

Good point. Maybe the new revelations about switches doesn't add much to what we already knew. Data mining is data mining, and the more data it has to sift through, the more effective it is, assuming the computational resources are there to handle it. Any terrorist worried about it would have to assume the worst, so more evidence it's widespread probably doesn't change much now. Those new oh-so-intrusive geiger counters sure might add something they didn't think of, though.

Maybe increasing a terrorist's paranoia isn't necessarily such a bad thing, but can we define "treason" in a way that's agreeable to both political sides? I mean, if the national security apparatus thought it was better to keep this under wraps, then maybe it helps the bad guys to expose it. And if it does, then isn't whoever knowingly helps the bad guys, especially in the commission of a clearly-defined crime, a traitor?

[noah]

Actually for many years Radium could be possessed by private individuals without any sort of license.

[David Walser]

On a somewhat related topic: Weren't the proponents of McCain's "anti-torture amendment" (which would also bar many things that are not considered torture) arguing that it would not harm our ability to gather vital information from a captured terrorist because we could rely on our public servants in the military/CIA to ignore the law if the issue were serious enough? The hypothetical was that we "know" the terrorists have planted a WMD in New York City and that we "know" the captured terrorist knows where to find the WMD. Under that circumstance, our guys will ignore the law relying on the assumption that the administration will not prosecute. Torture, we were told, in such a case would be justified no matter what the law said. Those arguing for McCain's amendment seem to be saying there is an exception to the rule of law for situations where following the law would cost lives. (This begs the question of whether the amendment would prevent us from gathering information about a WMD planted in NYC that we did not "know" about before our polite questioning began.)

In the current case, FISA does not allow for warrants unless a specific group or individual is targeted (and other criteria are met). If the NYT's report is accurate, the court could not have issued warrants allowing the NSA program to continue -- how could a request to "search" all the international calls coming into the US via a certain trunk line be worded so it meets the requirement that a warrant specify the name(s) of the person(s) who are the subject of the search? Since the courts cannot issue warrants, any searches "appear to be illegal" (per Drum).

The response Drum suggests? Don't risk violating the law. Get Congress to pass an amendment to FISA making it clear that the proposed NSA program is legal. The fact the NSA searches have helped us thwart several terrorist plots (and who knows how many lives have been saved as a result) does not seem to enter into the equation. In this real life and death situation, Drum and the Democrats are saying we should endure more terrorist attacks rather than take an action the might be a technical violation of a law (that arguably does not apply to the President). Better safe (from violating a law) than sorry (that you broke the law). Bush's view of that motto: Better safe (from a terrorist attack) than sorry (you did not risk breaking a law your teams of lawyers said did not apply).

With this backdrop, which of our servants in the military/CIA will feel it's safe to rely on not being prosecuted for being a bit more aggressive than usual in questioning a terrorist if the information sought is sufficiently important?

[clarice]

In D.C. and other places, low flying planes also check randomly for bio-chem and radiation emissions...are we to get search warrants for every building they fly overhead?

I'm beginning to think these leaks are sooo diabolical--forcing the lefty law loonies to condemn practices we all think are reasonable and proper to show up how idiotic they are.

Did you notice how credulous the sharp professors who believed and propagated that library hoax were? And just as the Patriot Act was being considered..though , of course, they claim only credulousness, not partisanship, motivated them to pass that lunatic story on to the press..Oh, Dartmouth, how dumb you are!!

[clarice]

Michelle Malkin has a lengthy discussion on this, including a citation of FISA which indicates the process involved isn't defined as "electronic surveillance" within the meaning of FISA.

I do think McCain's amendment, like his fercocked CFR, is a phony bit of stuff--more dangerous to us than CFR--but evocative to me of how he plays for favorable press coverage at the expense of public welfare and common sense.

[SteveMG]

but can we define "treason" in a way that's agreeable to both political sides?

I would hope so but I'm not volunteering to be on the committee to bring the sides together.

Treason is aiding/abetting the enemy and adherence to their cause or ideology. That latter part is crucial.

Only someone not thinking straight could believe that Rove or Libby or Keller or Risen have committed treason.

I've always wondered from the first stirrings of this animosity whether a McCain Administration/Presidency would have lessened day's rhetorical blood lust.

Probably not. Tribalism of politics and all that. Plus, we're all retreating to those sources or sites that reinforce our prejudices against one another.

SMG

[marianna]

Frankly, I don't see the big deal about any of this. Those who have nothing to hide have nothing to fear from surveillance. It makes me wonder, honestly, what some on the left are so worried about.

[SteveMG]

Those who have nothing to hide have nothing to fear from surveillance.

C'mon, please don't come over here to start this nonsense.

This is a good site; well run by TM with some excellent commentators. Sure, some of us (including me) go overboard and in the heat of the moment write things we don't mean.

But don't come over here pretending to be something you're not.

There are legitimate questions from the left (and right and center) about the possibility of abuse of some of this authority.

One of the questions is whether the executive branch has the legal authority to do this (most of us think yes).

The question as to whether there's a danger is a another topic (I think most of us would acknowledge it).

SMG

[Rick Ballard]

What if this is not a coordinated effort between the NYT and the Deaniacs? Take a good look at this graph and consider the possibility that this story sequence is:

A) The final act of the Paunch & Billy Show - forced resignations are in the offing at any rate, why not leave as targets of an investigation that they can characterize as (at minimum) an attempt to "chill discourse". They're gone, the Sulzberger family can begin the search for a family member with an IQ above room temperature and the "flagship", can run a series about "extremism in defense of idiocy" not being a vice.

B)Paunch and Billy had a meeting of small minds and decided that stirring up an investigation might help circulation - I mean, who wouldn't buy the Times in order to see if they committed treason again today? After all, desperate Times require desperate men to commit desperate acts.

I find myself agreeing with r flanagan that this may well be a "Please don't throw me in the briar patch" for the dying Times. I would be satisfied with a DoJ investigation that worked the leaker side quite heavily. Running every CIA and NSA employee with any knowledge of the program through a tough grilling involving a lie detector would be a good start. It is my understanding that employment at either agency involves signing a waiver permitting such examination. Setting rat catchers to work at the leaks origins might have a better effect than putting the Times on its own front page again.

Impeaching Roberts would also be fun - "Clinton Appointee in The Dock for Security Breaches" has a nice ring to it. A slow, methodical inquisition into Robert's background would provide hours of entertainment. Who knows, perhaps a few more of his compatriots would wind up in the snare.

Then there are the Dem staffers....

[Patrick R. Sullivan]

The Dept of Transportation is actually invading the privacy of Americans far more egregiously than the NSA, right now:

http://news.com.com/2010-1071_3-5980979.html

----------quote----------
The U.S. Department of Transportation has been handing millions of dollars to state governments for GPS-tracking pilot projects designed to track vehicles wherever they go. So far, Washington state and Oregon have received fat federal checks to figure out how to levy these "mileage-based road user fees."

....No policy bans police from automatically sending out speeding tickets based on what the GPS data say.

.... these "road user fee" systems are being designed and built in a way that strips drivers of their privacy and invites constant surveillance by police, the FBI and the Department of Homeland Security.

....Details of the tracking systems vary. But the general idea is that a small GPS device, which knows its location by receiving satellite signals, is placed inside the vehicle.

Some GPS trackers constantly communicate their location back to the state DMV, while others record the location information for later retrieval. (In the Oregon pilot project, it's beamed out wirelessly when the driver pulls into a gas station.)

The problem, though, is that no privacy protections exist. No restrictions prevent police from continually monitoring, without a court order, the whereabouts of every vehicle on the road.

No rule prohibits that massive database of GPS trails from being subpoenaed by curious divorce attorneys, or handed to insurance companies that might raise rates for someone who spent too much time at a neighborhood bar. No policy bans police from automatically sending out speeding tickets based on what the GPS data say.

The Fourth Amendment provides no protection. The U.S. Supreme Court said in two cases, U.S. v. Knotts and U.S. v. Karo, that Americans have no reasonable expectation of privacy when they're driving on a public street.

The PR offensive
Even more shocking are additional ideas that bureaucrats are hatching. A report prepared by a Transportation Department-funded program in Washington state says the GPS bugs must be made "tamper proof" and the vehicle should be disabled if the bugs are disconnected.

"This can be achieved by building in connections to the vehicle ignition circuit so that failure to receive a moving GPS signal after some default period of vehicle operation indicates attempts to defeat the GPS antenna," the report says.
---------endquote---------

[owl]

"Expand Fitzgerald's scope? Name another prosecutor and wait for him/her to get organized?"

I vote NO because Fitz finished me on SPs. This was the 'Spy Leak by Administration'. It wasn't, even if half the WH lied and were all indicted and sentenced, it does not matter. The MSM sold a false bill of goods and a SP allowed them 2 years to sell it on every media outlet. He might be the most honest SP ever put on planet earth, but to tell his witnesses' story the way he told it, showed he was clueless.

So why would I think another SP could handle this MSM? I only hope the President is truly 'ticked off'. Get mad...get really mad.

[Rider]

editorial from that old Communist rag, Barron's

Impeachment

AS THE YEAR WAS DRAWING TO A CLOSE, we picked up our New York Times and learned that the Bush administration has been fighting terrorism by intercepting communications in America without warrants. It was worrisome on its face, but in justifying their actions, officials have made a bad situation much worse: Administration lawyers and the president himself have tortured the Constitution and extracted a suspension of the separation of powers.

Surely the "strict constructionists" on the Supreme Court and the federal judiciary eventually will point out what a stretch this is. The most important presidential responsibility under Article II is that he must "take care that the laws be faithfully executed." That includes following the requirements of laws that limit executive power. There's not much fidelity in an executive who debates and lobbies Congress to shape a law to his liking and then goes beyond its writ.

Willful disregard of a law is potentially an impeachable offense. It is at least as impeachable as having a sexual escapade under the Oval Office desk and lying about it later. The members of the House Judiciary Committee who staged the impeachment of President Clinton ought to be as outraged at this situation. They ought to investigate it, consider it carefully and report either a bill that would change the wiretap laws to suit the president or a bill of impeachment.

It is important to be clear that an impeachment case, if it comes to that, would not be about wiretapping, or about a possible Constitutional right not to be wiretapped. It would be about the power of Congress to set wiretapping rules by law, and it is about the obligation of the president to follow the rules in the Acts that he and his predecessors signed into law.

Some ancillary responsibility, however, must be attached to those members of the House and Senate who were informed, inadequately, about the wiretapping and did nothing to regulate it. Sen. John D. Rockefeller IV, Democrat of West Virginia, told Vice President Dick Cheney in 2003 that he was "unable to fully evaluate, much less endorse these activities." But the senator was so respectful of the administration's injunction of secrecy that he wrote it out in longhand rather than give it to someone to type. Only last week, after the cat was out of the bag, did he do what he should have done in 2003 -- make his misgivings public and demand more information.

Published reports quote sources saying that 14 members of Congress were notified of the wiretapping. If some had misgivings, apparently they were scared of being called names, as the president did last week when he said: "It was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy."

Wrong. If we don't discuss the program and the lack of authority for it, we are meeting the enemy -- in the mirror.

...

No president has "inherent authority" to violate the law.

[M.A.]

I only ask as a concerned citizen; as a vicious partisan, I think the NY Times, in combination with the Moore-Streisand wing of the party, is pushing the Dems off a cliff.

So what? Conservatives seem unduly obsessed with the future of the Democratic party, and with encouraging the Democratic party to drop the concerns of liberals. They'd better not.

Look, for a substantial chunk of the population -- and not just extremist lefties -- the most important issue of our time is the way the Bush administration has exploited 9/11 to: invade a country that had nothing to do with 9/11; ignore laws they don't find convenient; encourage paranoia; portray any disagreement with their policies as defeatism and weakness. If Democrats completely ignored the people who want to focus on these issues (they're practically doing it already), they would be betraying millions upon millions of Americans who oppose Bush's policies and need someone in government to represent them.

Maybe the Democrats would win a few more elections if they abandoned the anti-war types entirely. But a government where everyone is pro-war, in a country that is pretty evenly split between pro-war and anti-war, would be far worse than what we have now. The Democrats can do more good as a minority party doing the right thing than a majority party aligned with the paranoid fear-mongering of the Right. No matter how much right-wingers scream that the liberal position on Iraq and civil liberties and such is "extremist," it isn't. It's a mainstream position -- perhaps not the majority position, but still hugely important. It needs someone out there representing it, not for political gain but because it's the right thing to do.

And on a related note, if the Democrats who were briefed did not object (and there's still a question as to how much they were told about this program or who raised objections and when), then they were wrong and complicit in lawbreaking. The fact that Jay Rockefeller is a pusillanimous pussy doesn't make Bush and Cheney any less guilty.

[marianna]

SMG, I think you misunderstoof my comments, or, maybe more likely, I wrote it in a way that made it susceptible to misreading. What I'm trying to say is that there have been no documented cases of any sort of wrongful prosecutions realted to this practice. On the other hand, we do know that this foiled an attack on the Brooklyn Bridge. If we start hearing about real abuses here, then let's have a debate. Until then, let's just be grateful that the White House is doing what it can to keep us safe.

I guess I'll have to lay off the snark about the left if I don't want to sound like a nut. Of course, no one seriously suggests that the Democrats are hiding illegal. activity,

[SteveMG]

think you misunderstoof my comments, or, maybe more likely, I wrote it in a way that made it susceptible to misreading

Sorry if I jumped too quickly. It's the second time I've done that this week. I need to mind my own business.

There's been attempts by lefty posters to visit conservative sites and pretend to sympathize with them. They'll make over the top comments in an attempt to embarass the blog.

I was thinking you were one.

Sorry again. Please don't let me prevent you from saying what you wish.

SMG

[boris]

The NSA program is not in violation of FISA.

If the NSA surveillance program tracks all international communications (or all international communications to al Qaeda hotspots such as Afghanistan), it does not target specific individuals as required by 1801(f)(1). If the communications are intercepted outside the U.S., the NSA program falls outside the definitions in 1801(f)(2) and 1801(f)(4). If the program excludes intentional capture of purely domestic communications, it falls outside the ambit of 1801(f)(3).

Bottom line: a massive surveillance system that intercepts millions or billions of international calls and e-mails may not constitute electronic survellance as defined by FISA, provided that the interception occurs outside the United States and neither specific individuals nor purely domestic calls are targeted.

Furthermore the AUMF was response to 911. The implied will of Congress therefore augments ArtII executive power wrt another 911 attack from inside the country. Hence executive power is actually highest ebb. Daschle’s partisanship notwithstanding.

Lefty scolds should bone up on the current state of debate on the issue before venting reams of discredited drek at on of the few websites where reasonable discussion otherwise occurrs.

[Rider]

boris - the surveillance of ALL USPERS includes each and every particular USPERS represented in that data stream.

Note that this means surveillance of countless USPERS without "known links to Al Qaeda" contrary to what the President had claimed.

The President violated the law he is sworn to execute. He has no "inherent authority" to violate the law. Mind you, the laws he violated include both FISA and the Patriot Act!

FISA and the Patriot Act which amended it were put in place expressly for the purpose of protecting the U.S. from terrorist attack. They were designed to provide a legal means of obtaining federal warrants to conduct surveillance of USPERS for counterterrorism intelligence. That's the purpose of the law Bush violated.

The law even provides for retroactive federal warrants if applied for within 72 hours of emergency wiretaps. That's the same FISA and Patriot Act law Bush violated.

The authority granted under JAUMF in Afghanistan ended with the cessation of active combat in Afghanistan according to the U.S. Supreme Court in 2003 (Hamdi v. Rumsfeld). Even under the ludicrous argument that Congress intended the authority for warrantless domestic surveillance of U.S. citizens in that resolution, all authority pursuant to that resolution has expired according to the Supreme Court (see, Section II Plurality Opinion).

[Syl]

Rider

the surveillance of ALL USPERS includes each and every particular USPERS represented in that data stream.

I think your basic assumption is false. They are not particular USPERS unless they are identified. And no warrant can be issued unless they are. And if they are specifically identified, a warrant is requested but by a different agency for further surveillance.

Just because you don't like it, does not make it illegal. In fact it is neither legal nor illegal.

[clarice]

In fact , it seems to me a new tchnology and an outdated law not suited to and not covering this new method.

[TP]

Gee. If this is the first shot in the silly season and the Democratic Party plans to run an off-year, national campaign without having a position on Iraq, it looks like they are gearing up to run against Bush (maybe on an impeach Bush and Cheney platform). Hmmm. President Pelosi?

[boris]

the surveillance of ALL USPERS

ALL were not surveiled. That's nonsense. Datamining datastreams outside the country do not constitute surveilance of US persons under FISA unless they are the specific target, named and identified.

[kim]

Anybody trying to argue that judicial and legislative oversight has been inadequate to prevent abuse? If not, then go soak your head; there are important issues to deal with. Like for instance this disorderly discussion of the balance between privacy and civil order.
===============================================

[kim]

C, when you have new technology(that picked out Atta, by the way) and an outdated law, and evidence that applying the technology as carefully as possible has prevented further attacks, then you could argue for Bush NOT to have acted as he did would have been derelict in his duty. Possibly a little ironic conflict in duties there. One of the cases where buck terminals are indispensable.

Who's derelict is the lawmakers and inadequate laws. Speaking of dispensable, Jay has lost his ancestor's ability to stop bucks.
===============================================

[Rider]

Datamining datastreams outside the country do not constitute surveilance of US persons under FISA unless they are the specific target, named and identified.

Ha ha ha! Tell that to the judge...Judge Kollar-Kotelly. I sure wouldn't want to stand in front of her with that brief! (Some lucky soul from the Justice Dept. will get the opportunity to 'splain what they've been doing and why this does not violate FISA in a few weeks). Note that she has already expressed deep concern that information obtained from illegal wiretaps may have been used to show probable cause in warrant applications, thus tainting a whole buttload of evidence already gathered.

Datamining surveillance has already been shot down. This is violation of FISA (and the Patriot Act) on a massive, massive scale.

The point is that once you have datamined a zillion conversations per hour and have a list of hits, there is no way to weed out "those USPERS with links to Al Qaeda" from those who are not except by monitoring the actual communications, at which point you are intentionally targeting specific individuals, the majority of which will turn out to be USPERS with no "links to Al Qaeda." At that point, you are without question in violation of the law.

Surely you don't think the decisions about who to target intentionally for wiretapping are entirely made by the software automatically? Think how many usable hits you get each time you use Google or even Spell Check.

No president has "inherent authority" to violate the law. The president's job is to execute the laws; not break them when it suits him.

[SteveMG]

Rider:
The authority granted under JAUMF in Afghanistan ended with the cessation of active combat in Afghanistan according to the U.S. Supreme Court in 2003 (Hamdi v. Rumsfeld).

Sorry, that's not true.

The Court ruled (O'Connor's majority opinion) that the right of the government to hold enemy combatants (e.g., Hamdi) captured in Afghanistan ended when effective combat operations had stopped in Afghanistan.

They most definitely did not say that once operations in Afghanistan ceased that the AUMF was no longer operative.

The AUMF was not limited to operations in Afghanistan. It says:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

SMG

[kim]

So we are not to use datamining to stop suicide terrorists? Is that what you are saying? Is that what Jay Rockefeller means by writing his pitiful, duplicitous, self-serving, longhand note to posterity? Is this the action of a senior legislator afraid to oppose and afraid to support? Just what do you propose? This is a brave new world, and datamining is not going away.
==============

[Syl]

Note that she has already expressed deep concern that information obtained from illegal wiretaps may have been used to show probable cause in warrant applications, thus tainting a whole buttload of evidence already gathered.

It has to be shown that the "wiretaps" are, indeed, illegal. Actually it would have to be shown that this fits the definition of wiretap in the first place since individuals were not targeted.

[boris]

SMG, Rider is not making coherent arguments and there is a rather familiar style to the posts.

[Syl]

Yes, boris, SMG just shot his entire argument to hell and back.

That FISA judge, Robertson, is going to jail.

[Rick Ballard]

Syl,

I think he has to be impeached first. I'm not a stickler on it though. If he can be jailed and then impeached it works for me.

Boris,

Long, boring, incoherent and based upon a false premise - yep, that's our boy.

[Rider]

AG Gonzalez has argued that Congressional authorization was granted by the JAUMF in Afghanistan to the President to conduct warrantless wiretaps against USPERS. He has appealed to the Supreme Court Hamzi case, claiming the power to surveil U.S. citizens is no different than the power to detain U.S. citizens who are "illegal enemy combatants," which authority the Court did recognize in Hamzi The problem is that the Court also said that authority was limited, that the detention required judicial oversight (due process of law), and that it was not "indefinite or perpetual" but lasted only as long as active combat in Afghanistan:

The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who engaged in an armed conflict against the United States.

By implication, any (supposed) powers of surveillance also last only for the duration of hostilities, which they went on in the same paragraph to define as "active combat."

The President was authorized to use military force in Afghanistan in order to prevent, etc., etc. The Court does not interpret that as meaning he was authorized to keep using military force as long as he wanted wherever he wanted. (Did you notice that he had to get a new JAUMF when he wanted to attack Iraq?) No, the JAUMF was for Aghanistan. The War in Afghanistan is has been over for about three years now. In fact, Bush was starting the secret NSA domestic spying program right about the time that war ended!

The problem is not just that he has broken the law wilfully, but that he now defiantly insists that he is going to continue to do so. (= "Just try and stop me!") This has created a constitutional crisis, because he evidently does not believe in separation of powers. So, I guess someone is going to have to stop him. If that means an impeachment inquiry, so be it. Until he is stopped, the U.S. Constitution and your freedoms are not same, my fine red-state fascists.

[Davebo]

Wow, if only we had a branch of government that specialized in hashing out those pesky "legal grey areas".

Oh wait, we do. And it ain't the Justice Dept.

Then again, if the dozen or so who were informed of it didn't get their panties in a wad it must be legal right?

And the real zinger??

One supposed advantage of a representative democracy is that various factions, representing competing institutional interests (Executive versus Legislative) or party interests (Republicans versus Democrats) can resolve some issues IN SECRET! This particular NSA program appears to be well suited to such a quiet conversation. And one might have thought, after four years of briefings, that the quiet conversation was underway - Hoekstra apparently was fooled.

Cleverly left out that third branch of government. The one that should have decided the "legal grey area" but was never given the opportunity.

Well, we'll be clearing up that legal grey area in the coming weeks (and it won't be congress clearing it up, they have absolutely nothing to do with this matter).

If the courts rule this violated FISA, the fourth ammendment, or any other federal law then congress can choose whether it wants to get involved.

[Syl]

So al Qaeda took back its declaration of war on us after we toppled the Taliban?

Keep hope alive!

And how are the courts going to rule this violated FISA? What is the specific case before them regarding this matter?

Keep hope alive!

[David Walser]

Rider - "The point is that once you have datamined a zillion conversations per hour and have a list of hits, there is no way to weed out "those USPERS with links to Al Qaeda" from those who are not except by monitoring the actual communications, at which point you are intentionally targeting specific individuals, the majority of which will turn out to be USPERS with no "links to Al Qaeda." At that point, you are without question in violation of the law."

Is it your position that rather than risk inappropriately listening in on a call of a US person, we should not listen in on ANY calls? Knowing that your suggested approach would fail to do anything to identify terrorist plots before they can be put into action (and knowing we have used this program to prevent several plots, saving countless lives), you still insist that we should not do what we are doing?

Just how far does this "better safe than sorry" approach of yours extend? Aldrich Aimes, a US citizen, had his house searched without a warrant. Was that okay? If not, why not? If it was okay, why can't the same be said of these warrantless searches?

Oh, and I disagree with your legal analysis. Unless we know who is on the line I don't think we can be said to be intentionally targeting specific individuals. We are listening in to, in part, identify who they are. It's not until such identification is made can it be said that FUTURE surveillance specifically directed at that person could be said to be targeting specific US individuals.

[Les Nessman]

"I don't see how today's article adds
to the information already available to the
terrorists.
Posted by: r flanagan | December 24, 2005 at 05:31 AM"

So I guess you aren't too upset with the Plame 'scandal' then, too?

Funny how the Lefties go ga-ga for 2 years over a trumped-up fabrication that doesn't affect national security, but when real leaks that harm national security are published with reckless abandon, they look the other way.

[SteveMG]

Rider:
By implication, any (supposed) powers of surveillance also last only for the duration of hostilities, which they went on in the same paragraph to define as "active combat."

By implication?

Sorry, that's just reaching way beyond any reasonable reading of the statute authorizing force. In fact, not one single Democrat has argued that the AUMF is no longer valid.

O'Connor (in Hamdi) was specifically talking about detention of Afghanistan combatants captured there and how long the government can hold them in Afghanistan.

The fact that effective combat operations in Afghanistan are over does not negate the AUMF which allows force to be used employed against:

"Those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorists attacks."

In no conceivable reading does this limit the use of force to Afghanistan. If they had intended the authorization to be limited to Afghanistan, the law would have said so.

Do you seriously believe that by attacking al-Qaeda camps or cells located in Pakistan, that the President is violating the AUMF?

You're on more solid ground arguing that FISA had been violated and the the inherent powers did not extend to this type of surveillance.

SMG

[clarice]

Very good, Les..As to Rider's argument, I suppose anytime a judge comments on the specifics of the case before him, he's saying the Statute before him has no applicable elsewhere..Neat way to keep opinions shorter.

[Syl]

I don't see how today's article adds
to the information already available to the
terrorists.

Yeah, Les, some folks, including the NYTimes, think they have the knowledge and expertise to decide what should and should not be classified. And we never even elected them.

They've usurped the power of life and death over us and thus have crossed the line.

[Rider]

Is it your position that rather than risk inappropriately listening in on a call of a US person, we should not listen in on ANY calls?

It is my position that the President should keep us safe from terrorists such as Al Qaeda by conducting electronic surveillance for foreign intelligence puposes against USPERS by following the 1978 FISA law and the Patriot Act, both of which were made into law for that specific purpose, i.e. by obtaining FISA warrants, either beforehand or retroactively within 72 hours.

Why do I want the President to follow the law? Because without separation of powers, we are living under a totalitarian regime. This tendency toward fascist police states seems to be a hallmark of Republican administrations. It's in your ideological genes. We went through all this under Nixon. His egregious abuses of freedoms (he wiretapped Dr. Martin Luther King, it may be remembered) were what occasioned the passing of the 1978 FISA law. And now we have it back in spades under Bush.

I don't understand why the President cannot be expected to follow the laws, laws that were written by Congress in order to enable him to conduct counterterrorism. The law set up a secret court which meets in soundproof chambers before federal judges who have top secret security clearances. All the government has to do is show evidence to the judges that the USPERS they want to surveil have suspected links to international terorists. The court has refused only four requests in twenty five years. How hard is that?

[Neuro-conservative]

Hey Rider --

How exactly did Nixon wiretap MLK, Jr, who was assassinated 9 months prior to Nixon taking office? Was it when he ordered Kerry to cross the border into Cambodia?

It's OK for everybody to have a fantasy life, but it is somewhat impolite to share all of your fantasies in public.

[SteveMG]

Rider:
Nixon's egregious abuses of freedoms (he wiretapped Dr. Martin Luther King, it may be remembered)

JFK and LBJ wiretapped King.

King was assassinated on April 4, 1968. Nixon didn't become President until January of 1969.

Look, you hate Republicans. We hate al-Qaeda.

You want to defeat the Republicans more than you want to defeat the terrorists. We want to defeat the terrorists more than we want to defeat Democrats.

That conflicting perspective leads us to take different paths.

SMG

[Syl]

Rider

You're simply hysterical and NOT paying attention. FISA has exceptions. One of which is by statute and that's where the AUMF comes in. That's why you're so adamant that the AUMF is inapplicable. Well, you're wrong there as SMG has pointed out.

Now, tell me, honestly, what HARM has been done to your civil rights? EXACTLY. Not slippery slope crap or totalitarian fear-mongering. What HARM has been done to you?

If you were to file a case against the government today, what would you use as PROOF that you have been specifically harmed?

The courts cannot rule on this issue unless there is a case before them. What would your case consist of?

[BurkettHead]

The US Supreme Court does not issue advisory opinions. It will not rule on the legal issues presented here until an actual controversy is presented.

At this point we don't know enough of the details to determine that a vilation of FISA exists. Most of the preliminary opinions by legal scholars were that W does have Constitutional authority to authoize the program and, insofar as FISA may contravene his Constitutional authority, FISA may be unconstitutional.

To determine that W "broke the law" you have to resolve the legal questions against him and assume that the program worked in ways that constitute violations of FISA. There have not been enough details of the program released at this time to show that. It's very possible that, even if all of the legal questions were to be resolved against W (the consensus of scholars seems to be that they would not be, as his arguments are stronger than the opposing arguments), there would not be a violation of FISA. It depends on how you assume the program works.

I don't see how the Constitutional questions will be resolved any time soon. What is the controversy before the judicial system? Typically, these questions arise on a Motion to Supress evidence derived from the search in a criminal case. Here, it appears that the evidence has been used to prevent criminal conduct (e.g., increased security at the Brooklyn Bridge), rather than as eveidence to suppport a criminal indictment.

Are the Democrats going to bring articles of impeachment based on this program to generate a controversy & put the legal questions before a court (whether W raises those issues in his defense after he's impeached or the Democrats raise them to "prove" W violated FISA)? Do they think that someone is going to arrest W for violations of FISA (and that Ronnie Earl will prosecute)? Or has someone been indicted on the basis of this program who will bring a Motion to Suppress? Even if the FISA court determines that some of the warrants were improperly granted, they won't reach the questions about whether W violated FISA and whether those provisions of FISA are therefor unconstitutional.

Not that I need to post these links here, but:

http://uchicagolaw.typepad.com/faculty/2005/12/presidential_wi_1.html

http://volokh.com/archives/archive_2005_12_18-2005_12_24.shtml#1135029722

http://www.harvardlawreview.org/issues/119/Dec05/Kerr.pdf

http://volokh.com/archives/archive_2005_12_18-2005_12_24.shtml#1135189430

http://hughhewitt.com/archives/2005/12/18-week/index.php#a000866

http://uchicagolaw.typepad.com/faculty/2005/12/presidential_wi.html

I don't have the link to the transcript of the discussion between Hugh Hewitt & Cass Sunstein, but it's probably in one of these threads somewhere.

[boris]

FISA does not apply to surveilance outside the US, unless individuls in the US are specificly targeted.

Intercepting, outside the US, a call targeting OBL from him to M.Atta in Florida does not violate FISA.

Surveiling, outside the US, some large fraction of international communication and filtering for known terrorist connections, outside the US, does not violate FISA, regardless of who, where, or what the other parties are.

[Rider]

Hamdi was held in a Navy brig in S.C.; not in Afghanistan. Like it or not, the Court found he could not be held beyond the duration of the war without due process of law, i.e., not indefinitely or perpetually for interrogation, not without charges being filed in court.

I am not making an issue of the space covered (the resolution says "nations," but of the duration in time. This resolution was purely for the use of military force in the Afghan conflict. It was not a perpetual authorization to continue till the end of time. Get serious. It had an eye to the future, to prevent further attacks. But the intent was to attack the Taliban and snuff out Al Qaeda.

If it was not, why do you think the President had to get another Joint Authorization for the Use of Military Force when it came to Iraq? Wasn't the one from Afghanistan still in effect?

The War Powers Act in fact requires the President when granted authorization for the use of military force to report to the House and Senate and among other things to tell them "the estimated scope and duration of the hostilities or involvement." It's not open-ended! This was not the legal authorization to conduct the war on terror, which is a "war" only in the metaphorical sense (like the war on drugs, or war on poverty), however deadly the stakes.

[Syl]

Now let's take these two quotes from different comments and juxtapose them:

Note that she has already expressed deep concern that information obtained from illegal wiretaps may have been used to show probable cause in warrant applications, thus tainting a whole buttload of evidence already gathered.

and

I don't see how today's article adds to the information already available to the terrorists.

It's not ONLY what information is available to terrorists, you nitwits, it's how WE can effectively function against them.

If the first quote's thinking leads to the release of the terrorist planning to take down NY bridges, then can you still claim that national security has not been harmed by reveailing this program?

As I said, the NYTimes has usurped for itself the power of life and death over us by printing this information against the wishes of our elected government.

As far as I and the majority of Americans are concerned, they can go to hell.

[Neuro-conservative]

Here is the link for Hewitt/Sunstein.

[BurkettHead]

It's not clear that the War Powers Act is constitutional.

[Syl]

Rider

Answer my question, please.

[SteveMG]

Rider:
This resolution was purely for the use of military force in the Afghan conflict.

But it doesn't say that. It says

Nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001

If the intent was to limit it to Afghanistan, why doesn't it say Afghanistan?

Furthermore, the president gets to make the determination.

On Iraq: Since Iraq was not involved in the 9/11 attacks, the president needed additional authority.

On Hamdi. O'Connor ruled that we couldn't hold him (in Afghanistan or here or anywhere) as an enemy combatant if combat operations in Afghanistan ended.

Really, you're reaching beyond any reasonable standards here on this part.

If you stick with FISA, you may make some ground.

Look, a lot of people who support the president's right to order this surveillance don't do so without some (or even great) reluctance.

SMG

[BurkettHead]

That should be the War Powers Resolution, some of which has already been held unconstitutional, see INS v. CHADHA, 462 U.S. 919 (1983). http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=462&page=919.

[Rider]

You are right about Dr. Martin Luther King. And illegal wiretapping took place under Kennedy, LBJ, and Nixon, I'm sorry to say.

Syl - I'll refer you to the Barron's editorial I posted for the answer to your questions:

It is important to be clear that an impeachment case, if it comes to that, would not be about wiretapping, or about a possible Constitutional right not to be wiretapped. It would be about the power of Congress to set wiretapping rules by law, and it is about the obligation of the president to follow the rules in the Acts that he and his predecessors signed into law.

This is not about protecting us from terrorists. FISA was written to give the President all the tools he needed for conducting counterterrorism intelligence operations against USPERS. The federal judges who sit on the FISA court certainly believe that they are on the front lines in the war against international terrorism.

This is about the President breaking the law. He is sworn to uphold and to execute the law. It appears that he broke the law and intends to keep doing so. So, it must be investigated. Both the federal judiciary and Congress have oversight of the FISA law.
The chips will fall where they may. But it can't be allowed to go away. Bush has brought about a constitutional crisis.

[Rider]

Yes, War Powers Resolution. It is referenced in the JAUMF:

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Bush claims the right to pick and choose the laws he will obey, so there's no point in debating the constitutionality of the War Powers Resolution or any other, for that matter.

[BurkettHead]

The "debate" about the constitutionality of the War Powers Resolution has been going on for decades.