It’s amazing to think that the White House has yet to come up with a coherent and factually-consistent response to the NSA wiretapping scandal despite a lead time on the story of more than a year. Imagine if the medicare bill took up that much of their attention and still came out as awful as it did.
How incoherent has the response been? For me the iconic illustration will always be the interview in which former NSA Director Hayden, trotted out in an early go at defending the program, instead showed a less-than-passing knowledge of the fourth amendment. It’s hard to argue that you know you’re conducting legal searches when you can’t correctly cite the amendment which establishes standards for getting a warrant. Glenn Greenwald has a comprehensive list of defenses that rightwingers have tossed out so far and their respective rebuttals. I strongly doubt that anybody here will come up with a defense that hasn’t been floated already, so Greenwald’s FAQ should be a useful reference for anybody composing a reply.
The latest wrinkle in the NSA story concerns the question of whether a balance of power currently exists in DC. The Executive branch has pretty clearly stated that it has the wartime powers to do pretty much anything it sees fit, so the next move is up to Congress. Does Congress exist for any reason other than dispensing federal cash to campaign donors? Some Republicans, notably Senate Intel Committee chairman Pat Roberts (R-KS) and Mike DeWine (R-OH) clearly don’t mind declaring themselves superfluous. Other Republicans, notably Sen. Judicial Committee chair Arlen Specter (R-PA) seem to have a vestigal sense of self-worth:
[S]everal key Republicans, including House Intelligence Committee member Rep Heather Wilson of New Mexico and Senate Judiciary Committee Chairman Arlen Specter of Pennsylvania, say the NSA program should fall under FISA guidelines.
Democrats mostly seem eager to treat this like an algebra class that they hope to get through without getting called on. My reaction? Gingrich might not make much of a role model in today’s civility-conscious DC (snerk) but sometimes feistiness makes it look like you care about what you believe in. Grow a spine, kids.
With the backstory out of the way, two recent headlines further underline the White House’s inability to forge a coherent response.
First from todays The New York Times:
Facing Pressure, White House Seeks Approval for Spying
After two months of insisting that President Bush did not need court approval to authorize the wiretapping of calls between the United States and suspected terrorists abroad, the administration is trying to resist pressure for judicial review while pushing for retroactive Congressional approval of the program.
…The White House is hoping that talks will lead to legislation to approve the program, much as Congress eventually approved Abraham Lincoln’s suspension of habeas corpus during the Civil War. Mr. Bush expanded on his defense of the program in Tampa, Fla., on Friday, saying he believed that he had to take extraordinary steps in a time of war.
I don’t see the habeas corpus analogy as helping the White House. For one thing historians generally recognize that action by Lincoln as a bad thing. For another, they don’t need to mix this scandal in people’s minds with the neverending embarrassment that our detainee treatment has become.
Second, from today’s Guardian (UK)
Frist: No New Spy Legislation Needed
WASHINGTON (AP) – Senate Majority Leader Bill Frist, standing firmly with the White House on the administration’s eavesdropping program, said Sunday he doesn’t think new or updated legislation is needed to govern domestic surveillance to foil terrorists.
“I don’t think that it does need to be rewritten, but we are holding hearings in the Judiciary Committee right now,” Frist said on CBS’ “Face the Nation.”
Frist also said he didn’t think a court order is needed before eavesdropping, under the program, occurs. “Does it have to be thrown over to the courts? I don’t think so. I personally don’t think so,” he said.
DeWine clearly thinks that he is doing the White House’s bidding by making himself superfluous as a conduit for government oversight. Now Frist has delcared that DeWine’s effort is itself superfluous, as the executive branch does not even need Congress to declare itself irrelevant before engaging in illegal activity. Unfortunately for Frist the legal theories of John Yoo may well render the Majority Leader’s statement superfluous by investing in the president the power to break the law whether or not Congress even thinks it has the power of oversight.
Frankly, I’m worried. If this gets any worse the vortex of minion superfluity could reach critical mass and collapse on itself, sucking every Bush-allied legislator and staffer into a physics-defying black hole from which nothing can escape except X-rays and campaign-related email.
Pooh
From day one, the most shocking thing to me has been the lack of viable (or at least viable-seeming)defense ready to go from day one, given the year lead time. One could almost make a larger point about what this administration is about from that simple fact…
ScottC
You sound like you think this is a bad thing.
Pb
Well, when you consider that a medicare prescription drug bill was being pushed in 2000 as a major campaign issue, and that it’s now 2006, I’d say they had even more time to work on it. Then again, when did these spying programs really start?
Wait, I’m confused–are we talking about Iraq now? :)
Don Surber
Screw FISA
Pooh
Cogently argued, Don.
Steve
What I find amazing is that with every single scandal that comes along, the GOP gets free license to try out defense after defense after defense until one of them sticks. Somehow they never pay a price in credibility, or so it seems. I sure wish a judge would let me try that one.
Pooh
Steve, I’ve taken to calling it Pat Riley politics. The mid-90’s Knicks simply fouled continuously, knowing that they all would not be called (and then many would not be called, and then most…)
I really think we’re seeing the same thing here.
srv
Y’all have probably seen this, but it’s a good laugh:
Guess who said…
As long as federalist lawyers can be found to divine anything, an administration can pretty much do whatever they want. We no longer have viable checks and balances.
jg
They spent years training their base to ignore the media. This is why. They can control it to the point that they are as relevant as Congress now.
Otto Man
Beautifully said. I think we can all agree this was Don Surber’s Gettsyburg Address.
VidaLoca
Better to fight them there…
Perry Como
I agree with Don. After you are done raping the Constitution, screwing a few federal statutes is a logical follow up.
Mark Wilson
Americans will cut Jack Bauer some slack in going after the terrorists, so long as he doesn’t try to kill Will Smith to cover up crimes by rogue elements in the intelligence community. (See “24” and “Enemy of the State” http://www.imdb.com/title/tt0120660/).
Richard Bottoms
Well there’s hope. I was standing in line at the pharmacy behind a patriotic ball cap wearing older genetleman (now that I’m 51, old man seems such a poor term), picking up about 10 different medications for himself.
Let’s just say he now regrets his vote in 2004.
BarneyG2000
“The Executive branch has pretty clearly stated that it has the wartime powers to do pretty much anything it sees fit,…”
I would assume that the problems with getting a warrant for “international” wire taps would exist with domestic to domestic wire taps, so either the President has declared executive powers on domestic spying without a warrant or the terrorist can talk to each other all they want as long as the cells are here on US soil?
Richard Bottoms
Jack Bauer?
Isn’t he the guy who carried out a demand to shoot one of our guys in the head to appease some terrorist or another? I’m not sure since I watch only sparadically, though his anorexic ex-girlfirend is kinda hot.
Pooh
SRV,
9/11 changed everything. John Yoo realises this, why can’t you?
Zifnab
Remind me again which war we’re in that lets the President wiretap? The War in Iraq was it? Were we afraid the Iraqi insurgents are making too many international phone calls to their allies on the US?
No no. It’s the War on Terror. Honestly, I don’t see why we even need a War on Terror to instigate free-for-all wiretaps. If I’m not mistaken, we’ve had a long historical War on Drugs not to mention the War on Poverty. Do Democrats involved in the War on Christmas have the right to wiretap as well? Someone clarify this for me.
Hey, here’s a fun one. Remind me when exactly Congress declared war and on whom. Cause while I do remember a use of force measure, the bit about us going to war still slips my mind.
Kazinski
I don’t think there is any way in hell that Congress is going to address the NSA surveilence before the election unless they know for certain it will be filibustered. With the way all the other issues are looming, Karl Rove knows it is absolutely imparative to have the NSA issue still alive in November in order to keep the GOP majorities in the Senate and House.
Davebo
They can’t ignore it that long unless the media allows them to which is not impossible but I’m hoping unlikely.
The more information that comes out on the subject, the more public opinion swings against the unwarranted eavesdropping.
And as November approaches GOP congressmen will be less likely to bow down to Karl Rove if their constituency and the press are hounding them over it.
Karl thinks he can keep them down by threatening to withhold campaign funds and campaign appearances with the president.
But if Dubya drops into the mid 30’s over the next months Karl may have to promise not to offer campaign photo ops in order to get them on board.
Davebo
Let me re-phrase my last as it confuses even me.
I seriously doubt that a lot of congressman are planning to run in 2008 offering their total support for Dubya as a campaign plank.
Bob In Pacifica
Having lived through all those revelations in the 70s in the wake of Watergate I think that this baby with the NSA was going on longer than Bush has inhabited the White House. As much as I would love to pin it on Dubya, my best guess is that when ECHELON went on line sweeping data from non-citizens that it took a nanosecond for someone in the NSA to have the light bulb go off over his head.
I just happened to be looking through some old copies of CAQ from the mid-nineties, and there was the whole story about ECHELON (actually, six stories), the NSA’s buddy-buddy work with Britain, Canada, New Zealand. I think that Australia was in on the deal. If you thumb through PUZZLE PALACE you’ll see references to “the Jew room,” a room in NSA where Brits used NSA equipment to spy on Americans (at the time suspicious Jews mostly) because technically the Americans couldn’t do the spying. Then, after the fact, they’d share the information.
There was also a good story on Afghanistan. It was as if CAQ could see ten years into the future. SOme stuff in that article about the proposed Unocal pipeline and problems they were having negotiating with the Taliban.
Ah, wild-eyed conspiracy theories! The truth is so much more mundane, so much farther along the curve.
+++
And yes, the Bush Administration is incompetent, even in its lying.
John Cole
Umm- have you paid any attention to the prescription drug care plan? Quit imagining.
don surber
FISA is unconstitutional. Congress is treading on executive branch duties. The president is commander-in-chief not Congress
No president has taken FISA seriously, each dashing off an except-I’m-gonna-if-I-have-to executive order.
Besides, FISA is outdated. It comes from the days of land phones. Hell, it predates email, the Mac, cellphones …
It is another legacy of the Carter presidency, sitting between the establishment of a theocracy in Iran and the Department of Energy
Pooh
The great don surber has spoken, nothing to see here, ignore the lawbreaking behind the curtain.
Bob In Pacifica
I think that don surber is probably right that FISA is unconstitutional. After-the-fact subpoenas have always sounded fishy to me.
That doesn’t give the President to say fuck the Fourth Amendment. You can’t work within the Constitution you change the Constitution. It’s a country of laws, not potentates.
I don’t know who don surber is or what he does, but I would imagine he wouldn’t like President Clinton sending out his or her spies to go through everything he and his family might have in search of something that may lead to something else that might just be prosecutable.
Gary Farber
“Second, from today’s Guardian (UK)….”
But actually from the Associated Press.
Other comments, quotations, and links here.
Is there some reason most bloggers seem to be ignoring Heather Wilson and the House Intelligence Committee investigation? And wouldn’t it be useful to point out all the Republican legislators speaking against the Bush Administration? (Like, y’know, yes, I keep doing?) Why keep feeding people stuff that allows them to claim it’s only Democrats who object? Especially on this blog?
Even Roberts has been forced to say that the White House is wrong, and that Congress needs to have oversight. Why not mention this? It doesn’t get Roberts off the hook for the rest of his shilling, you know.
But I said all this in my post, and in many past posts, as linked in this single post.
JWeidner
Wow…the same could be said of the Constitution – it’s actually older than that, and yet you still find hard right, strict conservatives who state that it can’t be interpreted to take societal change into account.
Bob In Pacifica
Gary Farber,
As for what Roberts says, I’ll wait for him to do something besides blocking investigations before I start shouting hosannas.
If something actually does happen with Wilson and the House Intel Committee, I’ll certainly be all over it. So far we haven’t seen much of anything. I’m expecting a collapse in will and some gushing thank yous from the House Repubs real soon.
But, Mr. Farber, I hope you are right and I am wrong.
Tim F.
My Roberts link above showed that his ‘conversion’ lasted less than 24 hours. He’s back in the obstrusctionist column.
Richard 23
Bob in Pacifica, you beat me to it. It seems to me that FISA makes it easier for the govt to comply with the Fourth Amendment. They are still required to get warrants but they get to do so out of the purview of the public in a secret court and get to do it retroactively.
Eliminating FISA will not eliminate the Fourth Amendment and make warrantless wiretapping legal.
ppGaz
When will Darrell make a statement on this?
Richard 23
Sen Cornyn must not be answering his email.
Kimmitt
The war on Americans who are left of center; the same war we’ve been in since the start of Bush’s first term.
Pooh
If it’s unconstitutional in that way, the retroactive warrant bit is clearly severable, which doesn’t really help the administration’s legal case.
Beyond that, I disagree, given the requirements placed on such wiretaps ‘pre-warrant’.
Amy
Pooh.. I don’t think he has ever cared about civil liberties – he sees his
job as protecting us, not protecting our liberties.
Ken Hahn
Go, go, GO!
As long as you Democrats want to campaign on this nonstory, I’ll sit back and watch. You might actually get more Republicans elected, difficult as that might be. The American people want international calls monitored and know they’re monitored in the other country. So long as you want to act as agents for al Qaeda, go for it.
And headlines! The New York Times and the Guardian? The mother of lies and the voice of the radical left in Britain? The Associated Press? The BDS wire service? I love it. Keep convincing each other that this is a campaign issue that appeals to anyone not already out there with you.
Go for it! Please!
ppGaz
The New York Times is the “Mother of lies?”
Do we have a new spoofer here?
S.W. Anderson
That ceased to be a question and became a lament about the same time Republicans got control of both houses of Congress. Now, it’s an indictment.
stickler
Translation: “Out there with you” = among the 60% of Americans who think this Administration sucks.
You know, the fringe.
joshua
Well, they did print Judith Miller’s Chalabi-ganda.
tb
That’s the kind of desperation I like to see. You can almost hear his voice cracking on the last line.
Pooh
Did this make anyone else think of the balcony scene in Dave?
Gary Farber
“As for what Roberts says, I’ll wait for him to do something besides blocking investigations before I start shouting hosannas.”
I said nothing about shouting hosannas, or even one word of praise for Roberts, or Wilson, or anyone else. That’s not my point. My point was that it’s not just wimpy terrorsymp liberals who think that some bits and pieces of the Constitution still matter, and that it’s worth pointing out to those who claim that anyone who objects to warrantless eavesdropping on U.S. citizens having overseas conversations and who feel that getting a warrant won’t hurt intelligence gathering that it’s not just Democrats who believe that the courts and the Congress are co-equal branches of a tri-partite government, and that Article I, Section 8 of the United States Constitution hasn’t been amended while we weren’t looking.
No hosannas involved. Just an honest club. Use it.
To this sort of nonsense: “As long as you Democrats want to campaign on this nonstory….”
Yes, indeed, George F. Will and Grover Nordquist sure are Democrats. You betcha. Lindsay Graham is such a Clinton-loving Democrat, isn’t he? And Heather Wilson. Yup, Democrats, all.
See, that doesn’t fly. And real conservatives are loyal to conservative principles, which means the Constitution, not a single man temporarily in office. Anyone who questioned Waco, or the issue of Etian Gonzalez, or the importance of not committing perjury, just to name three issues amongst so many (fiscal conservativism, balancing the budget, questioning Big Government whether overseas or at home, and on and on), couldn’t be true to principle and not listen to true conservative Republicans questioning the current President unless they never truly held those principles in the first place.
But pretend it’s just all partisan Democrats all you like. Tell it to Alberto J. Mora. Enjoy it while you can talk yourself into that.
Al Maviva
It’s interesting how everybody here has concluded that eavesdropping on a phone call of foreign origin or destination is per se unconstitutional in the absence of a warrant. I was under the impression that FISA covered this, but that the unclassified courts had left it an open question. Could somebody pass me the cite showing otherwise?
OCSteve
Yeah, Glenn Greenwald is a non-partisan source I’m going to take as the final authority on this.
When you start out with a page explaining how you didn’t start with a conclusion then go looking for facts to support it, rather you started with a completely open mind and then just did all this exhaustive research that led you to this conclusion…. Pull the other one.
As soon as you say something like “– and we have, without hyperbole, arrived at the very definition of tyranny”, I’m no longer taking you seriously. If you can’t make cogent arguments without hitting DU talking points – well I lump you in with them and stop giving you serious consideration at that point.
Read it all and it boils down to “here is how we need to exploit this to finally bring down BushCo”.
The best rebuttal to Greenwald’s arguments: If you read it all and follow it to its logical conclusion, the fact that Greenwald is walking around free and posting this stuff and not rotting in a dark cell with no due process is the definitive refutation of his hyperbole.
OCSteve
Follow up and clarify:
I’m seeing people with much more relevant authority than Greenwald on both sides of the aisle – coming down on both sides of the issue.
I’ve seen ex Clinton cabinet members saying there is nothing wrong here. I’ve seen Republicans call for impeachment.
I’ve seen Democrats talk about impeachment one week, then get briefed into it more and say, “OK, not as big a deal as I thought” the next. I’ve seen RINO Specter express his “concerns” with the program and call it illegal.
I’ve seen actual constitutional scholars come down on both sides, but usually qualified, as in they can’t take a completely firm stand themselves.
The only thing that is clear in any of this is that there is no consensus anywhere beyond partisan right and partisan left. Greenwald is no less partisan than Gonzales.
To me, it’s a balance of powers fight – they come along every so often and they get hashed out – just as the founders intended.
There will be no impeachment hearings, even if the Dems win the house in the fall. There will be minor tweaks to FISA. To the extent the Dems try to use it as a campaign issue it’s not going to get any traction.
Tim F.
In OCSteve’s post I count an ad hominem, an appeal to unacceptable consequences and an appeal to ridicule. I’m sure that Greenwald will be crushed.
Steve
Next time I’m in court, rather than responding to my opponent’s legal argument, I plan to just point out that he’s biased and can’t be trusted.
Cyrus
Eavesdropping on a phone call of foreign origin – I don’t see anyone claiming it is unconstitutional. Do you? If someone does, I would probably disagree with them.
Eavesdropping on a domestic phone call of foreign destination without a warrant – yeah, it’s unconstitutional, assuming there isn’t the FISA retroactive warrant in process. It’s not an open question. There’s no cite for this, probably because real legal scholars haven’t taken it seriously. If it would be illegal to eavesdrop on Americans without a warrant but not on foreigners, it does not become a gray area somehow if you tap an American’s phone (or whatever) but only while they’re talking to a foreigner. Setting fire to a hat is legal. Setting fire to a person is not. If the person is wearing the hat, however, setting it on fire suddenly becomes illegal. It’s not complicated, even though the administration would like it to be.
If you’re right and it really is an open question, why haven’t be been hearing that from the administration? Instead we hear that Bush has the right to do it in general, or that authorization to do it was implied by various acts of Congress, or that whether or not it was legal it was absolutely necessary so we shouldn’t be trying to stop it, or some other reason. If any of the dozen reasons Gonzales has given included “you don’t need a warrant to eavesdrop on foreign-to-domestic calls because you don’t need one to eavesdrop on foreign-to-foreign calls,” then I must have missed it.
Every reference I’ve heard to warrantless eavesdropping, even from its supporters, assumes that it targets American citizens on American soil. If you have evidence that it really targets foreign terrorists and only picks up Americans when they happen to be called by Al Qaeda and gets a warrant before moving on, please, don’t hold back. I’m sure every Bush supporter would be thrilled to see this evidence. Since for some strange reason, the administration hasn’t presented it.
Al Maviva
Tim, your reliance on Greenwald is perhaps somewhat misplaced. I believe that while is rhetorical flourishes are wonderful, akin to a Franken book title, he sometimes overreaches in some readings of the law. For instance, his slam on Hugh Hewitt’s overstated Fourth Amendment argument correctly notes that unwarranted surveillance of US persons, in internal security matters is unconstitutional.
That doesn’t necessarily control the question presented by the facts stated by Gen. Hayden, however; Hayden cited situations where one party to the phone call monitored is external to the U.S.
My understanding of the few published district court opinions collaterally addressing the issue is that the constitutionality of such monitoring is an open question.
That it is an open question, does not mean it is unconstitutional, nor does it mean that it is constitutional. Rather it’s just that courts have recognized there is a legitimate question lurking out there, but have not had to answer the question yet. I couldn’t state with certainty that it’s constitutional or un- based on the published cases.
So while Hewitt overreaches (and Greenwald’s argument there is effective), so does Greenwald. Greenwald treats U.S. v. U.S. District Court, 407 U.S. 297 (1972) as if it controls the eavesdropping of communications where one half of the communication is a foreign party outside the U.S. That is a stretch from a purely domestic conspiracy.
In constitutional rights questions, the standards change radically whenever borders are crossed, and non-U.S. persons are involved.
Greenwald’s argument is premised on the assumption that the wiretapping of a purely domestic conspiracy to commit national security crimes, exclusively involving U.S. persons, is legally identical to a similar conspiracy comprised in part of non-U.S. persons who are located abroad. Given the decreased expectation of privacy whenever borders are crossed, and the general position of the Constitution is that non-U.S. Persons sited abroad to not enjoy constitutional rights, and even U.S. Persons crossing the border, or moving things back and forth across borders, have a diminished expectation of privacy, and the government’s interests at the borders has been described as at an “apex.” Just as the Fourth Amendment prohibits the searching of your home without a warrant, if you drive your motor home across the border and attempt to reenter the country, it’s incontrovertible that Customs can go through it with a fine-toothed comb. Are communications that cross the border subject to a reduced expectation of privacy? Greenwald doesn’t address these concerns.
I’m not sure that the legal principles are “identical” to purely domestic surveillance, as Glenn claims. This is a non-trivial, serious argument. Glenn’s strident and offhand dismissal of it, addressing only the pro- for his side of the argument, and not the con, strikes me as overreach. Were he filing a brief on the matter, I’m not sure he could get away with saying that, and I believe he would have to at least honestly attempt to address the border crossing / presence of foreign persons issues, mere strident dismissal of the opposing side’s argument would fly.
Pooh, have you read the case, and Greenwald’s discussion of it? Do you agree that a purely domestic conspiracy is identical to a conspiracy that reaches outside of the U.S. borders, or from outside-in? And if not, under what theory – do foreign conspirators located abroad somehow gain 4th Amendment protection by including a U.S. person, or somebody within U.S. jurisdiction in their ranks?
Steve
The claim of a “diminished expectation of privacy” in overseas communications is a fine argument, Al, but until some court accepts it, I think the default assumption is that it makes no difference if the other end of the communication is outside the country.
I don’t see anyone arguing that foreign conspirators located abroad are covered by the Fourth Amendment, so I won’t bother addressing that portion of the argument.
Pb
Al Maviva,
But I guarantee you it’s one of the two. Given recent past ruings, and seeing as how one of the parties is inside the United States (thus giving us a “substantial likelihood any ”United States person” will be overheard”), I’m going to go with ‘unconstitutional’, Alex!
OCSteve
TimF:
I’m sure Greenwald doesn’t give 2 cents about what a nobody commentator on a (center right? occasionally center right? occasionally center right overrun with left and far left commentators? How is John’s blog classified these days anyway?) blog has to say.
But anyway – fair enough. Guilty as charged. Show me 1 out of 100 posts/comments here that do not contain logical fallacies.
ad hominem – assuming you mean “poisoning the well”, yes. I believe him to be (obviously) partisan and that he worked hard to reach the forgone conclusions he did – not the other way around as he claims. Poor argument perhaps, doesn’t change the fact that that is my opinion.
appeal to unacceptable consequences – who is claiming we have in fact arrived at a state of tyranny, or at least “the very definition of tyranny”. Not I.
appeal to ridicule – Not reasonable to make the argument that if we did in fact live in a tyranny, that Greenwald, as the loudest, most prolific, and most linked blogger on this topic on the left would be in a hole somewhere with his blog nothing but a 404. OK, tyrannies don’t do that. (Oops, there I go again…)
Your post relied (to some extent) on appeal to authority. I’ve kept up with Greenwald during most of this, but you provided a convenient link to his collection of posts on the topic. I reviewed them again and found them unconvincing. I believe this entire issue is a military matter (congress says when to go to war, not how the executive is to conduct the war) – others want to make it a civil matter. Beyond that I believe it is a normal balance of powers struggle that will be resolved in the executive’s favor.
As I mentioned in the follow up post – many folks on both sides of the aisle whom I accord much more authority on the matter than Greenwald and who are not falling in with the party line can not agree on legality here. Most everything I have read on the lefty blogs/MSM begins with an assumption of illegality and proceeds from there.
You have my predictions on record:
1) Balance of power issue will be resolved in favor of the executive (even if it is done in such a way as to let Congress save face by tweaking FISA to cover what he is already doing).
2) It won’t get Dems much traction in the fall election or in 08. They’ll realize that, or more likely try it anyway to their detriment.
I’ll bookmark this for the first Nov. 10th election related post :)
Al Maviva
If a court hasn’t decided yet, then it’s not decided and you shouldn’t pretend it is, or that the outcome is certain. In the national security context, where the executive has very broad ministerial power, the executive normally doesn’t need to seek a declaratory judgment from the courts before acting, even if something isn’t expressly provided for. The executive branch is supposed to have a lot of discretion, especially from the borders, and in foreign territory. Separation of powers principles prevent Congress from micromanaging the executive branch, so the idea that if something isn’t expressly provided for by law, it’s illegal, is a bit of a pipe dream. If you really feel that way, let’s start looking at the regulatory and welfare systems, and start taking them apart, because those are two areas where the executive branch exercises huge authority that is only loosely spelled out.
Again, my point wasn’t that it is definitely constitutional or not, just the Greenwald’s reading of the law – that the border and foreign persons distinction is irrelevant – is incredibly optimistic.
I don’t know where the confidence comes from that the border crossing aspect of communications discussed by Gen. Hayden is irrelevant. Border crossing sure makes a difference with the mail, and that’s a communication. Are phone calls in a special class of communications, with more protection than the mails, or the person himself? Last time I checked the Fourth Amendment talked about the person, his house papers and effect being free from unreasonable search or seizure, yet courts almost always hold searches of the person and his papers (including his mail) at the border to be reasonable, and there is no warrant requirement for that. I can’t disregard the border’s legal aspects as blithely as you do.
By the way, this comment:
is excessively cute. That’s exactly what Glenn Greenwald is arguing, that the presence of a U.S. person in the communications makes it subject, in its entirety, to a warrant requirement, even if everybody else involved is a non-U.S. person abroad. He says the legal analysis is “identical” even if foreign individuals are present. Given the state of conspiracy law – mere knowing is insufficient grounds for conviction here – AQ would be wise to stick a U.S. person on its email distro list. If Greenwald is right, this would immunize AQ communications from routine NSA monitoring, even if the communications were otherwise conducted completely abroad. I know – the government can just get thousands of warrants each day, retroactively…
Cyrus
From OCSteve’s opinion:
From the Constitution of the United States, Article 1, Section 8, listing powers Congress has:
I see we have a real Constitutional scholar here, not some namby-pamby Johnny-come-lately like Greenwald.
Most everything I have read begins with an assumption of eavesdropping on American soil, against American citizens, without warrants. Is any part of that assumption inaccurate?If not, I’ll say for my part that even if it is legal, it shouldn’t be. It’s unnecessarily authoritarian to have no oversight at all of something so basic and easily abused.
Not that I have seen any reason to believe it’s legal in the first place. You haven’t provided any, just said you find Greenwald unconvincing. You apparently base it on a belief that Congress, and for that matter everybody else, has no say in military matters. (Which is also problematic.) But why do you even think it’s a military matter? Why is Greenwald wrong? You have every right to believe whatever you want, but if you don’t explain it, few people will be persuaded.
Yeah, yeah, this issue will rebound to Bush’s benefit, Democrats don’t want the NSA to tap bin Laden’s phone, blah blah blah. Your predictions are familiar, and for all I know they’re correct. But what will happen has little to do with what is legal or ethical. What do you want? Do you want the office of the president to have even more power than they already do? Do you really want wartime authority to be a permanent part of the legal system?
Cyrus
It’s entirely possible that I’ve missed or forgotten a post of Greenwald’s on this subject. If so, and if it does say that, then clearly my foot is jammed in my mouth nice and deep. If he does believe that, then unless his reasoning is pretty damn good, I think he’s wrong. Either that, or just resorting to hyperbole – which isn’t admirable, but nor does it disprove everything he’s written on this subject. But I haven’t seen him saying that, and he doesn’t in the “index” post Tim F. linked to in the post that started this thread. Do you have a link?
The argument from necessity is one of the least compelling. Maybe the law doesn’t work. If so, change it, don’t ignore it – it won’t be too hard. Of course, your belief that this is the real problem seems to be coming out of thin air, because (sorry to bring him up again) as Glenn has pointed out, the administration has often praised FISA and expressed satisfaction with how it works. If you think the current system is so ossified that Al Qaeda could make a mailing list invisible by including an American in it, then why doesn’t the administration come right out and say so?
OCSteve
You’ll have to point out where I claimed to be a constitutional scholar. If you review my posts on this thread I said: I had followed the debate; people on both sides of the debate who I do take as authorities have not come to a consensus and their positions don’t necessarily reflect party lines; many on the left including Greenwald start with the assumption it is illegal and proceed from there.
The legislature can raise an army, declare war, fund the war, and govern conduct of the troops during the war. The CiC commands the forces in fighting the war, and decides how the war will be fought. Intelligence gathering has and always will fall into that category. So it’s clear to me that intelligence gathering falls under the executive. You’ll get more mileage out of Article 4.
No – that’s the problem. People are trying to make it part of the legal system. It’s not. It’s temporary (inherent) power based on the circumstances.
Same question back to you – do you want temporary powers that should be used only during a time of conflict to be codified into law?
ppGaz
Surely by now Darrell is also putting the finishing touches on his remarks. I assume that the delay has been in order to complete the focus group testing.
Tim F.
OCSteve,
Here’s a rundown of my reactions to your rundown of your reactions to my reaction to your post:
In an earlier post I warned against assumptions of bad faith. Assuming that somebody picked their conclusions in advance exclusively because you disagree with them is particularly poor form because it conveniently let you slip out of any serious reply. But you acknowledge that, so it is what it is.
The unacceptable consequences here is that you conclude that Glenn’s point, basically that way lies tyranny, can’t be true because we can’t have tyranny in America. In other words, his argument leads to unacceptable consequences so it must be wrong.
Greenwald has relevant constitutional law experience of his own so it’s hardly convincing to call him an inappropriate authority. However it does make sense to point out that he is a single authority among many, which seems to be the point of your follow-up post.
Strip out the irrelevant stuff and this seems to be the heart of the matter:
You’re basically making the AUMF argument, which Glenn answered. FISA does not suddenly become less of a law when the armed forces are engaged somewhere. Regarding whether we are currently at war, Gonzales has recently testified that we are not. As a consequence any ‘powers’ that the president currently has don’t come from wartime authority per se but from authority that comes whenever the US military is facing belligerents somewhere on the globe, which is to say pretty much always. Don’t grant Bush any powers today that you don’t want every president to exercise from now until eternity.
OCSteve
TimF:
Sorry – but having followed him for a while, and seen his comments and responses to others, his intro page was too much “he doth protest too much” for me. Everyone has a bias and especially most who are opining on this. If you try overly hard to make be belief you are unbiased I reach the opposite conclusion.
Actually my point was that he is not using slippery slope, he is asserting we are already there. At least “the very definition of tyranny” – what is the actual difference?
That was more my point, poorly made the first time so I did follow up. Should have clarified it more.
As for the rest (AUMF etc.) I’ll stick with balance of powers, it’ll get worked out, etc.
Fair enough and the best argument out of all of them. However “any” is key here to me. I don’t have a problem with every president now and forever monitoring international telcom. Every international call I ever made I assumed there were at least 2 governments listening, often more.