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January 06, 2006



That billet foux Rocky wrote confessed his idiocy or his knavishness, or, more likely, both.


I love Capt Ed. For one thing you can count on his factual presentations. He is meticulous. For another he is fair and he writes clearly.

This remark of his today is not only accurate but a short and vivid description of what is going on:"Like so much of what the Democrats say on national security, they want to complain about the sausage-making process while gorging on the bratwurst that results."

It's so good someone should make it into a needlepoint pillow.

Anonymous Liberal

I tend to agree with you regarding Congressional Democrats. They were all incredibly intimidated by Bush back in 2002 and I doubt they would have significantly challenged the NSA program even if they could have.

But here's my question, and I honestly have no idea what the answer is: What means did Pelosi and Rockfeller have available to them? Other than writing letters, what could they have done legally to object to the program when they first learned about it? As you point out, they could have done what Harry Reid did a few months ago and called a secret session. But could they have disclosed what they learned in the briefing to the entire Senate or House, even in a closed session? Would that violate the law? I'm guessing it would, but I don't know.

Other than that, did they have any other options? I suppose they could have gone public, but that would certainly have been illegal.

I guess what I'm saying is this: your critique of Congressional Dems would be aided significantly if you could lay out what other legal avenues of protest were available to them.

And, in terms of the bigger picture, it's worth noting that just because certain Democrats are politically cowardly, doesn't mean Bush's actions are or were legally justifiable.

Cecil Turner

Dang, TM, you are on a serious roll. So much so that I hate to carp about typos, but they probably ought to be fixed, so . . . Above: "Boldly Prdeict"; "not aksing for much; "anticipate a sytem"; "Bob Grahm"; "Congressman. You've also got "usefual" and "blogggers" on the LATimes thread, if you care.


Well, I hate to say it but it is HarmAn, not HarmOn..Welcome to the wide wonderful world of fat fingered typing.

Cecil Turner

But could they have disclosed what they learned in the briefing to the entire Senate or House, even in a closed session? Would that violate the law? I'm guessing it would, but I don't know.

The way I read the Constitution, they have an absolute immunity for bringing things up for debate:

"for any Speech or Debate in either House, they shall not be questioned in any other Place."
And I hope we're not seriously going to suggest that whistleblowers to the New York Times ought to be forgiven for leaking something, but Congressmen can't debate the same issue in closed session. Are we?


Is the NYT so desperate to sell newspapers that they need to resort to false headlines to sell one. What a senator said in some quarters carries more weight than a representative{ though msm has given Murtha more than his alloted 15 minutes.} Please NYT, keep the hype and the falsehoods to a minimum if you please.

r flanagan

1." We need two parties and Congressman who take their jobs seriously."


2."The founding fathers may have failed to anticipate a sytem where Democrats charged with oversight quietly decide that the number of follow-up question which they may ask is an inverse function of the President's approval rating ."


Which is it?

Anonymous Liberal

Thanks for the link. That's interesting. I'm not sure it's dispositive of the issue, though. If you take that passage of the Constitution to mean that members of Congress have an absolute privilege regarding anything they say on the House or Senate floor, then presumably it would be legal for Pelosi and Rockfeller to reveal any and all classified information they're privy to in open session as well, on C-Span.

That can't be right, can it? And what's the point of limiting such briefings to only a few select members of the House and Senate if they are then free to share that information with everyone else in closed session?


C, the pillow should have a nice cross stitching of Butcher Daley making sausage.

and, of course, holding his thumb on the scales selling it.


Anon Lib

I believe Senator Pat Roberts listed in a press release a few things that Rockefeller could have done if we was so concerned about the program. First and foremost, he could have discussed his concernes with the leader of the Senate Intelligence committee, which according to Roberts, he did not do.

You know it, I know it, everyone knows it. These "concerned" Senate democrats who were in the know went along lock, stock and barrell becuase they thought it was the right thing to do. All of this nonsense about grave constitutional concern is pure poltical theater to appease the Kos kids and raise a few bucks from the tinfoilers.


My Spell Check collapsed,as did my time management, but I am battling back.

As to Anon Lib's question -

Pretty clearly, at a minimum the Gang of Eight could have squawked that the full committees needed to be briefed, as Ms. Harman finally notes in her letter.

That sort of thing becomes a two branch tussle the courts would prefer to avoid - any Chairman with backbone (incl. Graham) would just stall funding, appointments, confirmations, etc until they got their way.

Now, if the full committee thought the law was being violated, I am not sure of the specific steps - presumably, closed hearings where DoJ official are grilled until folks like the answers.

But none of it happens unless Congress asserts itself - it would be a rare Exec Branch official who said, hmm, this is a gray area but I want to proceed, let me ask Congress for permission.

Final thought - my argument is partly reduction ad absurdum, weakend by the problem that the absurd conclusion is not so absurd - EITHER the Dems are spineless wimps, or the program just didn't bother them until they saw a political opportunity.

So their seeming acquiescence *might* be evidence that the program is not illegal (or certainly, gray).

Or it might be evidence that they are useless wimps (or Useful Idiots).

Tough call.



Which is it?

Well, Bernie Sanders gets re-elected, I think; so does Barney Frank, or ted Kennedy, or Pelosi, or plenty of safe-seat Dems.

And on this specific issue, I really don't think a responsible Congressmen loses his seat for asking questions - if Bush was notifying the head of the FISA court and briefing Congress, he was not exactly in cover-up mode.

I would guess that is Congress had said, look, let's work out some appropriate legislation", soemthing could have been done. Stick it in the back of some omnibus bill, blow it through, no worries.

Or, if the program really is that offensive, try to shut it down. But most folks seem to object to the form (skipping the judges) and not the content (tapping al Qaeda). So figuring out what in the current law was a problem that needed to be fixed should have been doable, if Congress ahd been inclined to try.

My guess - they figured, hey, not my problem, and if it blows up I'll just act all horrified. That irks me from both parties - Roberts, Hoekstra and Goss should have gotten blood oaths from their Dem counterparts that they were on board, with no whining later.

Oh, well - I remain convinced that sorting this out on the front pages of the Times is a poor alternative to effective representastive government.

The Unbeliever

r flanagan, the "effective opposition" TM is looking for should be able to effectively raise serious issues even in the face of temporary unpopularity. If they were truly worthy of their constituents' votes, they would be able to bring a coherent objection against the policies of the party in power, rather than just rail on about the story of the day until the polls punish them for it. They should actively encourage a vigorous national debate, and present their best case in that discussion.

In short, they should do everything different from what the current Democractic party is doing.

C, the pillow should have a nice cross stitching of Butcher Daley making sausage.
Well the Daley family is quite famously from the Back of the Yards neighborhood, so it does seem appropriate!

cathy :-)


AL, It's my recollection that not so long ago the Dems were able to force the entire Senate into secret session with a couple of votes on something completely fraudulent. Certainly, they could have employed the same tactic to force a debate on something of high impoer to them.

Ed Morrisey is right--they are bitching about the sausage making process while stuffing themselves with bratwurst.


AL the point of limiting briefings is to limit the possibility of leaks. That doesn't mean that those who get the secret briefings cannot call a secret session of the entire chamber. Obviously, the process should be reserved for critical questions of major import. Since they never attempted this, I'm laughing at the bratwurst dangling from their mouths.

Cecil Turner


Or perhaps it could change its positions to something a bit more popular? And I happen to be of the opinion that the Democrats sticking to their convictions (i.e., showing a little backbone) would make them more electable, not less. The same could be said of the Republicans, particularly when it comes to fiscal issues.

And what's the point of limiting such briefings to only a few select members of the House and Senate if they are then free to share that information with everyone else in closed session?

Well, I'm not sure "free" is a correct term. At the least, the Congressman who brings it up will have to answer for it there, and if the members deem it inappropriate, they could censure or strip the offender of membership in the subject committee. But I doubt the one who disclosed a truly outrageous breach would face any significant consequences . . . and protestations to the contrary are unpersuasive. The more logical explanation is that their outrage was recently discovered.


CT, yes, recently discovered, and Rocky's little note just accentuates the political cynicism driving this year's model off the cliff.

Gabriel Sutherland
But here's my question, and I honestly have no idea what the answer is: What means did Pelosi and Rockfeller have available to them? Other than writing letters, what could they have done legally to object to the program when they first learned about it?
The Democrats were in control of the Senate up until Jan 2003. Chairman Graham could have called the SSCI to a hearing and requested the executive branch dispatch personnel to answer questions from the full committee.

The reason why the Democrats may have snoozed on the issue was due to the fact that they were in control of the Senate with an assist from jumping Jeffords. It certainly would not have been a politically wise move to call a hearing to object to spying on Al Qaida during this time period. In fact, the Democrats were lining up to get behind programs they could champion at the polls as examples of their stance on National Security.

Anonymous Liberal

Tom, I think you put your finger on the problem. The Democratic response to the NSA program can be explained by either 1) their lack of political courage, or 2) that this really isn't a big deal. The stronger you argue # 1, the less convincing #2 becomes.

Remember that right after 9/11, Bush's popularity was upwards of 90%. And in the 2002 elections, Republicans were able to gain seats by painting Democrats as being weak on security because they opposed some of the labor-related clauses in the Homeland Security Act (remember Max Cleland?). So Democrats had good reason to be scared that any objections they raised to anything remotely related to the war on terror could be twisted to damage them politically. I'm not saying this justifies their lack of opposition, but it does explain it.

In light of that, the argument that "if this NSA thing was really questionable, Dems would have made a ruckus earlier" is pretty weak. The questions being raised about that program, though inexcusably late, are serious and substantial, and they have little to do with the spying itself. It's the rule of law issue that is the most troubling. I'm pretty sure that if you interviewed every major constitutional law professor in the country, they would all say that the legal justification being invoked by the Bush administration to justify the NSA spying program is questionable. A few might ultimately agree with the administration's position, but they would quickly concede that it's a difficult question.

I think it would behoove conservatives to start taking these questions seriously, regardless of what you think about some of the people raising them. Many Democratic politicians may be cowardly, shrill, and opportunistic, but in this case, their concerns are important and legitimate and should have been raised a long time ago.

The legal theories on which the administration is relying are novel and extreme, and it's not just Democrats who are troubled by them. So, as hard as it is to do, let's try to remove the issue from it's political context and try to examine the merits of the legal issue itself.


AL a party without central principles to guide it--a party which pegs its votes solely on how the wind is blowing --deserves to get blown flat on its ass. And to my mind that's where the Dems are now on this issue.


Well said, AL. What would you have done instead?

And how do we now remove it from its political context?


Isn't there a woman judge, now in charge of a law school, who is considered a major constitutional law authority, that has already said from her review of the laws Bush was well within his constitutional authority? I wish I could remember her name - from what I remember she was quite liberal on the bench....


As discussed in the last few days there are
responsible liberals and conservatives
switching sides on the NSA , CIC issue
epitomized by the Sunstein / Levy discussion
which I recommended last week. Someone even
took the suggestion and listened .

As to the lack of firm Democratic opposition
to this popular but questionable program , reminds me of the Beyond the Fringe routine "The war's going badly , hop in your crate , pop over to Hamburg...... don't come back. It's time for a futile gesture."


Yes, Specter there was. I can't remember her name either but I seem to recall she was from Stanford. Yesterday,BTW, Taranto demolished one law professor who claims the program was illegal and then confessed total ignorance of the relevant case law.

Speaking of leaks, I asked Gonzales to investigate the FISA judges' leaks to the press today. Judicial Error


Specter. Well Cass Sunstein's a man
but he's an example of a respected
liberal law professor who backs Bush.
I've accepted his reasoning on other
issues so I'll be consistent in accept
it here. An additional reason why I
don't think my party should nail its
colors to the mast of that sinking ship.

As to what would have been RIGHT
rather than popoular, I agree with
David Brooks that Bush should have
called in Daschle and the dem leader
of the house (name forgotten,too bad
a good guy)in Oct 01 - and said "WE'VE got a problem you've got to help me handle it."



I found it. But, unlike the great Hiltzik, I can admit when I made a mistake. It really was a he and his name is Cass Sunstein. He was interviewed by Hugh Hewitt. Radio Blogger has the transcript here.


in this case, their concerns are important and legitimate

Not if the game is "fake it" now and "gotcha" later. After CFR invocations of constitutional purity ring hollow. What it comes down to is the question ...

Does the 4th amendment apply to international calls between terrorist contacts and parties in country.

If the answer is 911 then it clearly does not.

Anonymous Liberal

Clarice, you missed my point entirely. This isn't about what the Democratic party "deserves." Whatever you think about the Democratic party, it's irrelevant to the question of whether or not Bush's legal position is teneble. Democratic haplessness is not a legal justification.

As for the law professors who think Bush's position is justifiable, again, that doesn't undercut anything I said. For every law professor who says the Bush's position is legally sound, there are at least as many who believe otherwise. And even the ones who are on Bush's side agree that it's a difficult issue. So let's stop pretending like this is a no-brainer and that Bush is "clearly" right. If the Bush administration was so sure they were on legally solid footing, they wouldn't be trying so hard to avoid having the Supreme Court hear cases like the Jose Padilla case.


Thanks RF...I knew I had something wrong so I went and looked it up....


Awww...AL...but you said "every" in your post. It was simple to find one that didn't follow your storyline....


Everytime you have new technology and an issue as difficult as this, you will find debates on the legality of it. (Actually, I doubt you can find unanimity among lawyers on anything.)

This really is despite all the blah blah about law, a power struggle between the executive and legislative branches. The courts if they are wise, and have been for the most part, cede substantial authority to the executive in wartime, consistent with the Constitution and pragmatic consdierations. (The necessary decisions must be made by the branch responsible for national defense, on facts ordinarily best known to him and under circumstances where extensive deliberations with a cast of hundreds is not feasible.)

As this is largely a political, not a legal issue, the Dems had to fight this out in a timely way politically. They cannot accede when they think it is the politically wise thing to do, reap the benefits of the program and conduct (none of the many attacks here everyone believed would occur have) and then go whining they weren't properly informed (they were,BTW) or that there was something wrong with the program. There are no take backs in advise and consent.


OOPs...twice in a day. I hope I can survive all these mistakes. 'Course I'm not a journalist....At any rate...AL...you said:

they would all say that the legal justification being invoked by the Bush administration to justify the NSA spying program is questionable

you did not say "every"

Anonymous Liberal

What it comes down to is the question ...
Does the 4th amendment apply to international calls between terrorist contacts and parties in country

No! That's not the issue at all. The question is whether the President's decision to bypass FISA was legally/constitutionally justifiable. Everything else is of, at best, tangential importance. This isn't about the 4th amendment. It's about FISA and about article II.

r flanagan

AL . All the legal heavy hitters on both
sides refer to the issue (as Judge Posner did
on Hardball) as "arguable".

One could argue that that's a reason to
ask the Supremes. Or you could argue as
I do that for the sake of our system
of checks and balances the CIC should
not needlessly push the issue to the Court
but should observe the spirit rather than
the letter of the law. The object of the
exercise was to do some needed eaves dropping
rather than to demonstrate that the Executive
has the inherent power to do it without


Bush should have called in Daschle

Daschle refused W's request to explicitly cover the US in the AUMF even though 911 was an attack from inside country. That says it all right there. BTW any obligation to anti-voters and non-voters is limited to protecting the country and upholding the constitution. IMHO their advice should go unheeded and their complaints should fall on deaf ears because right to complain obliges nobody to listen.


Great letter Clarice.

Gabriel Sutherland

Legal? Political? Can't it be both?

It doesn't really matter at this point. It's already been decided. It's both.

On top of that, is this entire hoopla a Rovian ploy to get the Congress to reconsider if it went too far with the Church reforms leading to the creation of the FISA court? Paging Wayne Slater. Please pick up the white phone.

Anonymous Liberal


I'm sorry, but you could not possibly be more wrong. Constitutional issues don't become moot because a few Democrats failed to raise timely objections. That's beyond silly. That's not how constitutional and legal issues are settled in this country or in any sane system anywhere in the universe. Violations of the law (if that's what happened) are not rendered unimportant because some of the people complaining about them have been slow to raise the issue. That may not be "fair" in some myopically political sense of the word, but so what.

Specter, I've read Cass Sunstein's posts on this issue, and they in no way contradict what I said. Sustein is one of the people who ultimately comes out on Bush's side (though with many caveats based on his assumptions about key facts), but Sunstein would be the first to admit that it's a difficult issue and that reasonable minds can come out the other way.

Cecil Turner

I'm not saying this justifies their lack of opposition, but it does explain it.

So they had to be gutless in order to avoid charges of gutlessness? I wonder if it's too late for spine implant surgery.

I think it would behoove conservatives to start taking these questions seriously, regardless of what you think about some of the people raising them.

I'd suggest the legal issue is between the Executive and Legislative branches over the conduct of the war; and thus, ultimately, a political one. The question you refer to has been asked and answered. It might behoove liberals in this country to remember who the ultimate authority is, and to start listening.

Gary Maxwell

Or you could argue (as I do) that if there is some problem with the (current) law that you could act in a bipartisan manner to help protect us all and pass legislation that covers the situation. That would be acting positively and responsibly instead of the converse.


Thanks. I don't know why McCarthy didn't do it, but I picked up the ball and ran with it.


It's about FISA and about article II

If the 4th doesn't apply then article II trumps FISA. Regardless of what you think the real question is, if the answer is 911 then article II wins.

Bottom line isn't the purity of the constitutional argument, it's that FISA is unworkable. From that fact the back annotation will proceed.


AL, for some reason I have to sign in each time I post on this thread but not the others, and it is a pain in the rear.

Cecil, answered your last comment to me as I would have myself.

It is an inter-branch power fight in an area where the courts regularly defer to the executive and one where the Dems failure to timely act makes the issue moot. Except on the far reaches of sanity.


AL, had you attempted to answer the questions I posed, you were supposed to get visions of academic constitutional scholars All Along the Watchtower and busy little congresspeople buckling down to writing laws instead of polishing pejorative and perjurytive polemics.

You have missed the point that FISA is unwieldy. The Administration chose a legal option. That's it. Now why these leakers chose an illegal option is another question.

Anonymous Liberal

Or you could argue (as I do) that if there is some problem with the (current) law that you could act in a bipartisan manner to help protect us all and pass legislation that covers the situation. That would be acting positively and responsibly instead of the converse.

Unfortunately, Gary, the White House has refused to go this route. They bypassed Congress and have shown no willingness to seek Congressional authorization. Moreover, under their legal theory, such authorization is both unnecessary and, to the extent it tries to regulate an area within their definition of Article II, unconstitutional.

Moreover, bipartisan legislation requires both parties. Republicans in the House and Senate (with a few notable exceptions) have shown little inclination to proceed down this route, and they control the docket.

Anonymous Liberal

The answer to your question is simple. All we have to do to avoid the political trappings of this issue is to do what Clarice is apparently not capable of doing: focus our debate on the substance of the legal arguments, and not the behavior of the various political mouthpieces advocating them. As a matter of law, the President either exceeded his authority or he didn't. The answer to that question in no way depends on how and when Democrats first raised objections.

You write:
You have missed the point that FISA is unwieldy. The Administration chose a legal option.

I don't think I missed that point, I just don't see how it's relevant. Let's assume that FISA is unwieldy (though the Bush administration has not explained why). When a statute is unwieldy, you seek to have it amended. You don't just stop following it. Unless you think FISA itself is unconstitutional (like Boris apparently does), this really isn't much of an argument.


Geez AL you are exceeding all previous bounds of your absurdity. The Dims shut down the Senate in a stunt to highlight their supposed concerns about pre-war intelligence a month ago and we have heard nothing about it since.

They are NOT serious about anything but their agenda to damage Bush.


I liken Dim position on foreign policy similar to their position on national security...if its important then its a shameful portent of fascism.

Intervene in Bosnia without UN imprimatur or national interest...because it is the right thing to do.

Bush has shamefully declined to commit US forces in Darfur. But does any situation more truly define quagmire than Darfur?

Bush has shamefully committed US forces in Iraq even though on human rights grounds it was the right thing to do. George Will pontificates that the American public would never have agreed to intervention on such grounds.

Intercept communications between our avowed enemies and persons in the US? Is that not the height of what a reasonable search should be? Give me a break and kiss my ass to boot.

Anonymous Liberal

Geez AL you are exceeding all previous bounds of your absurdity. The Dims shut down the Senate in a stunt to highlight their supposed concerns about pre-war intelligence a month ago and we have heard nothing about it since.

They are NOT serious about anything but their agenda to damage Bush.

Noah, you seem to be suffering from the same affliction as Clarice. My whole point was that the "seriousness" or "absurdity" of certain Democrats (or even the whole party) is irrelevant. Democratic non-seriousness is not a legal justification. It's just a dodge, a way of avoiding the actual issue. This is, at heart, a legal/constitutional issue and it's importance goes well beyond petty Democrat vs. Republican squabbling.


OK AL...I am willing to wager my entire net worth that your position re the NSA program will not be sustained by the SCOTUS. I dare say that I am willing to bet that even moonbats Breyer and Ginsburg will side with Bush. Put up or shut up.


Parenthetical note: the typepad software engine seems to be nearing terminal breakdown.

Anonymous Liberal

That's a risky bet, Noah. The Court decided Hamdi 8-1 against the administration.

I'm doubtful that this particular issue will ever get to the Court. I think the Bush administration will do something to moot it before that happens (e.g. securing some sort of Congressional approval), or the Court will punt on it.

If it actually got to a decision, I think it would be a close one, closer than Hamdi. Certainly adding Roberts and Alito would help the administration (indeed I think they were selected precisely because of their positions on these war powers issues). I still think the Bush administration would lose, though. I'd be willing to place modest wager, but I'm not sure how the logistics of that would work (plus we'd probably have to wait many years for a resolution).

I appreciate your convinction, though.

Gary Maxwell

Moreover, bipartisan legislation requires both parties. Republicans in the House and Senate (with a few notable exceptions) have shown little inclination to proceed down this route, and they control the docket.

AL go get your boys to bring forth reasonable legislation that fixes any perceived problem in the current situation and keeps us safe. Get enough signatures that its obviously a wide spread and wildely held Democratic view ( probably a problem right there ) and watch and see if it does not get a fair hearing and a vote. I will pledge to be on the ramparts with you to make sure Hastert and Frist pay attention.

There is no protocal on which party goes first in action and this way the Dems will get some sorely needed credit for doing something to make us safer.

Think its going to happen? I think 7 levels of Dante's hell will freeze over first.

Gary Maxwell

wildely = widely Sheesh



I agree with you. It is serious and does go beyond party affiliation. Which is why I want the leaker prosecuted to the fullest extent of the law.


AL...would you trust Clarice or Tom to hold personal checks re the outcome? If so and they agree I am willing to bet $10,000 that the Bush position will be sustained. I'm sure the details could be worked out. BTW I regard this as a sucker bet and I would not normally engage in such activity.


AL, In normal legal matters silence is taken as consent. So, if I tell you I'm going to do something and you take no action to protest, you are deemed to have agreed with that course of action. Certainly, any court or public opinion would view the fact that those briefed took no further action as good evidence consented to the President's actions.


I agree with Noah, I think Bush wins on this one.


On the President's side of this issue we have people likeProfessors Sunstein and Fried and here is the example of the Dem's "brain trust":

[quote]I'm Just a Law Professor, Why Should I Know the Law?
Yesterday radio host Hugh Hewitt interviewed Rosa Brooks, a professor who teaches constitutional law at the University of Virginia Law School and columnist for the Los Angeles Times, who has raised the idea of impeaching President Bush for spying on al Qaeda terrorists' phone conversations with Americans. Radioblogger.com has a transcript:

Brooks: I think it seems to me that the NSA surveillance program on its face violates the Foreign Intelligence Surveillance Act, and--

Hewitt: Now, you have read United States v. United States District Court, right?

Brooks: Uh, Hugh, you're pushing me here.

Hewitt: It's--

Brooks: Refresh my memory.

Hewitt: United States v. United States District Court, Eastern District of Michigan, in which the United States Supreme Court specifically says, Justice Powell writing, we are not going to consider whether or not the president can, in fact, conduct surveillance of this sort.

Brooks: What sort?

Hewitt: Foreign agents communicating with their agents in the United States, even if those latter are citizens.

Brooks: OK.

Hewitt: So they specifically reserved the question to one side, and the foreign intelligence surveillance court appeals board, in In Re Sealed Case No. 2 [link in PDF], also said no, the president has the authority to do this. So given that the federal authority--

Brooks: Well, you know, Hugh, I mean, you've got the case law at your fingertips, and I'm not going to challenge you on it, because I don't.

She then goes on to say that "quite a lot of Republicans" agree with her--but when Hewitt presses her to name them, the best she can do is John Dean, the Watergate figure whose views today are indistinguishable from those of the angriest of Angry Leftists. "He counts. He counts," she insists.

It's certainly fun, if not enlightening, to get this glance into the Bush-haters' brain trust.[/quote] http://www.opinionjournal.com/best/?id=110007771

Cecil Turner

Democratic non-seriousness is not a legal justification. It's just a dodge, a way of avoiding the actual issue.

If the Democrats aren't going to take the issue seriously, why should I? Obviously the Executive has the authority to wiretap the enemy in wartime. And if the Legislative Branch won't act to restrict the Executive from certain measures, is it not giving tacit approval to the measures chosen? If so, I think you need to find a Constitutional argument against the NSA program . . . and I don't see any.

Anonymous Liberal


That's not how things work. If Bush violated the law, that violation is not excused because the few members of Congress who were briefed on the issue didn't protest loud enough. Silent acquiescense by a handful of representatives and Senators is not even close to the same thing as a law passed by both Houses. Can you really not see the difference?

Noah, call me chicken if you want to, but I don't have 10k to toss around. And even if I did, my wife would kill me. :)

I will promise, however, to write a post on my own blog giving you credit for predicting a unamimous ruling in favor of Bush (if that happens). Fair enough?


wildely = widely Sheesh

I am unsure why this correction was necessary.


OK AL whatever, pussy whipped guardian of your family fortune.


Objection to PW noted with laughter.

Gary Maxwell


should I have put in small print on page 14?

David Walser

AL, I'm not an attorney nor do I play one on TV, so I may be missing something, but why is the Administration obligated to gain Congress' explicit permission for an action if it has ample reason to believe the action is legal? In this case, 4 different federal circuit courts of appeal have held the President has the authority under Article II to conduct warrantless searches for national security purposes. Another federal appellate court, this one established to listen to appeals from the lower FISA court, said that, if the President has the inherent authority to conduct warrantless searches under Article II, Congress could NOT restrict that authority by enacting FISA. True, the Supreme Court has not ruled on the question and the Supreme Court could overturn the lower courts. (The Supreme Court HAS said that the President's Article II powers over national security do not allow warrantless searches for other reasons. The Court reserved for another day the question of whether Article II authorized the President to conduct warrantless searches for national security purposes.) Given that 4 appellate courts have recognized a President's authority to conduct warrantless searches, the FISA Court of Review has said that FISA cannot prevent the President from conducting such searches, and that the Supreme Court is (at worst) silent on the question, why must an Administration assume the answer is "no" when all the court authority seems to say "yes"? This does not seem playing fast and loose with the rule of law. Instead, the requirements for DOJ review and the consultations with Congress all imply a proper respect for the law and for the other branches of the government.


Amen bother!




Here is what I think and I think what TM et. all are thinking too.

DEMS played dumb because 1. They are OR 2. They saw the benefit of doing so for future political gain...which both turn out to be unserious.

I think 2.

BECAUSE...Serious, national security minded legislators would have acted in grown up fashion to correct the various aspects of the program they had misgivings about.

Notice, to this day NO ONE has called for an END or STOP.

Therefore, the long silence, contrasted with the hand-wringing and brinksmanship NOW is just plainly disingenuous.

The argument is the legislators couldn't in any meaningful way address it. Ignoring their Constitutional right to do so, if the DEMs methods in governing and addressing issues brought by Bush in recent and distant past demonstrate anything, it is true they couldn't (without sacrificing more election wins!).

However, if meaningful grown up legislators viewed their role as working with the Admin, as opposed to against everything, particularly matters of National Security, they could have sought to iron out any of their concerns...and *IF* the Admin's response was "sit and spin" then the DEMs today would be justified in their ire.


Gee AL,

Add in Rosa Brooks and now we have another who can't even form an opinion. The problem is that there are so many people on the left opening their mouths and speaking before they study the issue, that they just open themselves up for all kinds of criticism and make themselves look really, really stupid. I actually hope they keep it up - it will just keep Bush's poll numbers rising.

Regular, everyday people are just plain tired of every single thing being called a "scandal" by the Demoncrats. It is working against the party.

More than that, you keep stating that it is simply a matter of law. OK. Let's take that as a premise. Then what do you say to the idea that if what the President did is against the law (which I don't think it was), then everyone who knew about it and did not speak up immediately is guilty of conspiracy and complicity. That means every single one of the Demoncrat leaders that were briefed, and never said anything.


I used to think jane Harman was sort of hot...a rational Dimocrat...oxymoron that might be.


Ans I forgot to add

Absent any evidence of meaningful action to really address the misgivings (and that Nancy Pelosi has been given a desk at NYT's), there is very little else but to conclude they are playing politics with national security.

David Walser

AL, I have two responses to your suggestion it would have been better for the Administration to comply with FISA rather than to ignore its provisions (even if FISA's restrictions on the President are properly viewed as unconstitutional):

First, it's NOT clear that Administration ignored FISA. Since we do not know all the technical details of the NSA program, we don't know for sure, but it appears from the most common scenario discussed, FISA does not apply to what the NSA was doing. That is, FISA requires a warrant if a known US person is a target of the intercept. It's hard to see how a US person can be said to be targeted if all NSA knows is that someone (unknown) is being called (or is calling) from a number in Pakistan that is thought to be associated with a terrorist. If this is the case, since no US person was the target of the intercept, FISA's warrant requirement does not apply. Again, the Supreme Court may ultimately disagree, but in so doing they would be departing from the clear meaning of the statute. At bottom, the Administration as much more than a merely colorable argument in its favor on the question.

Second, you may argue, what's the harm in getting a warrant even if FISA, based on some technicality, may not have applied? The problem is that, absent a specific target that can be identified, no warrant can be issued. Per the the 4th Amendment, "... no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." In short, to comply with the law, FISA, you demand the Administration ask the courts to issue warrants without the Constitutionally required specificity of "the place to be searched, and the persons or things to be seized." How is ignoring the Constitution respecting the law?


No matter how the Supreme Court rules on this case when it is brought before them there are going to be people who are unhappy with the outcome just as there are unhappy people on this thread. In my view President Bush made the right move, and didn't break the law. There is precedent for this with Kennedy, Johnson Carter, Clinton et al.

Anonymous Liberal


I appreciate the fact that you're actually engaging the substantive issue rather than getting bogged down in all the irrelevant political details. That's refreshing.

You make some good points, but as you seem to acknowledge, there is world of difference between a court saying that the president has the authority to initiate warrantless wiretaps in the absense of statute and a court saying that the president has the authority to do the same thing when a statute specifically forbids it. The cases you cite support the former proposition, not the latter. As the Supreme Court said in Youngstown Steel, the president's article II power is at its "lowest ebb" when Congress has spoken directly on the issue.

And I disagree with your assertion that the wiretapping at issue may not have violated FISA. The administration itself, via Alberto Gonzalez and others, have conceded that it does. They are asserting that the AUMF and Article II give the president the authority to disregard FISA.

In short, I disagree with your assertion that the president had "ample reason to believe the action is legal." I think it's perhaps fair to say the president had a colorable argument that his action was legal, but it was by no means clear. In fact, I'm willing cut the President some slack for making such a decision shortly after 9/11. But it's been four years it's well past time to go to Congress and seek explicit approval of the practice. There's a good article on this over at the National Journal. Very balanced.


AL is no more serious than the Defeatocrats on the issue.

(1) FISA can be interptreted for NSA compliance

(2) FISA is unworkable post 911

It is pointless to debate proper solutions for (2) based on (1). Clearly NSA did what was necessary and if that falls under (1) there is no debate. Period. If doing what was necessary is interpreted by some as being in violation of FISA, then FISA is the problem, and the only question is which argument to override shall we select for maximum agreement.

That's not what's happening though. Unserious partisans are trying to claim that doing what was necessary is impeachable, or fascist, or evil based on incomplete data and their interpretation of FISA.


But it's been four years it's well past time to go to Congress and seek explicit approval of the practice

Mr Purist is willing to cut some temporary slack !!! Cool.

That's as close as AL's going to get to an admission that it was NECESSARY to act unilaterally. If so, then FISA was broken to begin with and if any branch has the obligation to fix it up and make it all right that branch would be CONGRESS that created the TURKEY in the first place and not an extra burden for the EXECUTIVE FIGHTING A GODDAMN WAR.


I will check out the article at National Journal
On an unrelated topic, Representative Flake and Bass are circulating a petition to bar Rep. Tom Delay from running for head of leadership.
He hasn't been convicted of anything yet his former friends are going wobbly on him. I agree with Levin's article that they are abandoning ship too soon.


OK, it's official John Podesta has called Tom Delay a crook on Hardball. This echoes Ronnie Earle comments at a dem fundraiser. I wonder if they can be sued for slander?


AL you horshit continues unabated by reason, fact, or logic.

David Walser

AL, thanks for the compliment. I do think it's more productive to address the substance of the issue rather than resorting to name calling or impugning motives.

You are correct, the 4 federal appellate court decisions I referred to were decided pre-FISA. However, each found that the President had the inherent authority under Article II to conduct warrantless searches for national security purposes. Recently, the FISA Court of Review, noted that these 4 courts had found that the President had this inherent authority. The Court of Review then went on to say that, if the other courts were correct, FISA could not act to reduce or regulate the President's constitutionally derived authority. I know that many say this part of the court's opinion is mere dicta, but it gives the President more than just a reasonable basis for his position that FISA does not apply in this context.

Yes, some argue, as you do, that the concurring opinion (not THE opinion) in Youngstown Steel might imply that the President's Article II power is at its lowest ebb now that Congress has adopted FISA. However, if the FISA Court of Review was right, the logic of the concurring opinion does NOT apply in this context. The concurring Youngstown opinion notes that the President and Congress have shared areas of authority. In this context, the President's power is at it's lowest ebb when Congress has spoken. However, the President and Congress also have discrete areas of authority. If an issue is covered by the President's discrete authority, it matters not what Congress has said on the subject. If a subject is reserved to Congress, the express wishes of the President on the topic do not matter. The FISA Court of Review, in what may be dicta, determined that Congress did NOT have the authority to speak on the question of warrantless wiretaps conducted for national security purposes. It may have been good policy, for the sake of comity if nothing else, to get Congress to act, but congressional permission is not required as a matter of law. (Again, assuming the FISA Court of Review is right. While it may be fine to speculate that the FISA court got this question wrong; I've not seen ANYTHING in the record to support that speculation.)

You seem to be saying that, absent clear guidance from the Supreme Court on the question, the President should not have acted without Congressional approval. Just how certain of the correctness of his legal (team's) argument must a President be before taking action? Say, in some future year, our President is a women who finds herself pregnant. Assume also that she desires to terminate her pregnancy. Can Congress block her from obtaining an abortion by passing a law making it illegal for the President of the US to have (or arrange for anyone else to have) an abortion? Assume the President's legal team tell her they are certain the law passed by Congress, over her veto, is unconstitutional. Must she wait for the Supreme Court to weigh in on the question before scheduling an appointment with her doctor?

Jim Rockford

AL you are missing the point.

We have tech tools that have WORKED, in that Al Qaeda launched and was successful with FOURTEEN terror attacks, hitting Bali and London TWICE; while NONE have been successful here despite lack of human intel, translators, infiltration, etc.

So Bush's program WORKS.

Dems have argued: a. it's illegal, stop it, maybe impeach the President; b. we should throw away this tool because terror is not a threat; c. the lives of ordinary Americans don't count anyway ("tread on me, I deserve it!")

The average American sees the debate and knows that Dems will sacrifice the last average person to protect the civil liberties of terrorists.

YES there is ample scope for abuse. So Dems if they wanted both WINNING politics and smart policy should figure:

1. How do we protect the Average guy and gal?
2. How do we do #1 without sacrificing essential liberties?

This means codified oversight; giving the President (and the one after, and so on), the freedom to act and the responsibility to report. The President being required to report annually to the American people in redacted, public form through and Independent inspector makes sense. It does both #1 and #2 above. It brings public scrutiny as much as possible and makes the President accountable while letting him get the job done.

If he abuses his authority, the Congress can impeach him. His party will lose elections. If he's in his first term he might not be elected.

What Dems are arguing for is to replace the political process with one where non-accountable Media and Judges (who have gone off the rails, FISA Judges leaking to the press and making comments about the merits of the Government's case before judging them, a violiation of judicial ethics). This is disaster and part and parcel of Dems being more concerned with Daily Kos than the average guy.

But then the Dem Party has since 1968 had a deep and abiding hatred for the average man; so this fury and frenzy over Bush stopping terrorists is nothing new.


Well said Jim.


JR, it has been pretty precisely since 1968 that the Democratic Party has progressively(there's that word) lost it populist mojo. Joe Hill's alive and speaking Spanish to future Republicans.

Progressive. Hmhh. Progressive Decline. Yeah, that fits.


"The legal theories on which the administration is relying are novel and extreme, and it's not just Democrats who are troubled by them."

Anon Liberal, these theories as so novel that every president sice the FISA was first passed in the 70s has argued that they are not bound by the FISA in certain matters of national security and yes that includes Carter.

In fact the arguments are not very novel or extreme.


What's wrong with this picture?

If someone is accidentally killed in the workplace, Dems scramble to put laws into place with the goal of never having one single workplace death ever again.

If someone is killed on the highway...ditto.

If someone is killed by a gun...ditto.

If one of our military is killed in Iraq, bring them all home!

Dems will move heaven and earth to prevent anyone's death.

But when 3000 are killed in a terrorist attack the measures put in place to prevent another attack are considered too strong. Anyway, terrorism is not THAT big of a deal and we're all overreacting anyway.


Rick Ballard


Sophistry has no limits - other than common sense. The argument at hand is practical and political and has absolutely nothing to do with the law. Lincoln stated (and Robert Jackson reiterated) that the Constitution is not a suicide pact. Using sophistry to advance a legal argument based upon hypothetical abuses (anyone care to name a "victim" of this "abuse" of a poorly crafted law - name, as in "John Smith" not name as in "suppose it were you who was being "listened to") is an act of self mockery. There is no one "serious" involved in this kerfluffle at all.

At minimum, if any Dem were serious in their concern, a bill might be offered to amend FISA to bring it out of the electronic stone age. No fear of that happening because there is not one Dem dumb enough to take that idea out for a spin.

Someone could probably talk McCain into trying it but Kennedy on his drunkest day isn't careless enough to actually put any action behind his rhetoric.

Anonymous Liberal

From the New York Times:

President Bush's rationale for authorizing eavesdropping on American citizens without warrants rests on questionable legal ground and "may represent an exercise of presidential power at its lowest ebb," according to a formal Congressional analysis released today.

The analysis, conducted by the Congressional Research Service, an independent research arm of Congress, is the first formal assessment of a question that has gripped Washington for the last three weeks: Did President Bush act within the law when he ordered the National Security Agency to eavesdrop on Americans?

While the Congressional report reached no bottom-line conclusions on whether the program is legal or not, it concluded that the legal rationale appears somewhat dubious. The legal rationale "does not seem to be as well-grounded" as the Bush administration's lawyers have suggested, and Congress did not appear to have intended to authorize warrantless wiretaps when it gave President Bush the authority to wage war against Al Qaeda in the days after the Sept. 11 attacks, the report concluded.


But many Democrats and some Republicans said they found the doubts raised by Congressional report persuasive, pointing to it as another indication that President Bush may have overextended his authority in fighting terrorism.

Thomas H. Kean, the former chairman of the Sept. 11 commission, said he too doubts the legality of the program. Weighing in for the first time on the controversy, he said in an interview that the commission was never told of the operation and that he has strong doubts about whether it is authorized under the law.


But the analyses of the Congressional Research Service, part of the Library of Congress, are generally seen as objective and without partisan taint, said Eleanor Hill, who served as a Congressional staffer for 17 years and was staff director of the joint Congressional inquiry into the Sept. 11, 2001, terrorist attacks.

"My experience is that they're well respected in the Senate and House," said Ms. Hill, now a Washington lawyer in private practice. "I don't remember anybody attacking them for being partisan. They're more academic in approach."


Still think no "serious" people are concerned?

Anonymous Liberal

Oh, and here's a real moonbat lefty:
U.S. Sen. Sam Brownback, R-Kan., on Friday said the Bush administration needed to answer questions about spying on Americans without court authorization. And Brownback said he disagreed with the administration's legal rationale, which he said could hamper future presidents during war.

"There are questions that should be examined at this point in time," Brownback said during a news conference. [...]

"I do not agree with the legal basis on which they are basing their surveillance -- that when the Congress gave the authorization to go to war that that gives sufficient legal basis for the surveillance," he said.

He said if the justification holds up, "you're going to have real trouble having future Congresses giving approval to presidents to go to war."

Rick Ballard


Put up a link so that we can all read the whole thing.

David Walser

AL, the Administration has offered several legal justifications for what they've done. (This, "arguing in the alternative", is a very common practice among attorneys and is not an indication that the Administration's understanding of the law is not well grounded.) It does not bother me that Senator Brownback or the Congressional Research Service quibble about one or more of the arguments that the Administration has advanced in support of its position. The CRS did not conclude that the NSA program was illegal. Senator Brownback did not say that the the President did not have the legal authority to order the NSA wiretaps. He said he did not buy ONE of the arguments. (I've never gone to him for legal advice, anyway.) Besides, we expect Congress to try to encroach on the prerogatives of the Executive. Thus, Brownback's carping may be nothing more than institutional bias.

As you said in an earlier post, this may be a close call whether the President has the authority to do what was done or not. My question to you still stands: How much confidence must a President have that his actions are permitted under the law before acting -- 100% certainty or will a good faith belief that the actions are most likely legal do? Note that the program was stopped when the Assistant AG raised questions about its legality. After those concerns were addressed, the program was put back in place. I see this as strong evidence the Administration had a good faith belief their actions complied with the law, if not the FISA.

What does bother me was the tenor of the original NYT's reporting which left the impression that the President's actions were slam dunk (to use the CIA's standard of proof) illegal. As your earlier and most recent posts have indicated, this was a gross misrepresentation of the legal status of the program. The fact some have questions or concerns about the program is NOT the same thing as clearly illegal.


I guess this is what you might consider a GOOD leak

THE FORMER IRAQI REGIME OF Saddam Hussein trained thousands of radical Islamic terrorists from the region at camps in Iraq over the four years immediately preceding the U.S. invasion, according to documents and photographs recovered by the U.S. military in postwar Iraq. The existence and character of these documents has been confirmed to THE WEEKLY STANDARD by eleven U.S. government officials.

The secret training took place primarily at three camps--in Samarra, Ramadi, and Salman Pak--and was directed by elite Iraqi military units. Interviews by U.S. government interrogators with Iraqi regime officials and military leaders corroborate the documentary evidence. Many of the fighters were drawn from terrorist groups in northern Africa with close ties to al Qaeda, chief among them Algeria's GSPC and the Sudanese Islamic Army. Some 2,000 terrorists were trained at these Iraqi camps each year from 1999 to 2002, putting the total number at or above 8,000. Intelligence officials believe that some of these terrorists returned to Iraq and are responsible for attacks against Americans and Iraqis. According to three officials with knowledge of the intelligence on Iraqi training camps, White House and National Security Council officials were briefed on these findings in May 2005; senior Defense Department officials subsequently received the same briefing."

Meme challenge... striking a definite blow to the bona fide one(among others)


OH sorry, that LINK">http://www.weeklystandard.com/Content/Public/Articles/000/000/006/550kmbzd.asp">LINK thing.


Does Rove do martial arts? I swear the Democrats couldn't have painted themselves into the corner they're in without a little help.

Then I recall Dean. Let's see, 8,000 divided by 20. That's enough terrorists for FOUR HUNDRED 9/11's. So that's what happened to Bill's bridge to the future, aptly symbolized by that bridge fragment erected over the watercourse in Arkansas.


David Walser:
Once again you have concise good arguments to support the reasonable position on this topic. AL I like the debate but I have to tell you the opinions of Brownback{isn't he up for re-election } and this congressional committee DO NOT TRUMP presidential authority in this matter. If it's a close call so be it. I think President Bush is on the side of the angels on this one.


Great scoop! Are you sure you're not a bona fide true investigative reporter?


Brownback is not running for re-election to the Senate (he term limited himself). He is considering a Presidential run.


"not HarmOn"


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