The NSA Eavesdropping Briefings - Too Exclusive To Be Legal?

Scott Shane of the Times returns to an issue raised by Congressfolk Jane Harman, as reported on January 5 - did President Bush comply with the requirements of the National Security Act of 1947 when he restricted the briefings on the NSA warrantless eavesdropping to  the House and Senate leadership and Intelligence committees leaders, shutting out the full committees?

From the Times:

WASHINGTON, Jan. 18 - A legal analysis by the nonpartisan Congressional Research Service concludes that the Bush administration's limited briefings for Congress on the National Security Agency's domestic eavesdropping without warrants are "inconsistent with the law."

The analysis was requested by Representative Jane Harman, the ranking Democrat on the House Intelligence Committee, who said in a Jan. 4 letter to President Bush that she believed the briefings should be open to all the members of the House and Senate Intelligence Committees.

Instead, the briefings have been limited to the Republican and Democratic leaders of the House and Senate and of the Intelligence Committees, the so-called Gang of Eight.

...

The Congressional Research Service memorandum, sent to the Intelligence Committee on Wednesday, explores the requirement in the National Security Act of 1947 that the committees be kept "fully and currently informed" of intelligence activities. It notes that the law specifically allows notification of "covert actions" to the Gang of Eight, but says the security agency's program does not appear to be a covert action program.

As a result, the memorandum says, limiting the briefings to just eight members of Congress "would appear to be inconsistent with the law."

The memorandum, written by Alfred Cumming, a national security specialist at the research service, does lay out several possible defenses for the administration's position. "The executive branch may assert that the mere discussion of the N.S.A. program generally could expose certain intelligence sources and methods to disclosure," it says.

I had previously excerpted the following caveat in the Act, so there certainly appears to be latitude for interpretation.  It is also worth noting that Congress is normally expected to rise in defense of its institutional prerogatives.

From the Act, 413b (c) (2):

(2) If the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.

Since the President has been reauthorizing this program every 45 days, he may also have presented a rationale to limit Congressional participation in the same finding.  Absent a Congressional objection, I would bet that the Administration's position is easily defensible.

Rep. Harman wins a smile with this:

Of the Congressional Research Service analysis, Ms. Harman said, "It's a solid piece of work, and it confirms a view I've held for a long time."

"A long time"?  That is a bit vague - right now it seems like a long time since my last cup of coffee.  However, if Ms. Harman has been harboring secret concerns about the limited briefing audience for months or years, well, speak up!  If your job is Congressional oversight, feel free to hop to it.  Remember, if Cheney and the NSA briefers were psychic, a lot of this intel effort would not be necessary, now would it?

UPDATE:  Oh, this is pretty funny.  From the Times:

The memorandum, written by Alfred Cumming, a national security specialist at the research service...

From the estimable Cecil Turner we learn that Mr. Cumming donated $1,250 to the Kerry campaign in 2004.   Not that there is anything wrong with that!  But how did the Times miss it?

STILL MORE:  The Anon Lib makes the good point that the portion of the statute excerpted above comes from the section covering covert actions, and it does not appear that the NSA program would qualify as such:

e) “Covert action” defined

As used in this subchapter, the term “covert action” means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include—

(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;

(2) traditional diplomatic or military activities or routine support to such activities;

(3) traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities; or

(4) activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad.

 

Comments

[Cecil Turner]

Okay, maybe I'm a cynic, but every time I see the term "nonpartisan," it makes me just a little suspicious. In this case, the logical place to check is with FEC spy. Imagine my surprise:

CUMMING, ALFRED
WASHINGTON, DC 20008
US GOVERNMENT/ANALYST

KERRY, JOHN F VIA JOHN KERRY FOR PRESIDENT INC
03/23/2004 500.00 25971237124
06/30/2004 250.00 24971355599
07/02/2004 250.00 25971305076
08/15/2004 250.00 24991236280
Total Contributions: 1250.00

[pollyusa]

Off Topic, but I thought you would be interested in this new account from Timothy M. Phelps of Newsday has a run down of his dealings with special prosecuter Fitzgerald.

I've always wondered what happened with these Newsday reporters.... they and Novak were the first reporters the DOJ were looking at and appartently so was Fitz.

In the Columbia Journal Review, Timothy M. Phelps of Newsday has a run down of his dealings with special prosecuter Fitzgerald.

According to Phelps, he and Royce were the first reporters contacted by Fitzgerald.

Roughly two months after he empaneled a grand jury in Washington in December 2003, Patrick Fitzgerald called Newsday saying he wanted to talk to us. So far as I know, we were the first reporters he contacted, with the possible exception of Novak, whose interactions with Fitzgerald are still unknown.
CJR January/Febuary 2006

You'll find a couple of other recent Plame articles here as well.

[Tom Bowler]

I this the first time a Democrat has actually brought up a point of law when arguing that the criminal terrorist Bush must be impeached?

[Tom Bowler]

Is this... I meant.

[clarice]

Very good analysis Tom, and as usual Cecil, good searching.

Should there be a test before someone can be called a journalist? And should that test include demonstrated proficiency in using Google?

[Harry Arthur]

TB, Is this the first time a Democrat has actually brought up a point of law when arguing that the criminal terrorist Bush must be impeached?

I'm not trying to be obtuse but your point?

Is this a criticism of the democrats or of Bush?

[Lew Clark]

I think, just to be safe and all legal and stuff, the administration should start posting detailed reports on all classified national security matters in the NYT, so that all interested parties would be sure to stay informed and current. Only problem is that, based on it's history, the NYT would get it wrong.

[Harry Arthur]

clarice, do you mean some government analysts might actually have agendas of their own?

Say it ain't so.

[Appalled Moderate]

Off topic, I have to say I really hate that FEC spy. I don't believe my political contributions are the public's business. Frankly, it just encourages me to give to lobbying organizations that reflect my views, so that my politics are not the currency of my boss, my work associates, my clients or my neighbors.

%^%$*& McCain-Feingold.

[epphan]

On Phelps, the more interesting point is near the end where he chastises his fellow “journalists” for selling out First Amendment principles in the name of partisan political positions. This, of course, will be lost on the “journalists” who don’t have enough sense to understand what they’ve done.

[cathyf]

%^%$*& McCain-Feingold.

I'll add my $!^&@# to yours, AM...

cathy :-)

[idontknow]

Since this method of finding information was new, why not establish new protocols for its implementation? Wouldn't that put the admin in the clear? Why keep reauthorizing every 45 days?

[Wonderland]

Cecil:

Shane described CRS, the entity, as nonpartisan, which it inarguably is.

Further, simply pointing out that the author of the memo liked Kerry over Bush doesn't get you anywhere. Legal briefs are written by people of all political persuasions. It's the actual arguments in the brief that matter, not the political party of the author.

[maryrose]

" If your job is congressional oversight, by all means , hop to it"
Yes why haven't these oh so concerned partisan dems hopped to it to ;
1. Change the law
2. Propose a way to track Al Oueda that works for them and for us
What, I can't hear you! Does that mean you are out of ideas or didn't you have any in the first place. Methinks it's probably the latter.
" Harboring concerns about the limited briefing audience, well then speak up"
Yes where were the comments or sense of outrage for quite some time. This is all CYA speech and again does nothing to rectify the situation or make us safer.

[epphan]

Wonderland:
In fact, Cecil didn't draw that conclusion. You did. And that is why it's important. And by the way, since it's being argued, it's not "inarguable" that CRS in nonpartisan.

[maryrose]

Wonderland:
Just because Scott shane says it doesn't make it so. His opinions have been discredited here quite a bit.

[maryrose]

Wonderland;
Though I like your name you obviously agree with the arguments as stated in the above report. I on the other hand do not. They are neither the ultimate authority nor the final arbiter.

[David Walser]

In this context the CRS is not nonpartisan. The "C" in CRS stands for "Congressional" and the CRS is partisan in the sense that it has an interest in one of the parties in any dispute between the Congress and the Administration. In other words, the CRS is no more nonpartisan than is the Department of Justice.

None of this means, of course, that the CRS cannot produce an excellent, objective, analysis -- as can the DOJ. Hmmm, did the media represent the DOJ letter to Congress on this issue as being produced by a nonpartisan organization?

[Anonymous Liberal]

Tom,

I think you've misinterpreted the statute by taking that provision out of context. 413b is titled "Presidential approval and reporting of covert actions." 413b(c)(2), by its own terms and the structure of the statute only applies to "covert actions." The statute defines "covert actions" as:

e) “Covert action” defined
As used in this subchapter, the term “covert action” means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include—
(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities....

Covert actions are the type of things that, if exposed, the government intends to deny being involved with (instigating insurrection in foreign countries, etc.). It's similar to agents who operate under non-official cover. As soon as the NY Times exposed this program, Bush admitted that it existed and defended it. So this isn't a covert action, and 413b(c)(2) is inapplicable.

I know this is a rather minor point, but I think the Harman and the CRS are correct that, under the law, the full intellegence committees needed to be briefed about this program.

[Anonymous Liberal]

Hmmm, did the media represent the DOJ letter to Congress on this issue as being produced by a nonpartisan organization?

David, I see your point, but you can't really mean this. If the media described the DOJ as nonpartisan, that would totally inaccurate and misleading. The DOJ represents the views of the president, who is a republican.

If you want to argue that the CRS has some sort of institutional bias, fine, but that's not the same thing as partisanship. The CRS isn't Republican or Democrat.

And even the argument for institutional bias is pretty weak. I don't see too many Republican members of Congress standing up to the president right now. Clearly party loyalty is a more telling indicator of behavior than institutional affiliation.

[Wonderland]

AL, as usual, is correct. If you read the actual CRS report, it states plainly the various arguably legitimate bases on which the Administration can mount a defense to a charge that it did not comply with the Nat'l Security Act.

Second, as for David's point: taken. I was referring to partisanship based on political party. Of course, people can be "partisan" in other ways, like Congress v. Executive. I was attempting to rebut Cecil's implied point that the analysis was suspect because it came from a Kerry supporter.

Third, as to maryrose's and epphan's (similar) points, there can be no argument that the CRS is an "arm" or is otherwise "affiliated with" one or the other of the major political parties. I also recognize that the CRS is not the end all, be all of legal analysis. But if you're going to argue that the brief's conclusions are wrong, you ought to at least offer some colorable objections to its analysis.

And, fwiw, I don't "obviously agree" with the conclusions in the brief. Even though Tom relied on the wrong part of the law, after reading the brief, it seems like the Administration probably has some wiggle room, such that their actions weren't clearly illegal, but certainly didn't comply with the spirit of the law. I'm still undecided as to whether I think a technical violation occurred.

[Anonymous Liberal]

It's also worth noting that even in 413b(c)(2) was applicable, 413b(c)(3) would be as well, and that provision says:

Whenever a finding is not reported pursuant to paragraph (1) or (2) of this section, the President shall fully inform the congressional intelligence committees in a timely fashion and shall provide a statement of the reasons for not giving prior notice.

So even if Bush was entitled to brief only the gang of eight, now that the program has been exposed, he would still to report to the full committee.

But, again, this is irrelevant because this entire section doesn't apply to this situation.

[davod]

The problem, if you can call it that, is the media (any media). I did not read the CRS report. If, as is stated in the above comments, it did provide both points of view then the media picks what it wants and leaves the rest.

Just another reason to treat any story in the media as suspect. If you have sufficient interest you should always look for the source documents.

[maryrose]

Dick Cheney was on Neal Cavuto today and explained by what authority President Bush acted to keep us safe from terrorists. His explanation works for me. He also stated when asked that Gore's comments made him glad Gore lost the 2000 election. I couldn't agree more.

[boris]

I think you've misinterpreted the statute by taking that provision out of context.

Since your interpretations of what I write are so often different than my own interpretations of what I write, it is hardly surprising that your interpretations of anything are generally at odds with reality. As difficult as it normally is to pin you down to a coherent stand on anything, one might expect some respect for at least one interpretation different from the four or five you regularly employ to confuse an issue.

Really, not trying to be snarky, just an observation to take into account.

[boris]

Not that everything I write succeeds in presenting one and only one reasonable interpretation, still ...

Leave the alternate option open more often.

[Cecil Turner]

Shane described CRS, the entity, as nonpartisan, which it inarguably is.

"Inarguably"? If you say so. You could make the case that any organization is non-partisan, it's only when you add in the pesky people that it gets messy.

It's the actual arguments in the brief that matter, not the political party of the author.

Puh-leeze. Then why did Shane feel it necessary to clue us in that this guy was a representative of a "nonpartisan" organization? I don't care if the guy gives to Democratic campaigns . . . just don't try to tell me he's a disinterested observer. He isn't. He's a Democrat and a representative of Congress, which gives him two good reasons to claim the President overreached.

So even if Bush was entitled to brief only the gang of eight, now that the program has been exposed, he would still to report to the full committee.

Why not just refer 'em to the newspaper?

[Anonymous Liberal]

Since your interpretations of what I write are so often different than my own interpretations of what I write, it is hardly surprising that your interpretations of anything are generally at odds with reality.

Okay, Boris, please read the statute (there's a link to it in the post) and then provide an alternate interpretation that is less "at odds with reality". I'm all ears.

[boris]

Ok ok, "reality" was a zing.

There seems to have been an effort made to allow for secrecy. If one thinks the NSA program qualifies as something that should be secret, then a "liberal" interpretation might be in order. When liberals demand "strict" interpretations applied in a partisan fashion, sincerity is suspect.

[Anonymous Liberal]

Perhaps there is some other provision that allows for the kind of limited briefing the administration conducted. I don't know. I'm not familiar with all the statutes involved. My point was only that the particular provision Tom highlighted, 413b(c)(2), doesn't seem to be applicable.

[owl]

Shame about Harman. She was the last of the good Democrats and her party finally got to her. If you look, you'll see she is embarrassed. Someone ought to push on her.

[Tom Bowler]

Harry Arthur, I was aiming at the Democrats with the remark/question about this being the first time they actually referred to an apparently pertinent law. For the most part they've continued their usual routine, which is to simply misrepresent the facts of the situation. If you were to listen only to the left wingers on this topic, you'd have no idea that there were any international phone calls under surveillance, never mind that all of them were international calls to/from a suspected terrorist.

[JohnH]

regarding all these comments about whether the Bush Admin. followed the letter of the law in briefing members of Congress, see the letter quoted on the Weekly Standard's blog. Clinton/Gore were responsible for helping to sell arms to Iran in 2000 and didn't tell Congress about this action which clearly had national security implications:

Statement by Former Secretaries of State, Defense, Directors of Central Intelligence and National Security Advisors on the Sale of Russian Weapons to Iran, October 24, 2000
The following individuals, who include supporters of both Governor George W. Bush and Vice President Gore, believe strongly that:

``The President's most important job is safeguarding our nation's security and our ability to protect our interests, our citizens and our allies and friends. The military balance in regions of vital interest to America and her allies--including the Persian Gulf, which is a critical source of the world's energy supplies--is the essential underpinning for a strong foreign policy.

``This is why we are deeply disturbed by the agreement made between Vice President Gore and then Russian Premier Chernomyrdin in which America acquiesced in the sale by Russia to Iran of highly threatening military equipment such as modern submarines, fighter planes, and wake-homing torpedoes.

``We also find incomprehensible that this agreement was not fully disclosed even to those committees of Congress charged with receiving highly classified briefings--apparently at the request of the Russian Premier. But agreement to this request is even more disturbing since the Russian sales could have brought about sanctions against Russia in accordance with a 1992 U.S. law sponsored by Senator John McCain and then Senator Al Gore.''

George P. Shultz, former Secretary of State.
James A. Baker, III, former Secretary of State.
Zbigniew Brzezinski, former Assistant to the President for National Security Affairs.
Frank C. Carlucci, former Secretary of Defense and former Assistant to the President for National Security Affairs.
Lawrence S. Eagleburger, former Secretary of State.
Henry A. Kissinger, former Secretary of State and former Assistant to the President for National Security Affairs.
Donald H. Rumsfeld, former Secretary of Defense.
James R. Schlesinger, former Secretary of Defense and former Director of Central Intelligence.
Brent Scowcroft, former Assistant to the President for National Security Affairs.
Caspar W. Weinberger, former Secretary of Defense.
R. James Woolsey, Attorney and former Director of Central Intelligence.

http://www.weeklystandard.com/Weblogs/TWSFP/TWSFPView.asp

[Sue]

Cecil,

He might as well now. I suspect the numbers were being kept low in order to keep it out of the paper. One good thing about it...the suspect list is small...

[noah]

If the Administrations arguments re the legality of the NSA program are to prevail, then his briefing of the gang of 8 should (or could) be viewed as a good faith effort to keep the truly relevant parties informed of this top secret program which the Administration obviously recognized would be controversial if revealed. Also the gist of their argument is that informing congress infringes on presidential authority and endangers national security. Since it is probable that members of congress are among the leakers it looks like they miscalculated.

[BurkettHead]

Assuming, arguendo, that CRS is nonpartisan, it's still biased. After all, it's one & only client definitely has an interest in whether the Executive Branch properly briefed Congress on The Program.

[Anonymous Liberal]

never mind that all of them were international calls to/from a suspected terrorist.

How in the world can you make a statement like this with such certaintly? Unless you're the director of the program, I call bullshit. Isn't the whole point that we don't know whose calls are being intercepted because 1) the details of the program are top secret and 2) there is no judicial oversight? Isn't the whole point of having warrants (or any form of oversight) to make sure that in fact only suspected terrorists are being targetted? There have been press reports of some purely domestic calls being intercepted. And because this surveillance is done without warrants, we have nothing but the executive branch's word regarding who is being targeted. Even if you trust the president entirely, there's know way you can KNOW that only suspected terrorists have been targeted. The reason we have oversight is so we don't have to just take the President's word for it.

[dblaiseb]

AL,

The statute does explicitly exclude acquisition of the intelligence at 413b(e)(1) from the definition of covert actions.

However, there is the catch-all exception for dislosure of matters "to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters" in both 413a (other than covert actions) and 413b (covert actions). Historically, have the boundaries been located through consultation between the two branches, without judicial mediation? I don't know.

It seems that one can't avoid returning to the constitutional separation of powers issue regardless of the route one takes in analyzing this matter. Once congress throws the switch with AUMF (or a war declaration), it's difficult to see the limit of presidential power in prosecuting the war in a mere congressional statute.

Does it lie solely in the constitution itself, an amendment or executive forebearance? It is quite the question.

[noah]

The requirements in the law for judicial oversight are constitutionally incoherent.

[clarice]

I've been looking for the 42 page document that Gonzales sent to the Hill today, defending the program. The NYT cites to Findlaw.com but I haven't yet found it. If anyone does, please post it. Thanks.

[Wonderland]

Cecil, Burketthead:

Look, even if CSR is biased toward Congress's position and if the author is biased against Bush, the point remains that nobody has really mounted a colorable attack on the brief's analysis.

dblaiseb at 4:57pm makes the best effort so far, noting the "catch-all" exception, but fails to note that the CRS report dealt with exactly that clause on p9 of its brief. The CRS report noted that the legislative history clearly indicates that the language at issue only allows the Executive to withhold "certain sensitive aspects" of an intelligence program, not the existence of the intelligence program itself.

And this seems to make sense, since it's hard to imagine how the effectiveness of the program would have been detrimented if, in secret, the President informed the full Intelligence Committees simply that he had authorized a brand new intelligence gathering program run by the NSA that listened to int'l communications. My guess is that he didn't because (a) he knew he was on shaky ground when it came down to whether he had the legal authority to do so in the face of FISA and (b) it would have prompted the awkward question of why FISA wasn't adequate, a question that still has not yet been satisfactorily answered.

[kim]

Phelps should write more, and soon. It's sort of ironic. Newsday pulled them from the story because they'd become part of it, yet maybe that's what they should write about: their part in it, as he has just done. I see a way through the gloaming.
==============================

[dblaiseb]

clarice

http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf

That one?

[Patrick R. Sullivan]

Isn't Phelps the reporter suspected of having received the original leak of FBI info (probably from Howard Metzenbaum) about Anita Hill during the Clarence Thomas hearings?

Anyway, Pakistan newspapers are reporting the capture of 12 'foreign terrorists' along with computers and documents in the Swat area. Which is about 60 miles from where we killed several top Al Qaeda leaders last week.

Just a reminder of how valuable intelligence can be.

[topsecretk9]

Pat
yep! and thanks for the reminder.

Kim
OT
I am on the edge of my keyboard waiting to see what TM extrapolates from Phelps today, but on second blush where he writes

"But Royce and I told our editors at Newsday that we would become pariahs in Washington if we agreed to testify — that no other Washington reporter would ever do so. Newsday backed us up, and told Fitzgerald in mid-April that we would not help in any way. He threatened a subpoena that for some reason never came."

I wonder if this is the indication there was nothing covert to compromise? Nothing to subpoenar?

[dblaiseb]

Wonderland,

Note 3 on page 2 of the CRS report says with respect to the statutory "fully and currently informed" requirement:

Historic practice has been that in fully and currently informing the intelligence committees about intelligence activities, other than covert actions, the executive branch generally has communicated such information – almost always in classified form – to the Chairmen and Ranking Members of the intelligence committees, often in writing. Such communications then are made available to the rest of the committee membership.

Is the implication that tranmittal to other members by the committee leadership is a matter for the leaders?

[clarice]

dblaiseb, Thanks, but that's not it. I have the page it's on now, but my popup blocker seems to be stopping me from viewing the pdf file of Gonzales' filing.%^(

Patrick--thanks for the tip..I'll look up the story. If Zawahiri is in the area and not dead yet, I'll be surprised. In any event, I'm glad I' not his insurer.

[Wonderland]

dblaiseb:

"Is the implication that tranmittal to other members by the committee leadership is a matter for the leaders?"

Perhaps generally. But it's my strong impression that in this case the persons who were briefed were specifically prohibited from disclosing the info, even to other committee members. The secrecy about even the mere existence of the program, even with regard to the full Intelligence Committees -- who, let's face it, deal with super secretive stuff all the time -- just seems weird to me.

[Sue]

It never ceases to amaze me how the left can just tell when a report or a story is true. We on the right need this amazing ability.

[Wonderland]

Also, I scanned the Administration's new white paper on the legal justifications for the NSA program.

It unsurprisingly doesn't reveal anything new about the technical aspects of the program.

It also doesn't forward any novel legal arguments; it simply expands upon those laid out in the initial memo sent to Congress some weeks back.

They continue to basically argue that so long as the AUMF is in effect, the President has the unfettered and unfetterable authority to conduct warrantless surveillance targeting American citizens that he has determined are linked to Al Qaeda. (They seem to argue that such surveillance is limited to int'l communications, but it's hard to tell what legal basis there is to differentiate int'l calls involving AQ from purely domestic ones -- if anyone sees a distinguishing principle, pray tell.)

Of course, this is not surprising, since the President has also stated that the AUMF implicitly authorizes him to detain indefinitely and without charges American citizens suspected of terrorism even when they are arrested within the US (Padilla), and to "waive" the restrictions of the McCain torture ban if he determined nat'l security requires it (signing statement).

Congress needs to step up and seriously respond to this. The Administration's entire NSA legal argument is that Congress clearly authorized something (surveillance of US citizens in the US not in compliance with FISA) via the AUMF that every damn person in Congress knows clearly wasn't authorized via the AUMF. (The whole argument in the brief that Congress in 1978 couldn't bind Congress in 2001 is laughable, since they're really arguing that Congress in 1978 couldn't bind the President in 2006.)

Congress cannot let this President fundamentally alter the balance of powers between the branches, especially since this war is going to go on for generations.

[maryrose]

T>S.
Good question. How come Fitz never followed up with those subpoenas for Phelps
and Royce? Did he narrow his focus that early to Cooper and Miller and Russert? Did Matthews ever testify and how come if he did we didn't hear anything about it?

[maryrose]

Wonderland; What do you mean by"Congress cannot let THIS president" as opposed to one of your choosing? It sounds kind of depecating in tone. Thus far Congress hasn't done anything.

[Gary Maxwell]

Sue

Now that is funny.

Anyone

Isn't it true that not all memberd of the intelligence committees have high security clearances. I am almost positive that Leahy for example had his clearnance pulled for leaking sensitive data. Cant brief the whole committee without breaking another law. Now what do the liberals think we should do?

[clarice]

Whatever we didn't, Gary. Like Hillary who recently refused to admit she'd consider a military option re Iran, demanded we get the world onboard and now blames the Admministration for doing just that. Shameless lying opportunist are the wors that come to mind.

[Wonderland]

maryrose:

I simply meant that "this President" is the one who is asserting far more authority than the Constitution or laws of Congress give him. And if Congress and (an admittedly uninterested) American populace acquiesce to these asserted powers then it will be nearly impossible to tilt the scale back in the future.

[pollyusa]

Kim

I see a way through the gloaming.

I'm not sure what you're getting at here.

Patrick R. Sullivan

Isn't Phelps the reporter suspected of having received the original leak of FBI info (probably from Howard Metzenbaum) about Anita Hill during the Clarence Thomas hearings?

Yes. He wrote about the Anita Hill leak as well as his involvement in the Plame case in the CJR article.

[topsecretk9]

then it will be nearly impossible to tilt the scale back in the future.

Now we're simply at slippery slope. This whole argument has just reached such pathetic lows. It isn't a disinterested public it is a public that 1- is glad the government is trying to track the MF'ers and 2- a public that realized the necessity of such after 9-11

I don't know about most of you but I very distinctly remember sitting at my desk on 9-11 with a few coworkers, having the realization that our way of life would be drastically changed forever and that really had nothing to do with George Bush.

Frankly I am amazed at how quick our day to day lives returned and I commend our troops for waging that battle for this to be.

Terrorism is not a phase.

Maryrose-

Well he did say they all still "face jeopardy", somehow that means from Fitz - either directly form him or by way of what the defense will reveal to him?

[clarice]

I think jeopardy that comes from having to reveal sources or pay the penalty (jail or fines).

[Gary Maxwell]

Shameless lying opportunist

Those are NOT the words that come to my mind Clarice, but then you are ever so much more polite than me, so its no wonder you would not use the words that do come to my mind!

[woof]

Idontknow said:

Since this method of finding information was new, why not establish new protocols for its implementation? Wouldn't that put the admin in the clear?

Excellent question!! And take it a step further. If the democrats being briefed in this process had real doubts about the legality, they could have drafted some laws to address the new technology etc. that would have protected innocent american's privacy while enabling detecting terrorists. Instead, they sat on their hands, fat dumb and treacherous.

[topsecretk9]

Clarice, this is the passage I am referring to

...But meanwhile, even the original case involving Wilson and Plame is still fraught with danger for the press, as Fitzgerald continues to plough through the ranks of Washington journalists, now including Bob Woodward of The Washington Post and Viveca Novak of Time. All of the journalists who have testified — mostly under agreements restricting their testimony to very specific issues — are still in jeopardy. If the Libby case goes to trial, Libby’s lawyers are not bound by such agreements...

I read it different.

[kim]

Pollyusa, my thought is pollyannish, but if everyone involved in the matter wrote down all the truth they know about it, the matter would be resolved. This is the age of instant information access and dissemination. Why isn't the Plame case an open book?
==================================================

[Gary Maxwell]

Jeopardy?

I'll take "things we expect the Presdient to do to try to keep us safe" for $100 please.

[Gary Maxwell]

Jeopardy?

I'll take "things we expect the President to do to try to keep us safe" for $100 please.

[topsecretk9]

Kim

yes, why all the self-imposed "gag-order" instead we get "truthiness"

[clarice]

I do, ts. He's saying , I think, the restrictions the DoJ rules and agreement with Fitz the reporters had will not be honored by Libby's lawyers. (We have good reason to believe some of those reporters were less than forthright anf that their jeopardy goes deeper than that, but in context I think the author means something else.)

And in Pakistan--I still think Zawahiri was killed or captured:

[quote]ISLAMABAD: Investigators said on Wednesday that they had found two empty graves at the site of a controversial US air strike in the Bajaur Agency, a day after officials said that up to five foreign militants had died in the attack. However, there was no information about the identities of the insurgents who died in the raid, despite initial US intelligence reports that Al Qaeda’s Egyptian number two Ayman al-Zawahri may have been among them. [/quote] http://www.dailytimes.com.pk/default.asp?page=2006\01\19\story_19-1-2006_pg1_7 And my thoughts are withthe special ops forces who are doing such a brilliant job there. And their families.

[kim]

TS: Whattya bet Tenet is Phelp's source, too.

Wouldn't it be funny if this were all a grudge match against Miller and pal?
==================================================

[topsecretk9]

Kim

Now that is a thought I had not thought, if only because Phelps hasn't said much.

Hmmm. Bit off more than they can chew then?

Fitz might be busy having his men in black go back out into the field!

[topsecretk9]

---as Fitzgerald continues to plough through the ranks of Washington journalists---

[David Walser]

"Also, I scanned the Administration's new white paper on the legal justifications for the NSA program.
...

It also doesn't forward any novel legal arguments; it simply expands upon those laid out in the initial memo sent to Congress some weeks back." - Wonderland

I know you said that you had just "scanned" the white paper, which I assume is different than having read the document in detail, but it seems you skipped quite a bit. The DOJ spends quite a bit of time on arguments that were barely hinted at, if at all, in the first memo sent to Congress. It makes four basic arguments:

1) The President has the inherent Constitutional authority to conduct warrantless searches within and without the US if such searches are for foreign intelligence purposes AND that Congress cannot interfere with the President's use of this authority.

2) Congress, by virtue of the AUMF, enhanced the President's authority under the Constitution to conduct such warrantless searches. (The DOJ argues the AUMF puts the question within the first of Justice Jackson's three categories discussed in the Youngstown Steel opinion.)

3) FISA does not prohibit the NSA program because the AUMF effectively suspended FISA.

4) To the extent FISA would prohibit the NSA program, FISA is unconstitutional.

The first memorandum dealt with only the third argument in any detail. Indeed, one of the oft' discussed aspects of that memo was its lack of focus on whether or not Congress (and thus FISA) could limit the President's authority in this area. Many of the President's critics dismissed the question of inherent constitutional authority on the basis that the first memo was silent on the issue. "How can you argue the Constitution prohibits Congress from requiring a warrant for these searches when not even the DOJ advanced that argument in its memo?", was the claim.

[Syl]

Wonderland

alter the balance of powers between the branches, especially since this war is going to go on for generations.

Um, that's a pretty big assumption you're making. The constitution not only gives the President the authority to conduct war and keep the homeland safe from the enemy, the consitution makes it an obligation for him to do so.

Secondly, when is a war not a war? When it lasts longer than you want?

[kim]

Thanks, DW. You're hired.
===========================

[Wonderland]

David:

Actually, you're mostly incorrect. Arguments 1, 2, and 3 that you listed above were forwarded in the original shorter memo. I'll grant you that the 4th argument is new -- and I'll also state that it is barely colorable. They're saying that one act of Congress (AUMF) made another act of Congress (FISA) unconstitutional insofar as it encroaches on the President's implied war powers under AUMF. This argument holds absolutely no water. It completely inverts the Constitutional avoidance principle. They're arguing that the FISA cannot possibly be read in harmony with the AUMF. Of course, it can. It may not result in an outcome that is satisfactory for the Administration -- i.e., they may not be able to spy on as many suspected Americans without warrants as they'd like -- but that doesn't mean that FISA in unconstitutional. In truth, that's their backup argument in case their (dubious) statutory construction arguments fall short.

I'd also point out that they've framed this such that everyone who they're surveilling is linked to Al Qaeda, but they've inverted this issue, too, because FISA is meant to protect innocent American citizens. The President cannot avoid that by simply stating that he has the power to make war against AQ, and if he determines that a US citizen is AQ, that citizen no longer has statutory or constitutional rights. Again, we are talking about American citizens here. The President cannot be both the "prosecuting agent" (surveilling, arresting, or killing AQ) and also the "neutral magistrate" (approving of his designation of who is AQ) when it comes to American citizens in the US.

You may trust this President with this power. But this is not a power any President should have, because such a system would invite (a) abuse and (b) a natural expansion of the definition of "terrorist," on the President's say-so, to, say, PA sympathizers, eco-radicals, or drug runners.

With surveillance, in particular, which is done in secret, violations would go undiscovered. We simply can't allow the system to change in this fundamental way.

[Wonderland]

David:

Sorry for the double post, but I should also point out the only authority they rely on for the proposition that FISA could not encroach on Presidential surveillance power even when such power is directed inward toward US citizens is that dicta from the Sealed Case. That's what they're hanging they're hat on for that argument. I don't think it's particularly convincing, and I doubt most courts would either.

[Tom Bowler]

Anon Lib,

Re: never mind that all of them were international calls to/from a suspected terrorist.

You're right to take me to task for saying all. I'll concede the possibility that purely domestic call traffic was monitored, but I'm inclined to believe such monitoring was initiated based on information discovered in international call traffic. For that reason I'm also inclined to believe such monitoring falls into the category that courts have said are within Presidential powers to gather foreign intelligence. In other words, I'm willing to take the word of the President over that of the New York Times. At least in these circumstances.

[David Walser]

Wonderland - No problem about the double posts. Allow me to address them in reverse order. I disagree that the only authority they rely on is the dicta in Sealed Case. (They also cite a number of Supreme Court cases for the proposition that the Executive has the primary role in foreign affairs, has the ability to direct the military to protect the US without first obtaining permission from Congress, etc. They then cite these cases in support of the President's authority to order NSA to do what is being done.) Even if Sealed Case were the only authority, its MORE than anything on the other-side of the argument. Can you cite any court case that states, even as dicta, that FISA trumps the President's Article II authority in this context? No, you can't. All you can do is try to diminish Sealed Case by saying its declaration that FISA cannot diminish the President's authority is mere dicta and/or the language of the Court does not mean what the clear meaning of the words would seem to indicate. At the very least, the President is entitled to rely on Sealed Case until something shows up on the other-side of the argument. Supreme Court silence on a question is NEVER determinative.

[Wonderland]

David:

"Can you cite any court case that states, even as dicta, that FISA trumps the President's Article II authority in this context?"

Sure. Youngstown and Keith both state that valid congressional statutes trump the President's assertion of Article II powers when he attempts to act in a way that is contrary to the will of Congress (Youngstown) or in a way that violates the Constitutional or statutory rights of Americans in America (Keith).

I'd also argue that the Administration's strong reliance on Hamdi is misplaced because that dealt specifically with an American citizen captured while taking up arms agaisnt US forces on a foreign battlefield. And even there, the Court ruled that the citizen could not be denied access to a court to challenge the factual basis for his detention. With this surveillance program, those Americans in America who are being surveilled specifically do not have the protection of a court with regard to the factual basis for the surveillance. That's what this whole controversy is about.

Further, reliance on Hamdi is misplaced because the citizen was captured on a foreign battlefield. That is far different than an exercise of unfettered Executive Article II powers against Americans in America. The Administration has assiduously avoided a decision in the analogous case, Padilla, because they know they'll lose when it comes to exercise of Article II powers inside the US.

As far as Sealed Case goes, I think it's worth pointing out that the statement relied up was not merely dicta, but was dicta in a case that dealt with precisely the inverse of the question that the dicta purported to address. The only reason it's being accorded such weight is because the Administration and its defenders are truly grasping at legal straws here.

[David Walser]

Wonderland - I don't think we need to disagree about the thrust of the 1st memo. My post, that you responded to, acknowledged that the first memo had "barely hinted" at the constitutional arguments. The second memo spends a lot more time on them and develops them more fully.

I find the statutory argument far more persuasive than you do. FISA prohibits certain activities unless the prohibition is lifted by Congress. The Administration argues that the AUMF lifted that prohibition. Administration critics argue this is a ridiculous position and point to statements from Congress that they did not intend AUMF to operate to remove FISA's requirements.

One of the tenets of statutory interpretation is that you don't look for evidence of Congressional intent unless the law cannot be understood without the light of such external evidence. The Administration argues that the law itself is clear and it does not require examination of Congressional intent in this case. I agree. The President was granted all authority necessary to conduct the war. The ability to spy on the enemy is one of those things necessary to the conduct of any war, but it is particularly true in the case of this war.

There is no reasonable interpretation of the AUMF that yields the result of: you can bomb, kill, arrest, etc., but you cannot wire tap. Spying is as much a normal part of military power as is bombing. In granting the authority engage in "military action" you grant authority to do everything normally associated with military action. If you want to limit the authority to a subset of what is understood as military action, you need to say so.

A poor analogy: If I were to buy a new sports car (not going to happen) and were to take my 17 year-old daughter out to the car and tell her she could not drive it without my permission, would she be wrong to assume I'd granted her permission to drive the sports car when, a few weeks later, I granted her all authority necessary to use any of our family's transportation resources in getting to her early morning class? I may not have intended to grant her authority to use the sports car, but the sports car was certainly included in the set of our family's transportation resources that I had granted her permission to use. Next time, I may want to think through all the ramifications of what permissions I am granting, but that would not alter the fact that this time I had granted permission for her to drive the sports car to school.

[Wonderland]

One last thing before I get to work:

Tom's point is that it's possible (I'd even say probable) that purely domestic-to-domestic calls were and are being intercepted, but that that's ok under the President's Article II "foreign intelligence" gathering authority.

Now, people can argue about FISA's application to NSA intercepts of calls where one end is outside the US. But there is no argument that FISA clearly applies to domestic-to-domestic calls.

Tom believes that surveillance of domestic-to-domestic terrorism-related communications falls within the President's Article II power and cannot be regulated by Congress -- and it seems to me that a plain application of the Administration's legal arguments requires this result. So insofar as you buy the Administration's legal arguments, you have to buy that they can listen to purely domestic calls, too. (Again, if anybody can see a legal distinction between the two, I'm all ears.)

But truly, this cannot be the law. Under such a theory, the President could implement any domestic program whatsoever, even in face of Congressional prohibition, on the grounds that we're at war and his Article II powers allow it. Bush and his defenders seem to be arguing that so long as we are at war with terrorists, the President can do anything he deems necessary to that war, and the only recourse for Congress is defunding or impeachment, and the only recourse for the populace, an election. I just don't buy it as a legal proposition.

[Cecil Turner]

valid congressional statutes trump the President's assertion of Article II powers when he attempts to act in a way that is contrary to the will of Congress (Youngstown)

Interesting reading. I was under the impression they said seizing steel mills was not an Article II power (and hence required an act of Congress). Or, more specifically:

Authority of the President to issue such an order in the circumstances of this case cannot be implied from the aggregate of his powers under Article II of the Constitution.

And, just in case we missed it:

The power here sought to be exercised is the lawmaking power, which the Constitution vests in the Congress alone, in both good and bad times.

I don't see any mention that statutes trump Article II powers (nor does any rational reading of the Supremacy Clause allow such an interpretation, in my humble, non-lawyer opinion).

Here we're talking about a wartime adversary communicating with people in the US, which just happens to be their primary offensive strategy. That would seem to fall squarely within Article II powers. I also have to confess a bit of a snarky opinion of lawyers arguing about basic warfighting measures (with apologies to Admiral Nimitz): "common sense is an uncommon virtue."

[Nash]

Patrick asks:

Isn't Phelps the reporter suspected of having received the original leak of FBI info (probably from Howard Metzenbaum) about Anita Hill during the Clarence Thomas hearings?

Yes, he is, and in his CJR piece, he notes that his source (he mentions only one) testified that he/she had not given Phelps that information. Further, Phelps says, his source subsequently thanked him privately for not ratting him out.

This passed by quietly in his CJR piece, but Phelps effectively outed his source as a perjurer. He says he got the story about Hill from this (one) source. He says this source testifited otherwise. Could it have been Sen. Metzenbaum, as you surmise? It would be interesting to know if Metzenbaum testified. Does anyone have a link to that information? Perhaps someone should ask Mr. Phelps if Metzenbaum perjured himself.

[David Walser]

Wonderland - ""Can you cite any court case that states, even as dicta, that FISA trumps the President's Article II authority in this context?"

Sure. Youngstown and Keith both state that valid congressional statutes trump the President's assertion of Article II powers when he attempts to act in a way that is contrary to the will of Congress (Youngstown) or in a way that violates the Constitutional or statutory rights of Americans in America (Keith)."

I don't mean to be pedantic, but neither Youngstown nor Keith mention FISA, so they don't meet the conditions of my question. Sealed Case DOES consider FISA and DOES say FISA cannot encroach on the President's power in this area. Dicta? Sure, but it's dicta that is right on point and -- so far -- it's the only guidance we have from the courts on the question.

Your reliance on Youngstown is misplaced. Justice Jackson's three categories do not resolve this question. The Administration argues that this is a category 1 situation. Administration critics claim it's a category 3 case. Even if we grant, for the sake of the argument, that this is a category 3 case, that does not end the analysis. All that would mean is that the President's authority is at its "lowest ebb" -- whatever that means. We still have to ask does Congress have the authority to legislate away the President's inherent authority.

Suppose Congress were to pass a law stating the President could only nominate members of the opposite party for positions on the federal courts. Congress has now spoken and the President's authority to nominate someone who is a member of his own party is at its lowest ebb, Could the President nominate someone in violation of this prohibition? Of course. Why? Congress does not have the authority to legislate in this area.

So far, we've had 4 appellate courts hold that the President has inherent authority to conduct warrantless searches (for foreign intelligence purposes). We also have the FISA Court of Review state that if the other four courts were correct, FISA cannot prohibit the President from conducting such searches. You may argue that these authorities are not very "weighty", but they are a ton compared to the thin air on the other-side of the question.

[Wonderland]

David:

Points taken, but quickly, to address this:

"There is no reasonable interpretation of the AUMF that yields the result of: you can bomb, kill, arrest, etc., but you cannot wire tap."

Are you arguing that, under the AUMF, the President has the ability to shoot missiles at a house in, say, Detroit, if he determines that the four US citizens living within it are in the process of planning to bomb a local shopping mall?

I doubt you are, but that's what your argument/analogy requires. No one disputes that the AUMF authorized the President to use force in Afghanistan against Al Qaeda, and indeed, against their allies everywhere on earth. That includes surveillance. But when such allies are US citizens in the US, the equation changes because of the Constitution (which prohibits unreasonable searches of citizens) and specific Congressional enactments (which prohibit domestic surveillance that doesn't follow certain defined procedures). The President, even in wartime, does not get to unilaterally determine which US cizitens in this country are the enemy and then turn right around and spy on/arrest/kill them without any reference to the Constitution, laws of Congress, or the Courts. It can't work that way, especially since (a) this war will go on for generations and (b) the definition of "terrorist" is so malleable and open to interpretation.

If the Constitution gives the President such power, we might as well dispense with it altogether.

[Nash]

I, for one, have enjoyed the discussion between David and Wonderland. Interesting points on both sides being made.

I've been getting a creeping feeling that there are honorable arguments being made by honorable people on each side of this issue. Given that, wouldn't it make sense to have a thorough congressional investigation of the details (in private, of course) and possibly a ruling by the Supreme Court?

[Cecil Turner]

The President, even in wartime, does not get to unilaterally determine which US cizitens in this country are the enemy and then turn right around and spy on/arrest/kill them without any reference to the Constitution, laws of Congress, or the Courts.

I'd refer you to Ex Parte Quirin, and particularly to the case of (US Citizen) Mr Haupt, unilaterally arrested and subjected to a tribunal by FDR:

We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries . . .

Every situation is new, at least in some respect, and no matter what course the President takes in these matters, it's going to set a precedent. It appears the President does indeed have that authority, and responsibility, and that the legal issues get settled up afterward.

I, for one, have enjoyed the discussion between David and Wonderland. Interesting points on both sides being made.

I have too. But I don't believe this, at its most basic level, is a legal issue (at least not in the sense of whether precedent obliges the President to follow a law that clearly did not foresee the current situation). I don't expect the President to engage in hand-wringing over the latest attack, and bemoan the fact that Congress didn't provide the necessary tools to fight the war effectively. Nor will I begrudge him (or a Democrat successor) a measure taken in good faith, even if we subsequently have to agree things like taking over steel mills is a bit of a stretch.

[Extraneus]

Are you arguing that, under the AUMF, the President has the ability to shoot missiles at a house in, say, Detroit, if he determines that the four US citizens living within it are in the process of planning to bomb a local shopping mall?

I'm not clear on this argument.

By what authority do the armed forces have the right to shoot down a hijacked US airliner full of US citizens flying in the US, for example?

Alternatively, assume we were invaded by a foreign enemy, say China. Millions of their forces had overrun the states of Washington and Oregon, and were streaming down the west coast. Would the President be constrained by some law from shooting missles at a house in California if he determined that it was being used as an enemy base?

I realize these are extreme examples, but I'm not clear on where the lines are drawn, or how the present "War on Terrorism" situation differs from these hypotheticals.

[Wonderland]

Cecil:

I'd agree that this is not, at base, a legal issue that will be hashed out presently in some court. Maybe some day, but not in March 2006.

It is a political issue, however, based in a legal dispute that boils down to how much Congress will allow itself to be neutered by the President. The President is claiming that Congress, in passing the AUMF, did something that no honest Congressperson could say they knew they were doing. That much is clear from the fact that the AUMF's effect on FISA was not once mentioned in the Congressional record. So while persons like David can argue that the statute terms implicitly authorized surveillance that bypassed FISA, the President still has to deal with a Congress that is filled with persons who remember drafting and voting on the law and who don't remember FISA ever coming up.

In any event, the more insulting part for Congress is that the President, once he determined that FISA wasn't good enough, didn't bother to seek Congressional approval for -- or, in any meaningful way, inform the proper oversight committees about(Tom's dispute with and heavy milking on that point notwithstanding) -- the new NSA program.

It should also be troubling for Congress because it's not just the NSA issue, which standing alone might not be such a controversial development. Ihe torture issue, in particular, lends strong support to the view that the President believes himself to be above the law. There is no legitimate question that Congress has the power to set standards for detaining and punishing enemy combatants. Adn there's no question that Congress overwhelmingly found the Administration's policy on this front to be, at a minimum, counterproductive, and voted to make the law unmistakably clear. So the President's continued insistence that he doesn't have to comply with those standards, even post-McCain bill (because, let's face it, torture was illegal before that), is, at a minimum, middle-finger-esque.

The bottom line is that Congress will have to decide if it will assert its institutional prerogatives and hold Bush to account or if they're just going to stand by and watch as he [perhaps irreversibly] alters the balance of power between Congress and the Executive for the duration of the war on terror.

[idontknow]

Woof:
Instead, they sat on their hands, fat dumb and treacherous.
Thanks for responding. Your point seems to imply that yes, indeed, the administration was breaking the law and the democrats did nothing about it. I basically agree with you. There should have been an effort to address privacy issues surrounding this. Why was there no effort to initiate a process where judicial review would exist. Why reauthorize every 45 days, applying a temporary solution to a new aspect of intelligence gathering.

Technology is sure to progress further. If the government responds to new technologies without establishing new official protocols we'll see future administrations using new technologies without oversight and claiming the old laws just didn't apply. Does that sound far-fetched?

[Wonderland]

test

[Sue]

I don't know,

To avoid what is now happening. Discussing classified intelligence gathering on the front page of the NYTs.

[Wonderland]

Extraneus:

"By what authority do the armed forces have the right to shoot down a hijacked US airliner full of US citizens flying in the US, for example?"

Naturally, the President has the authority to use all necessary force to prevent an imminent threat to the national security. So he could order the plane to be shot down.

Likewise, law enforcement has authority to use all necessary force, including deadly force, to prevent an imminent threat to life and limb.

So there's a difference between (a) shooting a suspected US citizen terrorist while he's in his home planning an attack and (b) shooting him as he walks into a mall strapped with TNT.

In the case of invasion, the equation certainly changes. The Constitution, for one, allows suspension of habeas corpus in such a case. So once the writ gets suspended, citizens are on noticfe that their rights were more precarious than during a non-invasion situation, and they should steer clear of any appearance to to be working with the invaders. And in the case of an armed invasion, no doubt Congress would give the President full power to repel it.

But seriously, our current situation is nothing like that, so the comparison is inapt.

[boris]

There is no reasonable interpretation of the AUMF that yields the result of: you can bomb, kill, arrest, etc., but you cannot wire tap.

Are you arguing that, under the AUMF, the President has the ability to shoot missiles ...

At say a hijacked airliner ? Even before AUMF ? Oh yeah.

so the comparison is inapt

Then why did you bring it up ???

[Wonderland]

hi boris, welcome.

And thanks for splicing my quote to subvert its meaning, taking it out of context, and failing to read the subsequent posts.

Good work.

[boris]

So what you're actually saying (sorry for the misunderstanding) is that wire tapping is only allowed once the terrorists are walking into the mall with the explosives strapped to their bodies.

Ok, it's all clear now.

[Cecil Turner]

The President is claiming that Congress, in passing the AUMF, did something that no honest Congressperson could say they knew they were doing.

Hopefully they'd be honest enough to admit that, by declaring war, they were materially adding to the President's constitutonal authority under Article II. You'd also hope they'd be bright enough to see that it might have unforeseen consequences down the road.

didn't bother to seek Congressional approval for -- or, in any meaningful way, inform the proper oversight committees

If I were the guy making the decision on the next hush-hush program, I don't think I'd be arguing to expand the number of people informed.

There is no legitimate question that Congress has the power to set standards for detaining and punishing enemy combatants.

And they are welcome to do so. However, as long as they make general approval noises and leave it up to the Executive, the President has the authority and the duty to do it as he sees fit. And it's worth noting the Executive has some inherent authority in this area, though the boundaries may not be perfectly clear. Again from Quirin:

An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. It is unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation. For here Congress has authorized trial of offenses against the law of war before such commissions.

[maryrose]

I too have enjoyed this discussion and I think Wonderland that you would prefer a stronger Congress and a weaker presidency at least for the next three years. There well may be some adjustment in that area, we will just have to wait and see. But for the present I am comfortable with the program as it is currently being operated. I see no wrongdoing here.

[Tom Bowler]

There's an awful lot of speculation about what's really been going on. Here's the version I like best:

I think everybody concurs that the President has the constitutional power to order monitoring of international phone calls for the purpose of gathering foreign intelligence. Where it get's dicey is when the international phone traffic yields tips on potential domestic targets to be monitored. I'm speculating that in many cases warrants were gotten through the FISA court, but in some instances for sake of expediency they were not. It's not a big stretch to say that when international traffic provided the tips to domestic sources of foreign intelligence, those domestic sources then fell within the constitutional reach of Presidential intelligence gathering. In those cases where warrants were not gotten, Congressional leaders in the appropriate intelligence committees were briefed.

Now we're watching Democrats nitpick that there weren't enough Congressional leaders briefed. There should have been more. But would that have made it OK? Not according to Wonderland:

Bush and his defenders seem to be arguing that so long as we are at war with terrorists, the President can do anything he deems necessary to that war, and the only recourse for Congress is defunding or impeachment, and the only recourse for the populace, an election. I just don't buy it as a legal proposition.

But some Congressional recourse was available, in that leaders who were briefed could have expressed their concerns. I think only Rockefeller did so, in a letter that had a distinctly CYA ring to it. Democrats now wish that more were involved in the briefings, as if to say that then a critical mass of collective backbone would have been achieved, so they could have raised their concerns. Instead they were leaked to the Times.

[Wonderland]

Cecil:

There is no legitimate legal argument that the McCain bill's detention regulations are not binding on Bush. Yet Bush is arguing just that -- that Article II allows him to "waive" the provisions when he deems ist necessary for nat'l secuirty purposes. It's preposterous. That was my point, your claims of inherent authority in the absence of Congressional action notwithstanding.

[David Walser]

Wonderland - In prior posts you stressed the purpose of FISA to protect US citizens from warrantless eavesdropping. I did not mean to avoid that aspect of this issue, but did not have time to address the question at the time. I still don't have time to produce the relevant cites, but rather than continue to defer addressing your point, let me just state my arguments (without the desirable support).

First, I agree that Congress has a greater constitutional interest in protecting the civil liberties of US citizens. How, then, should we balance the interests of the two branches of the government? The Supreme Court has addressed this question partially in a case involving domestic security matters. There, the Court said the President's Article II authority did not allow him to spy on domestic targets FOR DOMESTIC SECURITY REASONS. (The Court specifically did NOT address this question in the foreign intelligence context.) The Court's reasoning addressed many of the concerns the current Administration's critics are raising: Domestic security is such a nebulous concept it could easily be stretched to allow the President to spy on political opponents. The potential for mischief, in the domestic context is too great to allow any Administration unfettered authority in this area. (Note: That may be true in the foreign intelligence context, too. The Court refused to say so and in refusing indicated that the two situations are different enough that what applies to one need not apply to the other.)

Given this ruling, I think it's clear Congress can regulate the President's power as it relates to domestic security matters. However, that has not, historically, prevented the President from conducting warrantless searches inside the US of US citizens. In the case of Aldrich Ames the Administration listened in on his communications and searched his home without bothering to ask a judge's permission. This was not considered a violation of Ames' 4th Amendment rights nor a violation of any statute. Why? Because what was done was "reasonable" under the circumstances (we wanted to know if he was spying for the other-side without tipping him off we were suspicious). If the President has the Authority to break into someone's home for foreign intelligence purpose during a time of peace, I think he has the authority to listen in to calls from outside the US to people inside the US for the same purposes in a time of war.

As to the argument that, if we allow this NSA program to go on, we might as well shred the Constitution. That's hyperbole and not good hyperbole at that. Based on the media reports (as opposed to rank speculation), there is no reason to believe that this President is doing anything nearly as dangerous to civil liberties as past Presidents have done. What NSA is doing pales in comparison to suspending habeas corpus or locking up Japanese Americans. It also pales compared to what was done to Mr. Ames. If our republic survived those episodes, I am quite confident it will survive this, too.

[Wonderland]

Tom:

A) Your statement -- "In those cases where warrants were not gotten, Congressional leaders in the appropriate intelligence committees were briefed" -- is incorrect. The Gang of Eight was only secretly briefed on the existence of the program, although how many details were revealed is still the focus of some debate. But in no way were Congresspersons briefed about every single interception that took place without a FISA warrant. No one has ever claimed that that occurred.

B) It seems you're missing the entire point: Congress had already passed a law, FISA, which covered exactly the sort of domestic interceptions you say probably occurred. The questions are whether FISA (1) stopped applying to those taps because of the AUMF or (2) if not, whether FISA is an unconstitutional encroachment on Presidential war powers. In other words, outside of the Gang of Eight, Congress didn't even realize that "recourse" was needed, because they didn't know FISA wasn't being followed. Why nobody in the Gang of Eight said anything is up for debate, but it is undisputed that (1) they were required to keep completely silent about what they had heard and (2) were not experts on the legal questions involved; and it is debatable whether (3) they knew the relevant details of the program; and it is perfectly clear that (4) they are spineless weenies. But their spineless weeniness doesn't make Bush's actions valid as a matter of law.