Memeorandum


Powered by TypePad

« Leadership That's Shirking | Main | Tim Russert Brings It On »

February 08, 2006

Comments

Anonymous Liberal

Tom,

If I'm reading your tone correctly you seem to be mocking Cheney and agreeing with Wilson that there needs to be real oversight here.

If so, kudos to you.

danking70

Congressional Oversight?

I feel that we need to find out who leaked the NSA program to the NY Times first (Rockefeller's name continues to come up in speculation) before something like that gets decided.

And I keep getting reminded about Rock's memo about politicizing National Security.

Appalled Moderate

The more secret the program, the more some independent oversight is required, as the usual fear of "How would look on the front page of the Times" is less and less credible.

On the flip side, those who would leak deserve some fairly draconian punishment. Maybe we could structure the leak laws such that a program properly submitted to congressional oversight that gets leaked is subject to 15 years in jail without possibility of parole. (And clarify that there is no reporter shield for accepting such a leak.)

TM

...greeing with Wilson that there needs to be real oversight here.

Well, my main talking point has been The Silence of the Lambs - after four years of nodding agreeably, Congress deserves a Claude Raines award for their "Shocked, shocked!" reaction to the NSA eavesdropping.

Rick Ballard

"15 years in jail without possibility of parole."

That seems rather cruel in Rockefeller's case. He's no spring chicken.

maryrose

Appalled Moderate:
Good luck getting provisions like that passed by dems or approved by the ACLU. They would scream bloody murder about undue or unfair punishment.
" the more secret the program the more some independent oversight is required"
Why would that be true. If it's secret we don't want a bunch of people overseeing it because it ruins the effectiveness. The top Dem on the Intelligence appears not to be able to keep his mouth shut and is now accusing Bush of saying too much when he defends the program. Trust the Rock with oversight-not in ythis lifetime. He's all about gaming political points of the intelligence committee. Independent review- dems will want an equal number of seats at the table and for my money because they don't appear to understand the real danger, they can't be trusted at this time. Except maybe Lieberman. Kerry would want to jawbone with all his European friends in Davos about all our secret programs.

Appalled Moderate

maryrose:

Substitute GW Bush with Hillary Clinton.

Still sure about not wanting that oversight?

Not sure the FISA override would qualify under my hypothetical bill, as it does not sound like the senators had much in the way of oversight.

Seriously, this war we're in is going to go for a whole lot longer. We need some institutions in place that provide some checks and balances, yet are still flexible.

Lew Clark

I don't know whether Wilson has gone over to the other side or is being clever. stringent call for congressional oversight. Process is put in place that looks just like the one that is presently in place. then a "go away, you got what you have been screaming". When I carried a top secret clearance, it had to be renewed every five years. The investigation was the same as my initial for my initial clearance. my question is, who is granting Rockefeller his clearance, and why haven't they been fired for doing such a poor job.

There are members of the House of Representatives who have criminal convictions and are not cleared for classified information. We have always considered the Senate above that. maybe it's time we called a spade a spade and investigated a few senators. And only allowed those on the Intelligence Committee that can pass the same muster I did.

The joke we had in the “community” when Bill Clinton became a criminal in Arkansas. Why wasn’t Clinton’s clearance pulled? Answer: that would make Algore the CiC and there ARE things worse than “Slick Willy” in charge.

Gary Maxwell

Not only that I am pretty certain the Leahy in the Senate had his security clearnace lifted awhile back for his inability to keep his yap shut. They are politicians for Christ's sake.

boris

the more secret the program the more some independent oversight is required

The must be why special forces covert opps always have a judge along to "oversee" the legal rights of the targeted freedom fighters. Never know when those over the top trained killers might go Jack Bauer on some poor defenseless terrorist and intimidate them into revealing too much information.

boris

Substitute GW Bush with Hillary Clinton.

The 1st Clinton co-presidency was not constrained by oversight and another one would be even less so. Lack of oversight was not the problem with the Clintons.

A Clinton giving serious attention to national security would be something new. Abuse of authority would not.

Dave in W-S

In principle, checks and balances are a good idea. The rub comes when you take highly secret intelligence and intelligence gathering programs and open them up to political operatives.

Congress has always been leaky. The very nature of the beast means that Conressmen, Senators and staffers use anything at their disposal to gain political advantage. That is what they do and why they get elected. The executive branch has always been cautious about how much detail and especially which details to share with Congress. The real truth is that when intelligence is compromised and especially when intelligence operations are compromised, real people die. Not politicians, but real people somewhere in the world.

Another point for your consideration is this. For intelligence workers and military personnel to acquire a Top Secret clearance (the minimum necessary for dealing with this kind of information, no doubt), an exhaustive investigation is required. If one is not absolutely squeaky clean, going back until the dawn of time, the clearance is not granted. What does it take for an elected Congressman or Senator to be eligible for access to that kind of information? One more vote than the other guy. Are some of them legitimately trustworthy? Doubtless. But I can name a long list of Congress critters I wouldn't trust with the coffee fund, much less information that is critical to our national security and, on a human level, to the continuing existence of our people out there on the edge.

Should there be oversight? Of course. The question is by whom. Congressional demands to the contrary, I am not convinced that laying out the guts of NSA programs for semi-public debate is at all wise.

I see this whole deal as a power struggle between the legislative and executive branches. Not so much Republican vs. Democrat, although that enters into it, but Congress vs. Executive. Good legal arguments have been layed out that the NSA program is within the scope of Executive authority and therefore legal. If so, subjecting the program to the control of Congress, or to the oversight of a Congressional entity, would shift a degree of power from the executive to the legislative. That struggle has been going on in Washington for over 200 years and will doubtless keep on going. The battles always play out as battles over the public welfar, or something like that, but it's always about power and who controls it.

Rick Ballard

Gary,

Leahy had his clearance lifted and was booted from the Intelligence committee for his leaks in the '80's.

AM,

As Boris notes, the Hillary scare mask is non-functional. The default position on her is that "ethics" are entirely theoretical and subjective wrt any actions which she might contemplate.

I need real examples of misuse or abuse before I could contemplate any oversight which impinged upon the performance of the program as described. There have been none offered to date and Congress (as a whole) has not displayed the good sense that would inspire confidence in their ability to keep their mouths shut when a temporary political advantage might be gained. As long and Clinton, Leahey, Leavin, Rockefeller, Boxer et al ad nauseum hold seats I will hold that view.

Extraneus
Members of Congress "have the right and the responsibility to suggest whatever they want to suggest" about changing wiretap law, Mr. Cheney said. But "we have all the legal authority we need" already, he said, and a public debate over changes in the law could alert Al Qaeda to tactics used by American intelligence officials.

What he might have interjected here...

"So we have time before doing anything drastic which could harm our ability to keep these matters secret. Perhaps what might make sense is to wait for the ongoing leak investigations to uncover whether any of the leaks came out of the Congress first. It's possible we could short-circut that with a polygraph program if we determine the need to expedite the debate. At any rate..."

"It's important for us, if we're going to proceed legislatively, to keep in mind there's a price to be paid for that, and it might well in fact do irreparable damage to our capacity to collect information," Mr. Cheney said.
Appalled Moderate

Rick:

I agree that you would have to have some mechanism for keeping the Pat Leahys of the world quiet, or something like FISA's judges to provide the oversight. That's why I suggested some pretty awful sentences for leaking, and a clear legislative statement that there is no right for a reporter to withhold information on who leaked. Since it sounds like case by case review is utterly impossible, some kind of programmatic review is what's needed.

But the problem is that folks with power tend to use it for purposes other than those intended when the power was granted. The sorry history of domestic wiretaps and domestic political abuses led to FISA. there is no reason to believe that some unfettered President in the future would not indulge in similar abuses.

Dave:

Nice post. I take your point that part of this is the old Congress vs President controversy. I just don't think it will go away quietly this time without some kind of deal being reached. Also, I admittedly have a problem simply "trusting" the executive on civil liberties for the next 50 years.

On your point regarding the dubious pasts of our elected reps, I am not sure the CIC, given his past, or the prior CIC would have received a Top Secret clearence. And, I think the threat of a stringent jail sentence, plus the useful precedents Fitz is setting on the ability of the press to shield leakers, might deter the Leahys/Rockys of the world. The threat of jail might really concentrate the mind of these people.

Cecil Turner

I agree that you would have to have some mechanism for keeping the Pat Leahys of the world quiet, or something like FISA's judges to provide the oversight.

In the first place, if we're going to insert the Judiciary into warfighting, this looks like it needs a Constitutional rewrite to change the separation of powers. In the second, it seems to me the premise is flawed . . . nobody is suggesting strict oversight of all the other black programs conducted by the Executive, why are we insisting on installing a sieve on our SigInt security system?

That's why I suggested some pretty awful sentences for leaking, and a clear legislative statement that there is no right for a reporter to withhold information on who leaked.

After we put someone in jail for this leak, I might take that position seriously. Until then . . .

Anonymous Liberal

Well, my main talking point has been The Silence of the Lambs - after four years of nodding agreeably, Congress deserves a Claude Raines award for their "Shocked, shocked!" reaction to the NSA eavesdropping.

I think that's a fair point, Tom, but it strikes me as being of limited utility. After all, there are really only about 5 or 6 Democrats who had any clue this was going on. And even with those 5 or 6, there are alternative explanations for their lack of pushback at the time, including 1) rules regarding secrecy, 2) the cryptic nature of the briefings, and 3) being scared of Bush's popularity. These are not justifications, but they explain why someone might not make a big stink even if they thought the program was illegal all along.

Dave in W-S

AM,

I don't disagree with you on either the need for some sort of accomodation or on a healthy distrust of a too powerful executive. Re: the dubious ability of many elected officials to qualify for a high level clearance outside of their position: That is why the Executive Summary was invented. Intelligence officials do not normally provide operational details or nuts and bolts of how information is obtained outside of an absolute need to know basis. Executives don't usually want that, anyway. They may want to know in general terms how we got a piece of intel, but they are more concerned with the information itself, its accuracy and how it effects their decisions.

I suspect that the NSA program as briefed some 30 times to congressional oversight people fits those general parameters, albeit including legal issues, as well. I further suspect that the ultimate deal will be not far from that profile. Maybe a little more meat, but very little below the broad stroke level. Elected officials do not generally have the technical expertise to need more than that in any discussion of technical intelligence. Nor do they need to get into the nuts and bolts of things, although that seems to be at least part of the demand around the Hill.

clarice

AM, the FISA judges themselves leaked to the Washington Post.

I think this may be a put up or shut up ploy--wherein those who remained quiet about the program because they knew it was necessary and then leaked about it for partisan purposes will sometime around the 2006 election be forced to vote for it.

Wonderland

I forget which Senator pointed it out -- maybe Rockefeller -- but the full Intelligence Committee gets briefed on every single signals intelligence program run by the NSA, except for Bush's secret one.

How does this make sense? The Committee members are trustworthy enough to know about programs that target China or Iran -- but they can't be trusted to keep quiet about one that targets (in part, at least) Americans, i.e., the very people they represent?

I mean, how is it that the Intelligence Committee is briefed on super-secret foreign intelligence collection programs targeting foreign signals for which the President very likely has exclusive Article II authority, but not on intelligence collection programs targeting signals emanating to and from Americans in America, the regulation of which is clearly within Congress's Article I powers?

Appalled Moderate

Cecil:

Part of the problem is that the executive simply scrapped FISA without any consent by Congress. (The argument that certain general legislation provided that consent is hooey.) It's hard to categorize that as anything but exta-legal behavior without restraint. Since it's war, and privacy is only a constitutional right when sexual activity is involved, I am not losing much sleep over what has been revealed. But it's no way to run a railroad, and if the battle against Islamic Terrorists is the 50 year project it appears to be right now, I don't want the executive to get a blank check for the next 50 years.

As for jail on the leak -- I am for that. And now that Fitz has established that reporters ain't got no right to hold back the names of their sources, I expect that someone really might go to jail for this.

Syl

Liberals here (I still consider myself one in many areas) would be wise NOT to (1)demand too much oversight nor (2) demand that we make the program 'legal'.

Oversight is micromanaging our national security. That is dangerous. We cannot fight a war with lawyers.

And I don't want this program to be made permanently legal.

Folks, wise folks, know that corruption happens. We catch it and prosecute it. I honestly believe the Bush administration is using this program solely for the purpose they say they are. But even if we get an administration we don't trust, so what? We'll find out and blast them if they do something funky.

The problem our country has is a serious one. The '70's was an overreaction to previous corruption and overzealous wiretapping. This overreaction has hindered our government from doing what it is required to do by our Consitution. And that is ensure the safety of the American people.

We do need a bit of change in attitude here. The Patriot Act is a course correction and I think that is enough. We don't have to go back and make surveillance legal again.

Let the Authorization to Use Force and the powers invested in the Executive cover it for now.

IMNOSHO

AppalledConservative

The fewer lawmakers, not to mention their staffs, who know the nuts and bolts of national security programs the better. Congress leaks like a sieve--always has, always will. Perhaps if we start expelling members for leaks that come from their offices and send the leakers themselves to prison, that will change. Or not.

Either the Executive has "all the legal authority" it needs or it doesn't, but in any case Congress is not the arbitor of such authority.

Is it possible that Rep. Wilson pushes for Congressional hearings because in her vision of such hearings she looms large?

Rick Ballard

AM,

"Quis custodiet ipsos custodes?"

Always a worthwhile question but doesn't it have to devolve to the electorate? I can come up with a number of Democrats whom I would never vote for but whom I don't distrust just as I can list some Republicans who are untrustworthy (hear that, John?). I don't believe that the war will last 'forever'. When we're done with Iran, the state sponsorship of terrorism as a tactic will be filed away again. It has not proven to be as effective as advertised. Iran's turn is coming fairly soon, quite possibly, in less than a year.

I just cannot see layering oversight on a matter requiring quick reaction as being worth the effort. I would be disposed to extremely harsh penalties being imposed for abuse rather than give the legislature another lever on the executive.

Truzenzuzex

Appalled Moderate said:

...And, I think the threat of a stringent jail sentence, plus the useful precedents Fitz is setting on the ability of the press to shield leakers, might deter the Leahys/Rockys of the world. The threat of jail might really concentrate the mind of these people.
That would be nice, but it was illegal when Leahy sprung a leak, and he's still around.

Look, the liberals are going to leak. They oppose the type of circumstances that require strict secrecy, and many of them (especially politicians) would relish the publicity of a trial if they leaked details of a secret program they thought would be unpopular with enough Americans. The would beat their chests and claim to be "whistleblowers" and "speaking truth to power" and so forth.

Pretending that Congress will actually pass tough laws that could land them in jail for a juicy leak that might spill the guts of their political opponents is not realistic. In an ideal world, everyone would place their country over political ideology, and we wouldn't have to worry about it. But experience has taught us otherwise.

Since it sounds like case by case review is utterly impossible, some kind of programmatic review is what's needed.
My understanding is that we already have programmatic review of the NSA program. The question is who is doing the reviewing. Those who fear the President or distrust him will insist that the existing review is insufficient, but that doesn't necessarily make it so.
Appalled Moderate

Truz:

The problem with such oversight as there is over the NSA program is that (i) a law on the books was displaced and (ii) those with oversight work for the president, so they are unlikely to raise much in the way of concerns. Institutionally, this makes me uncomfortable. The controls are weak, and too easy to override.

Rick:

I understand your point, but it depends too much on a hypothetical for my taste. (Hope you are right in a way that does not give us "Iraq, but worse")

Syl:

I sympathize with your point, but think it really requires FISA's absolute repeal.

Soylent Red

There is a reason that NSA's actions are directed from the Executive branch. Bush, Gonzalez and all the rest are quite right in their arguments that the legal authority exists, FISA not withstanding.

So, IMO, Congressional oversight over individual programs would be supra-Constitutional. Not un-Constitutional, just un-necessary.

Furthermore, let's be realistic on security clearances when it comes to representatives. Any security clearance a Ted Kennedy or Pat Leahy has is window dressing at best. These guys no more dream up their policy statements, speeches, or legislation than I do. It's all done by a private army of staffers who, as far as I can tell, do not hold ANY kind of security clearance.

Thus, because Uncle Billy donated a lot of money to a campaign, some Georgetown grad student will have access to the nuts and bolts of operations in the most double-secret agency we have. Probably not such a swell idea in light of the fact that we can't seem to shut up the legitimate clearance holders.

Congressional oversight, for both practical and Constitutional reasons should be limited to general policy and finance.

boris

the executive simply scrapped FISA

A RATHER immoderate assertion given what details are known. FISA warrants are still used for domestic terrorist suspects. The NSA program targets international calls when at least one end is a suspect.

That is not "simply scrapped". Calling BS on your moniker.

boris

Congressional oversight, for both practical and Constitutional reasons should be limited to general policy and finance.

This is correct. The reason the executive was invested with primary war fighting powers was the dead on observation that war by committee is a recipe for defeat.

Barney Frank

Rather than going through the cumberome process of congressional oversight maybe the NYT and WaPo reporters could just be given full continuing access to all of the details of the program and its results. That way we cut out the middleman, it ends up where it would have anyway, only sooner, and congress can just read the morning paper if they want to perform oversight.

bud

I don't know who said it, but it describes *exactly* why the administration kept "Congressional oversight" to as limited a group as it did:

"The most dangerous place in the world is between a Congressman and a camera."

This is not partisan. Both sides of the aisle have blurted out information that they were told in confidence.

This hearing may well be necessary - IMHO, mainly because of the bleating of the media - but I guarentee one outcome - some secrets affecting national defense *will* be broadcast.

email is human readable - aloud

Cecil Turner

It's hard to categorize that as anything but exta-legal behavior without restraint.

Oh nonsense. The Executive is a co-equal branch of government with primary responsibility for national defense, executing that authority in accordance with a lawful declaration of war (equivalent) by Congress. Trying to stretch some half-applicable statute as binding upon traditional Executive war powers (intercepting enemy communications) is silly.

But it's no way to run a railroad . . .

The leakfest from Administration critics is no way to run a railroad. And the proposed corrective action (trust more of them with our nation's most critical secrets) does not impress.

Lew Clark

If every classified national defense program has to go through a "Samuel Alito confirmation hearing" political strutting and preening show, then we need to call up the Mullahs in Iran and surrender today!

Those on both sides who were briefed on the NSA program knew exactly what was going on (their protestations to the contrary are BS). It wasn't until the "leaks" that the political show got taken on the road.

Appalled Moderate

Boris:

Fair correction -- let's say "scrapped with respect to international phone calls". We all let our rhetoric outstrip our inherent moderation from time to time. My basic point -- the Executive rewrote statute to suit their needs -- holds. And that does bother me some, because we cannot always rely on the wisdom of our Presidents.

Cecil:

If you are asking me to choose to either trust Dick Cheney not abuse his power, or Pat Leahy not to run his mouth, frankly you've got me in a pickle. If Pat would really face jail time for blabbing out of school, though, I think he'd shut up. In any event, I'd like to see this proposition put to the Democrats and watch their reaction about big time jail sentences for leakers. It might be instructive

Lew:

Oversight does not mean klieg light hearings and Ted Kennedy blathering about dangerous, subvversive Princeton alumni organizations. It means a closed door meeting where members are briefed on what's going on and their concerns are listened to. Goes on all the time.

Cecil Turner

If you are asking me to choose to either trust Dick Cheney not abuse his power, or Pat Leahy not to run his mouth, frankly you've got me in a pickle.

That looks like a pretty easy decision to me. But the real issue is what the law is (predominantly a question of what the Constitution says is the appropriate balance) . . . and on that note the only on-point decision is In re: Sealed Case No. 02-001:

We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

eb

One of the wonderful aspects of the form of our government is that we do not have to trust someone in power. Normally, the administration cannot spy on me, lock me up for spying, demonstrating, or even criticizing the government without an impartial judge agreeing that the government has good reason to do so and has done so properly. This prevents bad operators on the state or federal levels from abusing their police power and using that power against political adversaries or critics.

George Bush proposes to do away with that system and insists that we simply trust his administration to do the right thing.

PuhLeeze!

He fails to explain why this is necessary, other than to say "Its secret." and "9/11 changed everything". These are in reality not reasons at all, and certainly not good reasons to alter our form of government. The AG never did explain why a warrant under FISA was not usable for these searches, other than it was a pain in the ass and they preferred not to get them.

I would not trust any policeman, mayor or administration with the unlimited police power Bush claims. And given the current administration's track record of sacrificing the truth in exchage for image, posturing for political gain and machinations for the good of the party at the expence of good government, I sure as hell don't trust this administration!

George and Dick are picking this fight on purpose and we had all better hope they lose.

richard mcenroe

Congressional Oversight?

First, get Leaky Leahy out of office. He's already killed one US intel agent.

Secondly, get John Kerry out of office. He's just waiting for his turn.

Third, get Teddy out of office. He's obviously DT'd to the point where he can no longer control what comes out of his mouth...

Who else, first?

boris

unlimited police power Bush claims

What unlimited police power? If you get a call from Atta in Florida and there's a legal FISA wiretap on Atta, the NSA listens to the conversation. If they find the conversation interesting, they'll use it to get a FISA warrant to wiretap you.

If you get a call from OBL in Iran, the NSA wants to know what you're talking about. If they find the conversation interesting, they'll use it to get a FISA warrant to wiretap you.

The NSA has never needed a warrant to wiretap OBL in Iran. The ony new part is they don't hang up if he calls you.

That's it. Big deal.

maryrose

Today in the news an American was exposed as having communicated with Zarquawi . Glad we intercepted that conversation. Stop please stop calling it domestic spying. That's what Kennedy and Hoover did to Martin Luther King. Dems think because they did it GWB is doing it. It's called terrorist surveillance.
" What if GWB was Hillary?"
If enough people are stupid enough to votre her into office than we are stuck with it. Her being the co-president didn't stop her from interfering with the IRS and Cisneros and the Barrett report. Hil and Bill had over 300 FBI files they were perusing illegally in the White House. You get the government you elect. I trust President Bush and Dick Cheney to keep us safe by limiting the number of leaky people who get access to classified info. Jane Harman-yea I trust her because she is a sraight shooter and acknowledges the need for the program. Plus she is not a leaker unlike our pal Rockefeller who shuts down the Senate on a whim and trumps up accusations that are irrelevant.

Aaron

Syl makes a very good point. Bush is only arguing this is legal due to the AUMF (?) state of war situation.

Thus this wiretapping has a sunset clause that whenever Congres decides the GWOT is over, they can flush this program.

Seems reasonable to me.

Cecil Turner

This prevents bad operators on the state or federal levels from abusing their police power and using that power against political adversaries or critics.

There is a difference between "police power" and wartime authority of the "Commander in Chief." The latter is rarely exercised against citizens, but in rare occasions for those who align themselves with our enemies, and only in clearly military venues. Hence, for example, when Mr Haupt snuck into the country from a German U-boat, his citizenship did not entitle him to a trial by jury, and he was convicted by military tribunal.

George Bush proposes to do away with that system and insists that we simply trust his administration to do the right thing.

More nonsense, reminiscent of the claims by those on the left that this President made up the term "unlawful combatant" and was rewriting the Constitution. In fact, the applicable laws of war are centuries old, and this Administration is if anything lax in enforcing them. Similarly, there is ample precedent for the authority of the Executive to prosecute a declared war--authority which definitely includes intercepting enemy communications.

He fails to explain why this is necessary, other than to say "Its secret."

If the President needs to explain why we need to spy on the enemy in wartime, we've got a problem. (And it's not the President.)

ajacksonian

Congress actually HELP on the war on terror?

Unfortunately they are sheep, too spineless to use the warmaking powers at their disposal. Just leaving it all up to the Executive when the Executive branch has told them that fighting terror goes beyond law enforcement, use of the military and nation building.... hmmmm... what could Congress do?

I guess their hands are thoroughly tied... or maybe just sheep in the night hoping no other wolves are around.

I will no longer vote for sheep. Or pigs, rife with fat...

owl

Good grief TM, you have to be faster on your updates! You were busy updating and I was busy burning the wire to Ms Wilson. Oh well, I still stand by those harsh words.
A discussion about the Overseers. Those faceless Overseers (some occupy lifetime jobs) sit on committees that trash good people, employ staffs to write books of law and point fingers when something goes wrong. Not their fault, Democrat nor Republican. They the Kings and Queens of Oversight.

I pointed out to Ms Wilson that I would hold her as Overseer, responsible when we get hit next. Think I will go back and offer Barney's good suggestion of Rather than going through the cumberome process of congressional oversight maybe the NYT and WaPo reporters could just be given full continuing access to all of the details of the program and its results. That way we cut out the middleman...

Rick Ballard

Tom,

Dead link on Cheney/nerve gas.

Anonymous Liberal

Cecil writes:
But the real issue is what the law is (predominantly a question of what the Constitution says is the appropriate balance) . . . and on that note the only on-point decision is In re: Sealed Case No. 02-001
I realize this is the favorite talking point among Bush's defenders, Cecil, but have actually read In re Sealed Case? It could not possibly be less "on point."
Sealed Case was actually dealt with the opposite question. It dealt with the issue of whether FISA (as amended by the Patriot Act) gave the president too much surveillance power, i.e., surveillance power that violated the 4th Amendment. The line that Cecil cites is merely a toss away piece of dictum meant to acknowledge that, prior to FISA, the president was allowed to conduct warrantless wiretapping. Sealed Case does not even come anywhere close to suggesting that FISA is unconstitutional (quite the opposite actually), or suggesting that the president may conduct wiretapping outside of FISA. Long story short, this case is not the authority Bush apologists claim it is.

Gary Maxwell

Well I should probably avert my eyes but I just cant. I want to see Cecil in ful cold fury deconstruct this one. the Bush apologist that he is of course.

Larry

AL: "...surveillance power that violated the 4th Amendment."

I want to see how you determined that, AL. I can think of at least a couple ways you are dead wrong. 1) If I am communicating with enemies of the USA, I am no longer a "people". I'm an agent of the enemy. 2) The 4th protects against UNREASONABLE searches.

clarice

AL--When they check your bags at the airport, do they have a warrant?
When you order something from abroad and customs opens the package, do they have a warrant?

When they photograph your license plate as you speed through the stop light, do they have a warrant?

When the local convenience store films you at the checkout counter, do they have a warrant?

clarice

MORE leaks from the DoJ and FISA Ct. http://www.washingtonpost.com/wp-dyn/content/article/2006/02/08/AR2006020802511.html

Lew Clark

The "loyal opposition" is going to have to settle on who George Bush is. Is he an evil genius (or a man surrounded and controlled by evil geniuses)bent on creating a totalitarian state, or he's a bumbling idiot with a really low IQ. I think so far on the "domestic surveillance" thing you'd better stay with bumbling idiot. Since not one person on his "enemies list" has disappeared, or even gotten a parking ticket. Sure he probably can't "disappear" Kennedy, Pelosi, or Dean. But not even Mother Sheehan, a nobody from Code Pink, someone in CAIR, George Soros' younger brother, somebody? Hell what's the use of "secret police" in a police state if your enemies are still getting first shot at Sunday morning talk
shows.

clarice

Heh--Maybe Shrum and Peter Hart can pull together some focus groups to help them decide. (BTW, more good news. It appears that like Kerry, Al Gore is stirring with presidential aspirations again.LOL)

clarice

I suppose they'll be fighting for Bayh to be a running mate--this year's silky pony. Though Edwards isn't giving up either..How many times can he do the Two America's thingy before the battery runs down?

kim

I'm persistently amused by the spectacle of Silky John weeping about Carolina mill jobs lost overseas: the same jobs Massachusetts lost half a century ago to Carolina.

The fact is that this administration is trustworthy to do this intelligence action but not all administrations can be trusted to use the abilities of Able Danger legitimately. All's fair in love and war, is a pat phrase with peculiar irony here. The main justification for this program is an ongoing war, but the love affair between the parties is a struggle which consumes even more passion than the Great War on Terror. What's to keep Able Danger from becoming a fair tool in that war?

So, what's the solution? Is it private data-mining operations even more powerful than the government's.

Heh, heh. Welcome to the 21st Century.
========================
============================================

Cecil Turner

The line that Cecil cites is merely a toss away piece of dictum meant to acknowledge that, prior to FISA, the president was allowed to conduct warrantless wiretapping.

Geeze, AL, imply I didn't bother to read the case (handy link provided, BTW), and then don't even bother to read the quote. "Prior to FISA"? What part of "FISA could not encroach on the President’s constitutional power" didn't you get?

kim

Another thought off the last one. Our two-party system is a long running marriage, with persistent differences, different agendas, and dependents forever to care for. One party now is claiming domestic abuse, and lying about it.
================================================

kim

Hey, c'mon, that's not cold fury; you're amused.
============================================

boris

piece of dictum

It's one of those rulings that seeks to clarify rules and boundaries. It wouldn't have been in there if they didn't want it to be used for guidance.

Claiming something "opposite" is just willful partisan pigheaded contrarian myopic blinkered peice of shictum.

(Can't do "cold fury" like CT but just thought I'd pile on)

kim

That pile is steaming with hot fury, or something.
==================================================

Anonymous Liberal

Cecil, Boris, Clarice, Larry:

I'm still convinced that none of you have actually read Sealed Case, at least other than that one line that Cecil quotes entirely out of context. Your comments betray a complete lack of understanding of what was even at issue in that case. In that case, the amicus parties (ACLU, etc.) argued that the amendments to FISA in the Patriot Act (which allowed for information sharing and did away with the "primary purpose" test) gave the executive branch too much power, i.e., the power to perform searches that didn't meet 4th amendment standards. The government argued that the amendments to FISA were constitutional. So the court was dealing with exactly the opposite question.

The line Cecil keeps quoting is merely a meaningless aside, which is obvious if you read it in context. Clearly that court, which only exists because FISA created it, was not suggesting that FISA was unconstitutional. The line merely states that "FISA could not encroach on the presidents constitutional power." They were not suggesting that FISA does, in fact, encroach on the president's exclusive powers. And there are zero cases which say that the president has the exclusive power to make rules regarding surveillance of American citizens in America. Zero.

Moreover, if you read the article in the Post today, it's pretty clear that these judges do not consider FISA unconstitutional and do suspect that the president's program is illegal.

boris

is merely a meaningless aside

Is this another one of your "ONLY" interpretations ???

It seems rather meaningful actually. There is a valid interpretation that FISA is constitutional where it does NOT encroach on executive constitutional power.

kim

And constitutional because it cannot encroach?
=============================================

Anonymous Liberal

It seems rather meaningful actually. There is a valid interpretation that FISA is constitutional where it does NOT encroach on executive constitutional power.

Boris, FISA, by its own terms, provides the "exclusive means" through which foreign intelligence surveillance involving U.S. persons in the U.S. may be conducted. There is nothing at all ambiguous about that provision. And it is the key provision of FISA. If these procedures are not exclusive, the law is meaningless. You can't have a law that says "you must get a warrant except when you don't want to." So FISA is either unconstitutional, or the President's spying program is illegal (unless, of course, you subscribe to the silly AUMF argument). And my point was that Sealed Case does not even come close to suggesting that the exclusivity provision (or any other part of FISA) is unconstitutional. It just doesn't.

maryrose

AL
THese judges and the Post - these are the last word on this? By whose authority? The Post says it so it must be the final statement. Many judges disagree on this, How many are Clinton Appointed? I realize some on the right are concerned as well. As for me- I feel safer knowing the program is in place.

richard mcenroe

Cheney's Threat: Ahhh, that was just Scooter again, with a can of talcum powder, ready to take another one for the team. What a standup guy!

boris

There is nothing at all ambiguous

And your inptertretation is inconsistant with the "meaningless piece of dictum" from the FISA court.

Sorry, the courts meaningful piece of dictum kicks you meaningless piece of shictum's ass.

kim

If FISA provisions are the 'exclusive means' by which "foreign intelligence surveillance involving US persons in the US"(whatever you mean there) then surely those provisions are updated by their writers as the need arises, that is, frequently. Right?
========================================

boris
We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.
Given the choice between what the FISA court actually says and the interpretation of a notorious shape shifting proponent of deconstructionism ...

If you continue to claim we're just TOO STUPID to understand that is completely wrong and meaningless ...

Well then expect some testiness on the subject.

boris

"you must get a warrant except when ..."

... that would encroach on the President’s constitutional power.

clarice

AL, I assure you that when this issue first hit the airwaves I read that case thoroughly and nothing I've read since then has changed my mind about it.

Perhaps you mgiht Posner and Sunstein's views on the FISA/NSA flap to get a dose of how two leading constitutional scholars view the issue. Frankly, I find their views more persuasive then some hack journo's or addlepated solon's.

Anonymous Liberal

If FISA provisions are the 'exclusive means' by which "foreign intelligence surveillance involving US persons in the US"(whatever you mean there) then surely those provisions are updated by their writers as the need arises, that is, frequently. Right?

Right. FISA has been updated numerous times over the years, and was significantly overhauled by the Patriot Act (which amended a number of key FISA provisions). At the time, the President said this:

Surveillance of communications is another essential method of law enforcement. But for a long time, we have been working under laws
[FISA] written in the era of rotary telephones. Under the new law [which amends FISA], officials may conduct court-ordered surveillance of all modern forms of
communication used by terrorists.

Anonymous Liberal

Perhaps you mgiht Posner and Sunstein's views on the FISA/NSA flap to get a dose of how two leading constitutional scholars view the issue. Frankly, I find their views more persuasive then some hack journo's or addlepated solon's.

You might want to reread Posner and Sunstein yourself, Clarice. Sunstein has said nothing about the constitutionality of FISA. His few blog posts have focused on the AUMF argument. And as for Posner, he has made it clear that he's only opining on the supposed policy aspects of the program, not its legality. You should read Posner's posts at the New Republic. They would make any true originalist or strict constructionist's head explode.

kim

So did the law allow what Bush found necessary to do and did have constitutional authority for?
==================================================

Cecil Turner

I'm still convinced that none of you have actually read Sealed Case, at least other than that one line that Cecil quotes entirely out of context.

Then you're an idiot (sorry, but there's no nice way of putting that)--the case is neither long, nor complex, and it's linked above--I've read it. I'm also getting tired of that "out of context" and "talking point" bit, which is untrue and marginally offensive.

It's true "sealed case" is not a question of the bounds of Executive power, but an examination of the limits of what Congress and the Executive together can wield (essentially, up to what the Fourth Amendment forbids). It's one of the scenarios Jackson envisioned in his Youngstown concurrence (though not the one more commonly quoted on the subject):

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.
The logical means of evaluating that authority is to take the President's inherent authority and add whatever Congress can delegate . . . which is what the FISA review court does in "sealed case." It's perfectly apropos to discuss that bit of reasoning, even though it was not the primary focus of the case and it's not a SCOTUS decision . . . because it is precisely on-point.

Further, many on the left have misconstrued the use of the word "opposite" in that bit of the opinion to mean "sealed case" isn't addressing that question. That's wrong. The point of "opposite" is that, in that instance, Congress is not attempting to limit the Executive's power, but is adding to it. But in any event, no legislation can have any impact whatsoever on the President's "inherent authority," exactly as "sealed case" held.

Anonymous Liberal

If you continue to claim we're just TOO STUPID to understand that is completely wrong and meaningless.

I never called anyone stupid. I just suggested that you hadn't read the case. That's hardly the same thing. If you have read the case, then your comments are disingenuous because they misrepresent the case pretty egregiously.

kim

If FISA did not allow it, then it did not apply and was rightfully ignored.

Why don't you put an MS in a Bottle and break it on the Rock.
==============================================

kim

I like that 'egregious disengenuosity'. Bite me off a bit of that .
==============================================

clarice

This is another case of the President's playing rope a dope. He advised the appropriate members of Congress about the program and kept them informed regularly of its workings. They assented by their silence. Then (it is obvious) that as the 2006 election approached Rockefeller and perhaps Levin and others leaked it to the NYT which predictably set off a firestorm. The President stood his ground. The polls showed the Dems misunderestimated the intelligence and pragmatism of the voters, but by then the Dems had once again stuck their feet deep in the shit for brains on national defense quicksand.

In the end, if Congress acts at all, it will be to revise the legislation to track what is being done. In the meantime, each debate on the terms of that legislation sinks the opposition deeper in that pit.
And BTW each time the "i" word is mentioned more broken glass Reps will make it to the polls in 2006 and more moderates will vote Rep.

The beautiful thing about the "idiot" President and rope-a-dope is that his opponents are so stupid, they can't stop themselves from playing the game over and over again hoping this time the result will be different.

kim

Jeeze, speaking as a subscriber to that silly AUMF argument, I'll let you take a look at yesterday's edition. Polly's only started her remarks, and they won't obscure the point, even though you try to trivialize it.

And geeze, don't look now but your slip is showing.
========================================

kim

Chip me off a chunk of that casino, Clarice.
===========================================

clarice

*chip, chip*--Here you go, Kim.. placing a $100 stack on the "idiot" to win.

Anonymous Liberal

Cecil, as your own comment above illustrates perfectly, the Sealed Case was dealing with the issue of whether the combined power of Congress and the executive, through FISA, violated the 4th amendment. The line you quote, therefore, is the paradigmatic example of dicta, i.e., it has nothing whatsover to do with the issue the court was presented with. Even the DoJ concedes that this line was pure dicta. Why are you even arguing this point?

All the court is stating is a simple concept: there a some executive powers that Congress cannot encroach upon. It does not suggest that FISA does, in fact, encroach upon those powers. We're talking about a decision by a court that derives its entire jurisdiction from FISA and that was, in that same opinion, ruling that the amendments to FISA in the Patriot Act WERE constitutional. To use this bit of dictum as evidence that FISA is unconstitutional is ludicrous.

And as for this:
But in any event, no legislation can have any impact whatsoever on the President's "inherent authority," exactly as "sealed case" held.

This is just flat out false. It totally misconceives the very concept of inherent power. Inherent power means that the president does not need to wait for statutory authorization to act. In other words, he is free to act in the absense of legislation on point. It does NOT mean he can act contrary to a duly enacted law. This is constitutional law 101. You are conflating two very different concepts. The president has inherent authority to do all sorts of things. For instance, prior to the passage of Title III, the president had the inherent power to conduct law enforcement searches. But no one argues that the president still has that power now that Title III exists. Only a small subset of the president's inherent powers are exclusive powers. And there are zero cases which suggest that domestic surveillance is an area of exclusive presidential authority. Zero.

Rick Ballard

Now Clarice, are you saying that that the Acme Democratic Political Strategy for Victory (as provided by Arlie K. Evor & Assoc.) has flaws? Let's not forget that Bob Schrum has signed off on this and that George Soros is putting big money behind the effort. These are very smart men with years of experience - who are we to say that the strategy is flawed?

You need to reread the section on Legalistic Pedantic Obfuscation in order to understand the underlying brilliance of the tactic being employed. Truly masterful.

boris

your comments are disingenuous because they misrepresent the case pretty egregiously

Since my comments have not addressed "the case" at all it's your comment that is disingenuous. (so there)

MY ONLY CLAIM ...

The statment FISA could not encroach wouldn't have been in there if they didn't intend it to be used for guidance.

(1) Incidental to the actual ruling ... ok
(2) Not part of the ruling ... ok
(3) Less than the weight of SCOTUS ... ok
(4) Doesn't mean what it says ... BS!

It means exactly what it says and in lieu of an actual ruling on point by the FISA court or SCOTUS it serves as a perfectly adequate data point to include for NET DISCUSSION which is what this is. It certainly carries more weight than the forked tongue "experts" who can change their opinion on a dime to align with Democrat partisan politics.


kim

Who says what's unconstitutional?
=====================================

Extraneus

I have to rouse myself (from the deep sleep these NSA program legality discussions always seem to tempt me into) to note again that the only method to the left's madness on this point that makes any sense to me is that it's is the laying of a defense for the leakers and NYT. If they can argue that the program was technically "illegal," or at least that the defendants thought it was, then maybe that could help their defense. I don't see why it would, since there's nothing in the Espionage Act or Title 18-798 that I can see which might allow that defense, and in any case they didn't avail themselves of the Whistleblower Protection Act, but what other logical explanation can there be? The more vehemently they argue the point, the more worried people seem to be getting about the prospect of trusting them with national security. So why would they do it if it's self defeating?

boris

domestic surveillance is an area of exclusive presidential authority

Enemy surveilance during war certainly qualifies. The term "domestic surveillance" is not consistent with the term "international communications". Neither is the 4th amendment.

clarice

It is brilliant if your aim is to drive the NYT into Court and bankruptcy , but if your plan is to win elections, it is of a piece with the Rove/Shrum/Soros prior endeavors.(Can an entire party be neurotic? Is there a new DSS classification for this kind of behavior? )

Anonymous Liberal

Boris,
I fully concede that the dictum from Sealed Case is a data point. I just don't think it's a particularly helpful one for the Bush administration. And I certainly don't think the Court in Sealed Case was suggesting that their enabling statute, FISA, is unconstitutional. There's just no evidence of that in the opinion, and it doesn't make sense in the context.

And please, stop pretending that this is purely a partisan issue, or a scandal invented by Democrats. In case you haven't noticed, everyday more and more conservatives are expressing serious concerns. In the Senate hearings the other day 12 out of the 18 Senators on the committee expressed serious reservations. Senators Brownback, Graham, McCain, Specter, Hagel, and DeWine are all on the record raising serious questions about the legality of this program. So have uber-conservative activists like Bruce Fein and Grover Norquist. Heather Wilson and Jim Sensenbrenner in the House raised serious concerns yesterday. This is not a partisan issue. If anything, partisanship is masking the degree to which people on both sides of the political spectrum our worried about this. I'm confident that loyalty to Bush is the only thing keeping many more Republicans with serious concerns about this from speaking out. And yet, despite Rove's heavy-handedness behind the scenes, many republicans are speaking out. So drop the charade. This isn't an empty partisan issue.

Rick Ballard

Ex,

I think that you're right - at this moment - but the original intent was very different - the Dems are desperately trying to find grounds for "impeachment" should they get the House back in the fall. In fact, they're so desperate that they disconnected the "potential blowback" meter some time ago.

Disconnecting it was a significant error - as we will see throughout the spring, summer and fall.

Go DoJ!

boris

To use this bit of dictum as evidence that FISA is unconstitutional is ludicrous.

Straw dummy again. FISA IS CONSTITUTIONAL where it DOES NOT ENCROACH.

It provides the executive with a method *when followed* to involve the criminal justice system which might otherwise be unable to process the "evidence" due to 4th amendment concerns.

For THAT EXPLICIT PURPOSE it provides a CONSTITUTIONAL function.

clarice

THEY disconnected the blowback meter,Rick? What the hell do you think I am,chopped liver? Regards,
R/S/S

boris

This is not a partisan issue

Twisted context. The experts changing their opinion depending on which party holds the White House are obviously partisan. Their OPINIONS are therefore worthless.

One suspects your Republican examples would express exactly the same concerns regardless of party, with perhaps some modulation of intensity.

That's why the statement of the FISA court, isolated from the partisan battle, carries more weight.

kim

There are already three parties and the Democrats are only one of them.
==============================

Cecil Turner

All the court is stating is a simple concept: there a some executive powers that Congress cannot encroach upon. It does not suggest that FISA does, in fact, encroach upon those powers.

It cites a very specific power ("to conduct warrantless searches to obtain foreign intelligence information") and goes on to say FISA can't encroach upon it. But I think you're in fact correct here, that FISA does not encroach on those powers, unless it is wrongly interpreted to apply to situations where it clearly was never intended to (e.g., in what you erroneously call "domestic surveillance": of overseas Al Qaeda communications when they happen to call--or are called by--someone in the US).

Only a small subset of the president's inherent powers are exclusive powers.

Exclusive or inherent, Congress can't take it away. If you're claiming FISA does that, then it's unconstitutional. Further, when talking of something that's as fundamental to the war power as intercepting enemy communications, the Executive's power approaches exclusivity.

Gary Maxwell

"...his opponents are so stupid, they can't stop themselves from playing the game over and over again hoping this time the result will be different."

Old joke but appropriate here. Republican and a dimocrat watching a western movie. Rep leans over and says "Bet you $10 the cowboy dies". Dim says "You are on." Sure enough in the next scene the cowboy is shot and killed. Dim reaches for his wallet. Rep gets sheepish look on his face and admits " I cant take your money, I saw the movie before." Dim pushes the $10 to him anyway. " No no go ahead take it. I saw it before too, and cant believe he dies again."

clarice

HEH!!

Well, speaking of the Dems. Polls show a precipitous drop in Hillary's! popularity ratings..Obviously she can't keep her mouth shut and run a "listening campaign" for President. And that means the blood is really in the water. Every jerk is lining up to run now. The conga line--pardon me debates for the nomination--will be even worse than the last time, and the nomination process bloodier and more costly and enervating..R/S/S , we know you are behind this. Come out and take a bow little feller.

clarice

And as the Dems keep crafting their terrorist Bill of Rights, the President unveils more details of thwarted attacks. http://www.breitbart.com/news/2006/02/09/D8FLMVH82.html

Can we hear the sound of quicksand sucking up those who planted their feet firmly in the quagmire? I can.

Anonymous Liberal

It cites a very specific power ("to conduct warrantless searches to obtain foreign intelligence information") and goes on to say FISA can't encroach upon it.

Wrong wrong wrong. The statement about encroachment is not nearly as specific as you claim. And, for the thousandth time, there is a world of difference between saying the president has the power to do something when there is no law and saying the president has the power to do that same thing when the law specifically forbids it. The court was not even coming close to suggesting the latter.

But I think you're in fact correct here, that FISA does not encroach on those powers, unless it is wrongly interpreted to apply to situations where it clearly was never intended to (e.g., in what you erroneously call "domestic surveillance": of overseas Al Qaeda communications when they happen to call--or are called by--someone in the US).

Are you serious? You really think FISA was not intended to apply to calls where only one party is in the U.S.? Because the clear language of the statute says otherwise. Even the Bush administration isn't making this argument.

Exclusive or inherent, Congress can't take it away.

I'm sorry, Cecil, but you could not possibly be more wrong on this point. There are literally countless examples of situations where Congress takes away inherent presidential authority. I gave you a good one before with Title III. Congress cannot take away exclusive executive powers, but virtually ever statute on the books takes away some inherent presidential authority. If you want to pretend that this isn't true, by all means go ahead, but literally no one familiar with constitutional law agrees with you on this point. You're just wrong.

clarice

AL, I beg you--do not give up this quixotic fight.Write Kos and Atrios and the entire gang. Damand impeachment hearings begin.

boris

You're just wrong

No, you're just wrong. When congress tried to give the president the line item veto, SCOTUS stepped in and said congress could not give away IT'S constitutional authority to the executive.

If it can't give away it's own, it certainly can't take away the executive's. You are simply flat out spouting BS when you claim it can.

The comments to this entry are closed.

Wilson/Plame