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72 Hours

January 20, 2006

There are at least a couple of good answers to the question(s) posed by The Duke and Cpl. Flinger "Why aren’t the FISA 72 hour retroactive warrants good enough?"

The Moose, surprisingly takes the side of the administration.

Without belaboring the matter, the Moose continues
to believe that the President had authority both under Article II of
the Constitution and the Authorization for the Use of Force passed by
Congress to conduct the interception of enemy communications.

One can question the legal
rationale that was employed by President, but there is absolutely no
evidence that he was attempting to do anything else but protect

America

.
It might be satisfying for partisans to cast around comparisons to
Nixon or Harding, but this was a program to thwart terrorists not for
political aggrandizement.

This is why the MLK Day speech with all these accusations- and tying it to surveillance of King – was so offensive to me. Moose continues:

This was far from "scofflaw
behavior". Rather, it was laudatory of the Administration to decisively
employ technology to detect what the Jihadists were up to. Should there
be improvements and reforms in our intelligence operations? Of course.
However, we should not cripple electronic intelligence in a partisan
pique the way we hobbled human intelligence in the 1970’s.

Moreover, had the Administration failed to implement the eavesdropping
program and another attack occurred, undoubtedly the Bushies would have
been faulted for negligence. The critics want to have it both ways.

The way I understand it, FISA is primarily concerned with domestic warrants, whereas the NSA program is concerned with international issues (on one side, at least). FISA has no jurisdiction over this matter. Moreover, there are other two authorizations Moose states.

I’m very busy, and haven’t had the time to read this whole thing, but it seems like a pretty good take on the administration’s case for the NSA program.

Importantly, the FISA Court of Review itself recognized just three
years ago that the President retains constitutional authority to
conduct foreign surveillance apart from the FISA framework, and the
President is certainly entitled, at a minimum, to rely on that judicial
interpretation of the Constitution and FISA.

Check these links out and tell me what you think.

My take is that because a lot of this surveillance involves monitoring data packets, it is done by computers looking for certain criteria, and flagging it for further investigation. It’s basically a big spam filter. And it’s looking for terrorist associations, not political affiliations.

It’s very post-modern and all to say "I have no easy answer for that" when confronted with a difficult choice. That doesn’t cut it for the men and women that are charged with making those choices with the safety of the Nation in mind. We need to lay off the heated rhetoric. This should have been an internal debate, not a public one.

UPDATE: The Jawa Report is more pithy. It also has a link to the DOJ document detailing this argument.

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13 Comments leave one →
  1. FecesFlinger (Timmy C) permalink
    January 20, 2006 8:51 pm

    I think we’re mixing issues….

    The DOJ report (from the executive branch) is basically about arguing that the executive branch didn’t overreach it’s Consitutional powers when it disregarded the FISA law, and the 4th Ammendment’s call for all US citizens to get due process and warrants before being searched by the govt.

    That is one issue. And a biggie.

    Also, I think you are mistaken about FISA’s jurisdiction. It scope covers any “foreign power” or “agent of a foreign power” as well as “US Persons” although US Constitutional protection to due process only applies (of course) to US citizens.

    (BTW: Two seperate bipartian Congressional reports disagree with the DOJ on their claims)

    However: We shouldn’t confuse that (it’s legality) with the issue we are talking about here.

    The issue we are sorting through now is why is 72 hours retroactive warrants not enough? And if it weren’t why disregard the law rather than get Congress to amend FISA to fix it?

    Also, increasingly this is (thankfully) moving beyond a partison issue.

    Gore quoted Bob Barr, but you have this from George Will:

    “The president’s on legal ground that strikes me as overreaching…[I]t looks as though he clearly broke [the 1978 FISA law]. What the president would say is there are implied powers, that is, he’s rooting this in the constitution. There are implied powers of the commander in chief that enable this to be done and he says it’s a vital tool that we do this because I assume of the internet and cell phones and all the rest that make communication rapid and hard to trace. Let’s stipulate the technological grounds may be there.

    This president however has asserted a capacious doctrine of executive power and the war powers, I mean, literally unlimited, and it’s hard for me to believe that that’s true.

    This looks…like what is called in tennis an unforced error. That is, if it is necessary to do this, Congress would have given it to him, given the power in ten minutes.”

    And this:

    Leading Conservatives Call for Extensive Hearings on NSA Surveillance; Checks on Invasive Federal Powers Essential

    Patriots to Restore Checks and Balances (PRCB) today called upon Congress to hold open, substantive oversight hearings examining the President’s authorization of the National Security Agency (NSA) to violate domestic surveillance requirements outlined in the Federal Intelligence Surveillance Act (FISA).

    Former U.S. Rep. Bob Barr, chairman of PRCB, was joined by fellow conservatives Grover Norquist, president of Americans for Tax Reform (ATR); David Keene, chairman of the American Conservative Union; Paul Weyrich, chairman and CEO of the Free Congress Foundation and Alan Gottlieb, founder of the Second Amendment Foundation, in urging lawmakers to use NSA hearings to establish a solid foundation for restoring much needed constitutional checks and balances to intelligence law.

  2. FecesFlinger (Timmy C) permalink
    January 24, 2006 11:37 am

    Hi Count:

    One more new bit of data came up I think yesterday.

    You wrote:

    “My take is that because a lot of this surveillance involves monitoring data packets, it is done by computers looking for certain criteria, and flagging it for further investigation. It’s basically a big spam filter. And it’s looking for terrorist associations, not political affiliations.”

    Similair points to this where also said by many supporters of the warranteless spying program.

    But we have more info now on it, and we now know and that a massive keyword/extraction effort is now what was going on.

    Just ordinary wiretaps.

    Bush is defending the program in a campagin like fashion before the hearings begin in Feb. In defending the program, General Hayden who led the NDA warrantless spying effort gave out more details of what it was not.

    http://www.fas.org/irp/news/2006/01/hayden012306.pdf

    “Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about.
    This is targeted and focused.”

  3. Count Grecula permalink
    January 24, 2006 3:44 pm

    Tim, you are correct that my 5 minute take on the nature of the surveillance was incorrect. But I don’t think you’ve conviced me on the legal argument that FISA has sole authority in this matter.

    The guys at Powerline have tons of great stuff on this angle, too much for me to summarize. You can check it out at

    http://powerlineblog.com/archives/012770.php

    and

    http://powerlineblog.com/archives/012755.php

    As for Gen. Hayden, he also had this to say:

    Public discussion of how we determine al Qaeda intentions, I just — I can’t see how that can do anything but harm the security of the nation. And I know people say, “Oh, they know they’re being monitored.” Well, you know, they don’t always act like they know they’re being monitored. But if you want to shove it in their face constantly, it’s bound to have an impact. And so to — I understand…there are issues here that the American people are deeply concerned with. But constant revelations and speculation and connecting the dots in ways that I find unimaginable, and laying that out there for our enemy to see cannot help but diminish our ability to detect and prevent attacks.

    I get the feeling you are more afraid of President Bush than al Queda itself. Let’s remember who the real ememy is.

  4. FecesFlinger (Timmy C) permalink
    January 24, 2006 6:52 pm

    Hmmmm.

    I wasn’t trying to address the legality of Bush’s warrantless spying, I was actually trying to keep focus on the original question of why 72 hours isn’t enough?

    Why bring on a constitutial cricis when you don’t need to?

    (And to show that Conservatives — now we should add McCain to the list– are asking that same thing.)

    You suggested that it might be due to the scale of a large spam filter like datamining effort that wouldn’t scale to support FISA requests. Now we know that isn’t what is happening.

    So the original question remains.

    And correct me if I’m wrong, but when you boil down the Powerline argument aren’t they just saying that: “FISA applications are detailed and require considerable time to prepare.”

    What?

    When you look at the list they offer All it asks is for basic info that boil down to:

    Who are you wanting to spy on, and why and how long?”

    And I imagine that both the DOJ and the NSA have LOTS of lawyers. Lots and lots of them.
    And they all have fax machines, and email. And pagers I expect. Maybe even those Blackberry thingies.

    Also, senators have publicly said — without contradiction — that Emergency FISA warrants can be recieved “in minutes,” and if the 72 hour period is an issue, it can be extended further by going to a judge.

    Lastly you wrote: “I get the feeling you are more afraid of President Bush than al Queda itself. Let’s remember who the real ememy is.”

    Hmmmm. You may not mean it like this, but that comment feels like what logic folks call “the false dilemma fallacy.”

    It is precisely because I care that our country has an effective and supported anti-terror policy that I’m asking these questions.

    Tim

  5. Count Grecula permalink
    January 25, 2006 12:13 am

    Tim-
    I understand the concern that the President may be overstepping his Constitutional boundaries. It is not a trivial concern. However, I find the basis for that concern less than compelling.

    You can call it fear of a “Constitutional crisis” or whatever you want – but it seems to me that many on the Left find the actions of this President more worthy of opposition than the actions of terrorists. It’s not that you or anyone is supporting terrorists outright, but I think it’s fair to say that in this matter they have criticized this Administration in a way that has legitimately impaired the success of anti-terror operations. If you read the whole Hayden presentation , I think that’s a defensible position. As Hayden said:

    You know, the 9/11 commission criticized our ability to link things happening in the United States with things that were happening elsewhere. In that light, there are no communications more important to the safety of this country than those affiliated with al Qaeda with one end in the United States. The president’s authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates.

    Hayden also has many answers as to why the 72 hour option wasn’t always pursued:

    NSA cannot — under the FISA statute, NSA cannot put someone on coverage and go ahead and play for 72 hours while it gets a note saying it was okay. All right? The attorney general is the one who approves emergency FISA coverage, and the attorney general’s standard for approving FISA coverage is a body of evidence equal to that which he would present to the court. So it’s not like you can throw it on for 72 hours.

    In the instances where this program applies, FISA does not give us the operational effect that the authorities that the president has given us give us. Look. I can’t — and I understand it’s going to be an incomplete answer, and I can’t give you all the fine print as to why, but let me just kind of reverse the answer just a bit. If FISA worked just as well, why wouldn’t I use FISA? To save typing? No. There is an operational impact here, and I have two paths in front of me, both of them lawful, one FISA, one the presidential — the president’s authorization. And we go down this path because our operational judgment is it is much more effective. So we do it for that reason.

    Hayden doesn’t sound to me like some evil Bush/Rove sock monkey. He’s a real person with a lot of hard decisions to make. The path chosen seems reasonable and legal to me.
    Entrusting each warrant to a Federal judge- and the bureaucratic apparatus that surrounds him – will surely lead to cases where information is lost, or even worse, blocked from reaching it’s proper recipient in domestic law enforcement.

    Also, the mater of FISA authority is not just a big issue or matter of focus. If the President has enough legal authority to order this surveillance, the 72 hour question is totally irrelevant.

    Here they lay out an excellent legal framework for why the President does not need FISA authority. I’m no legal expert, but it looks pretty good to me- certainly not the work of rouge cowboys. But their best point is purely logical:

    If our soldiers or intelligence agencies discover a terrorist in Afghanistan, Iraq or elsewhere, the President or his designees can order an air strike or other attack to kill him. It would be very odd if the President has the authority to kill a terrorist, but not to intercept his telephone calls or search his cave.

    Hopefully that explains more fully why I believe this to be an “effective and supported anti-terror policy”.

  6. FecesFlinger (Timmy C) permalink
    January 25, 2006 11:01 am

    Hey Count:

    I’ve purposefully tried to steer us to the original 72 hour question, and away from the illegal question, because I think the second one won’t be definatively decieded until the Supreme Court. And I thoroughly believe it will get there.

    (Till then the debate of “it’s illegal, no it isn’t” is pretty boring to me)

    Though I have to comment on this:

    But their best point is purely logical: If our soldiers or intelligence agencies discover a terrorist in Afghanistan, Iraq or elsewhere, the President or his designees can order an air strike or other attack to kill him. It would be very odd if the President has the authority to kill a terrorist, but not to intercept his telephone calls or search his cave.

    Bad analogy. No one is saying we can’t search electronically or otherwise Iraqi, Afghans, or other foriegn terrorists…The issue at hand is NOT about Foriegn terroritsts, it’s about US CITIZENS.

    The analogy further falls down when you remember that Bush does not have the authority to summarily execute US citizens, without firsst going through other checks and balances, i.e. The Courts…

    Although if you take Gonzales’ argument to the “logical extreme…” ;>

    The more interesting question was the one you started with: why bring on a constitutional crisis when you don’t need to? Why is 72 Hours not enough, and if so why not ask Congress to amend the law?

    But on a second look, It seems that Hayen gave us more data on WHY 72 hours isn’t enough that neither of us looked at yet:

    “QUESTION: Just to clarify sort of what’s been said, from what I’ve heard you say today and an earlier press conference, the change from going around the FISA law was to — one of them was to lower the standard from what they call for, which is basically probable cause to a reasonable basis; and then to take it away from a federal court judge, the FISA court judge, and hand it over to a shift supervisor at NSA. Is that what we’re talking about here — just for clarification?

    GEN. HAYDEN: You got most of it right. The people who make the judgment, and the one you just referred to, there are only a handful of people at NSA who can make that decision.”

    So it’s beginning to look like speed isn’t the issue at all, it’s two things: the desire to require a lesser standared that the 4th Amendment’s “probable cause” and the desire to avoid a external check at all, but rather to keep it inside the Executive branch.

    On the “proboable cause” argument, the Administration isn’t helped by a 2002 DOJ statement where the DOJ basically didn’t support a bill lowering FISA standards to “reasonable suspicion” for non-US citizens:

    “The practical concern involves an assessment of whether the current “probable cause” standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congress’s passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.

    This shows that as of 2002, while the Bush administration had already begun warrantless splying on Amreicans, the main dude in charge of DOJ FISA warrants was not aware of any issues or obsticals that the current FISA law as written imposed on warranted domestic spying.

    Which makes all of this sound more and more like what Georege Will called “an unforced error.”

  7. FecesFlinger (Tim C) permalink
    January 25, 2006 9:19 pm

    One last thing.

    And forgive me if this is provocative, but trust me that this is an honest, non-rhetorical question.

    We’ve talked before about Bush making statements that seem hard to construe as anything else but a lie. Where he *must* have known what he was saying wasn’t accurate.

    …Since we now know that the warrantless spying on US citizens has been going on for 4 years now…

    How is this not a lie:

    from a April 2004 Bush speech:

    “Now, by the way, any time you hear the United States government talking about wiretap, it requires-a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.”

  8. Count Grecula permalink
    January 26, 2006 9:02 am

    Tim-
    It was a secret program. Those are usually kept secret.

    The case is also being made that certain communications with one side originating outside the United States with a known terrorist don’t need a warrant. That’s the whole debate. The President believes he is on soldid Constitutional footing in this matter.

    The Clinton administration also occasionally made use of warrantless eavesdropping, as did previous administrations. Bush did not invent this policy, he just took use of it more aggressively in a time of war. So in that sense, nothing changed.

    You want provocative? Try this rebuttal of the Powerline info I linked to above.
    Remember, this is the most widely read blog in the world. John Kerry recently posted there. Kos is an adviser for Democratic candidates. The contrast in civility between us here and Kos could not be greater.

    I greatly value your efforts, and the civility with which you debate these issues with me. I have a lot to learn from you!!

    I would like you to answer your own question though for my benefit: Why wasn’t the 72 hour policy good enough? You seem to have an answer you haven’t shared yet. Let’s have it.

  9. FecesFlinger (Timmy C) permalink
    January 27, 2006 11:50 am

    Hey Count:

    Thanks for saying this:

    “I greatly value your efforts, and the civility with which you debate these issues with me. I have a lot to learn from you!!”

    You are doing pretty good!

    And thanks, I am trying. I do believe that blogs structured conversations CAN lead to better debate on issues than what passes for debate in most other settings. But as in the “non-digital world” it takes the right folks involved I think.

    I’d like to fact check a couple points answer your question and ask one of my own.

    You wrote:

    “The Clinton administration also occasionally made use of warrantless eavesdropping, as did previous administrations. Bush did not invent this policy, he just took use of it more aggressively in a time of war. So in that sense, nothing changed.”

    Thinkprogress blog (from the Center for American progress think tank)has pretty much done a clear documentation on how this wasn’t true, at least with Clinton or Carter and I have not seen anyone dispute them on that.

    And you can hear it from the Big Dog himself here:

    Clinton, in an interview broadcast Thursday on the ABC News program ”Nightline,” said his administration either received court approval before authorizing a wiretap or went to court within three days after to get permission, as required by law.

    We either went there and asked for the approval or, if there was an emergency and we had to do it beforehand, then we filed within three days afterward and gave them a chance to second guess it.” Clinton told ABC.

    So unless there is other data on that which I haven’t seen, I think you are incorrect on that one. Bush is on his own on this one.

    Secondly you responded:

    “It was a secret program. Those are usually kept secret.”

    I understand that. But then why lie?

    Why not say nothing about the judicial check on wiretapping rather than lie about it? Or why not say something vague like “Don’t worry, we’re respecting the Constitution” rather than saying “a wiretap requires a court order. Nothing has changed.”

    I don’t get it.

    Lastly you asked:

    “I would like you to answer your own question though for my benefit: Why wasn’t the 72 hour policy good enough? You seem to have an answer you haven’t shared yet. Let’s have it.”

    Actually, I really was mystified. These weren’t “leading questions.”

    I’d say we’d have to watch the Senate hearings next week and see if we get more answers.

    From what we’ve learned to date, I’m still with the theory I posted last time:

    “So it’s beginning to look like speed isn’t the issue at all, it’s two things: the desire to require a lesser standard that the 4th Amendment’s “probable cause” and the desire to avoid a external check at all, but rather to keep it inside the Executive branch.”

    All of which seem to fly in the face of a smple reading of the 4th Amendment.

    “…no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    But as I said, that will be for the Supremes to work out.

    Maybe we should just wait a bit. I don’t think many more facts will come out until the Feb Senate hearings.

    Dems are pushing that Specter not only includ White house aplogoists, but also those critical of the effort, especially including Deputy Attorney General James B. Corney, who seems to have refused to sign off on the program, requiring Gonzales Bush and co, to go to Ashcroft while he was in th e hospital, to get sign off.

    We’ll see what we see.

    A counter-question to you, though:

    As you see the Gonzales argument, what CAN’T the President do? What law can he not break?

    You quoted the Moose (Marshall Whitman) but did you ever read the counter-argument The Moose himself linked to?

    They make the argument I was saying about how questioning the Adminstration about this is actually about strengthening the War on Terrorists:

    “The heart of The Moose’s argument is that freewheeling executive power is essential to the prosecution of the War on Terror, and that those of us–not just Democrats, but many Republicans–who would fence in that power by requiring observance of the rule of law are either mindless of the threat we face from Jihadism, obsessed with civil liberties absolutism, and/or blinded by Bush-hatred to the need for extraordinary national security measures.

    I plead innocent to all three counts of this indictment, and suggest The Moose is missing three characteristics of the War on Terror that make some limits on executive power not only advisable but essential:

    (1) this is a protracted, Cold War, that cannot be successfully waged in an atmosphere of permanent emergency;

    (2) congressional and judicial oversight of executive counter-terrorism activities is the only way we can ensure an effective war on terror; and

    (3) conspicuous respect for the rule of law is the only way we can sustain domestic support for the war on terror, and the only way we can successfully offer our own institutions and values as an alternative to Jihadism in what is preeminently an ideological battleground.

  10. Andrew P permalink
    January 27, 2006 4:01 pm

    I’m curious if anyone has taken the time to read them except Tim and I, and where you all come down on this issue.

    I’ve been following this, and I would mostly agree with the
    New Donkey’s POV
    that the Flinger referenced.

    I’d also pose a question regarding executive power to my conservative friends: would you want your worst nightmare Democrat (Hilary, Al, Howard, etc.) to have the power to play fast and loose with the law as long as he/she can justify it in the name of national security? Lincoln’s suspension of habeus, FDR’s internment of Japanese-American citizens, Truman’s attempt to take over steel mills, secret war in Cambodia, Watergate coverup, Iran/Contra — all arguably had security implications, and all pushed the executive power envelope, and all posed a threat to our republic.

    “I get the feeling you are more afraid of President Bush than al Queda itself. Let’s remember who the real ememy is.”

    Sure, disagreement with or distrust of this particular president is a poor reason to oppose such an extension of power. By the same token, political alignment with him is an equally poor reason to support it. I’m surprised and even disappointed to see how few old-fashioned Goldwaterite limited-government conservatives have come out against this heightened view of exec. power, war notwithstanding.

  11. January 29, 2006 10:38 am

    Hi Andrew,

    The U.S. Constitution gives the President broad powers in regards to foreign policy and limited powers in regards to domestic policy. You may find it disappointing that some conservatives believe in the Constitution, but the Constitution is important to many conservatives.

    I find it hypocritical for the Mainstream Media and most Democrats to blame the President for domestic problems, which are not part of his Constitutional charter, while criticizing him for the constitutional foreign power he has exercised.

    Like Tim C. stated, this will be sorted out by the courts, just as the Constitution prescribes. I don’t think our President is in any legal jeopardy though, if the courts follow the constitution.

    There is no need to worry about this or any other president abusing power. If we can survive one Clinton, we can survive another. The checks and balances in the Constitution work, even with the Deaniac and Kerriac, and Boxerite hysterics.

  12. Count Grecula permalink
    January 29, 2006 4:01 pm

    Andrew-
    Glad and honored that you are keeping tabs on the debate- and that you were able to take the time to contribute. You’re exactly the kind of person whose point of view I’d like to understand more (i.e. McGovernite limited-military liberal).

    Hah!

    Now to answer your questions:

    ***First of all, President Bush is not playing “fast and loose” with the Constitution. If I thought he was, you’d have more of a point. If it could be shown that he was spying on political enemies, calls bewteen citizens in this country etc, I would share your concern. But that doesn’t seem to be the case.

    ***If Hillary wants to be as tough as Bush in terms of National Defense, then great. She’s not my greatest nightmare- yet. There’s been mostly name-calling rather than reasoned argument against HRC. I need to know more. But if her so-called positioning to the middle results in a serious counter-terrorism policy, then great.

    ***War notwithstanding. I just don’t even know where to begin with that. We’re at war. I find in your comments a resitance to that very idea.

    If you want to equate the surveillance of known terrorists to the other issues above, fine… but I think that is a pretty stunning comparison- much like spying on Martin Luther King was recently compared to the NSA wiretaps. It’s considering the issue in some kind of ahistorical context. I understand the need to treat an issue philosophically apart from it’s context, but context matters too.

    The Democrats are clearly using this issue to make Bush into some Nixonian villain. I’m not buying it. If this is such a crisis, why didn’t members of congress come out against this program when they were briefed? You ought to be “surprised and dissappointed” in them too.

    Neither you nor Tim has said anything about the damage this public debate has most likely had on our national security. I take it that you feel that the trade-off is worth it. That’s what I mean when I say you fear GWB/Constitutional crisis more than an attack from al-Queda. That’s why I can’t trust your party with National Security.

  13. Feces Flinger (Tim C) permalink
    January 29, 2006 11:08 pm

    Count:

    A bit of fact checking and then happy to answer your questions….

    Firstly, you said:

    “President Bush is not playing “fast and loose” with the Constitution. If I thought he was, you’d have more of a point. If it could be shown that he was spying on political enemies, calls bewteen citizens in this country etc, I would share your concern.”

    I get that these are the issues that would push your buttons, fine. But I’m sure you are aware, they aren’t the variables that define US citizens’ rights relating to Government searches.

    Secondly, you said:

    “The Democrats are clearly using this issue to make Bush into some Nixonian villain. I’m not buying it.

    I’d have to restress that it isn’t only Dems questioning this. Just today you can add Republican Senator Hagel to this list of Republicans who feel Bush “can’t unilaterally decide that that 1978 law is out of date and he will be the guardian of America and he will violate that law.”

    And relating to things Nixon, FISA was written originally in direct reaction to Nixon’s abuse of wiretapping, and that was the last time in US history that a President kicked off a Constitutional crisis prior to this one.

    I grant that it was for different motives, but the Nixonion phrase “If the President does it, it isn’t illegal” sounds oddly similar.

    Thirdly, you asked:

    If this is such a crisis, why didn’t members of congress come out against this program when they were briefed?”

    They did. Only 8 Congressmen (A mix of Republican and Democrat) were briefed in what sound like VERY sketchy ways on the program and of the “gang of 8” THREE Democrats did come out against it.

    Daschle, Pelosi, and Rockefeller all expressed (in secret) dismay over the spying program. And they didn’t go public out of security concerns about classified information. They couldn’t even talk to their own personal staff about it, legally. But they did come out and raise their serious objections and questions about it:

    Tom Daschle wrote:

    “Between 2002 and 2004, the White House notified me in classified briefings about NSA programs related to the war on terrorism. The briefer made clear they were not seeking my advice or consent, but were simply informing me about new actions. If subsequent public accounts are accurate, it now also appears the briefer omitted key details, including important information about the scope of the program.

    Even with some of the more troublesome – and potentially illegal – details omitted, I still raised significant concern about these actions. As such, I am surprised and disappointed that the White House would now suggest that none of us informed of the program objected.”

    And Pelosi’s Letter is here, to General Heyden:

    “General Heyden…Without those answers, the concerns I have about what you said on the 1st can not be resolved, and I wanted to bring them to your attention directly…I believe you have a much more difficult case to make [redacted ] Therefore, I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting. Until I understand better the legal analysis regarding the sufficiency of the authority which underlies your decision on the appropriate way to proceed on this matter, I will continue to be concerned.”

    And lastly, Sen. Rockefeller’s letter to Dick Cheney is here, it was so sensitive, he hand wrote it rather than have an electronic version created that staffers might have access to. It includes this:

    I am writing to reiterate my concern regarding the sensitive intelligence issues we discussed today…Clearly the activities we discussed raise profound oversight issues…Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

    As I reflected on the meeting today, and the future we face, John Poindexter’s TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.

    Now, onto answering your question:

    “Neither you nor Tim has said anything about the damage this public debate has most likely had on our national security. I take it that you feel that the trade-off is worth it.”

    Sorry, I thought I was clear that I think the NSA spying scandal HAD damaged national security and the war on terrorists, but perhaps not for the reasons you seem to imply.

    On the one hand I am with Chris Hitchens in his observation that “I think we may take it for granted that our deadly enemies understand that their communications may be intercepted.” And to date, I’m not sure what new “actionable intelligence” this scandal has leaked that any Al Queda member didn’t already know. (Fill me in if I missed something)

    However, I do think that Bush’s choice to evade judicial checks and balances does have a dramatically bad effect on national security.

    And most of those reasons were mostly well listed in the New Donkey post I listed. No real need to repeat those again.

    One addition thing though: In choosing to go with unchecked power — rather than to use the 72 hour FISA taps, or go back to Congress to amend FISA — Bush has also put at risk the Governments case against all suspected terrorists whose wiretaps did not go through FISA procedures.

    If the Supreme court eventually eventually does rule that these are unconsitutional, all those cases would be at risk.

    That would be a needless and huge risk of Bush’s “unforced error.”

    I do have some new and old questions of my own for the discussion, but this has somehow become a long posting…

    More later,

    Flinger

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