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144 Hrs

January 26, 2006

It’s been 6 days since what is now my officially lamest post, 72 Hours. The result of a desire to post more frequently, I took 15 minutes during a work break, and that was the result. I hope folks have been following the discussion between Tim and I in the comments- I think we’ve both been able to come up with some more accurate info and original sources. I don’t think either of us has budged much, but at least a civil (if heated) discussion was able to take place.

Sadly, I think we both feel that the other person has not responded to our core points. At least I do. I say the actual threat from terrorism is more of a concern than the theoretical constitutional crisis posed by warrant-less surveillance. Tim is obviously very concerned about both and wonders why a 72 hour retroactive warrant isn’t good enough,  and why the President didn’t ask congress to change the FISA law. Those are good questions, but I think I have a good case that the public nature of this discussion has harmed our intelligence gathering capability, and that reliance on the Federal courts to get a warrant in every single case can actually impair operational success. Most importantly, there are at least a couple ways the President can claim he has the authority to order warrant-less surveillance against known terrorists and their associates.

There’s a lot of lengthy links in our comments. 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.

To parrot the Moose who says it is time for the Democrats to get serious:

(A)re the opponents of the program really serious,
or are they posturing for political effect? It is not a question of the
opponents motives, it’s an issue that they want their cake and eat it

We know that a handful of Democrats were briefed on the
existence of the program. Two who were informed evidently "had
concerns". And what did they do? They wrote a letter. That is not
serious. If they really thought that the law was being broken and the
constitution was being violated, they should have set their hair on

Yes, it was a secret program. But that shouldn’t have
stopped the outraged ones from pressing the issue in the Intelligence
Committee and in discussions with the leadership. They could have
offered legislation to alter the FISA law. The Moose has worked for a
Senator, and he has seen how a single Member of that institution can
move heaven and earth if an issue matters. There is no evidence that these Members who had "concerns" took the commensurate action…

Again, there is legitimate
space for a serious discussion of modifying the FISA law. However, this
is a new type of war with terrorist operatives operating in the
homeland with the possible support of sleepers or sympathizers. And the
Commander in Chief should have maximum flexibility in fighting this new

Read the whole thing. My main point in all of this discussion is that the Democrats, often out of good motives, are elevating legalistic trivialities over the need to defend this country with vigor, ingenuity and success. There are theoretical dangers in this path, but so far the greater threat lies with the terrorist. At this point, we may have to agree to differ.

11 Comments leave one →
  1. Rufus T. Flinger permalink
    February 5, 2006 5:19 pm

    Next week should be interesting relating to the NSA warrantless spying issues…

    I’ve said before I thought it would go the Supreme Court, and still do, but just before the hearings, things begin to surface on another way it could work out:

    Via Time:

    “As Capitol Hill prepares to battle the White House over George W. Bush’s expanding war powers, moderate Senators on both sides of the aisle are quietly considering a range of options that would attempt at the very least to delineate the President’s authority, if not roll it back. Bush’s claims of wartime license are so great–the White House and Justice Department have argued that the Commander in Chief’s pursuit of national security cannot be constrained by any laws passed by Congress, even when he is acting against U.S. citizens–that some Senators are considering a constitutional amendment to limit his powers.

    …A source familiar with the nascent constitutional amendment says one version would make clear that any actions by the President as Commander in Chief that affect domestic policies or U.S. citizens are subject to the exclusive control of Congress. “Congress can’t completely cede wartime power to the President,” the source says. Talk of an amendment could end up as merely a lever in hearings. Then again, the first 10 amendments–better known as the Bill of Rights–were demanded by the states in part to curb the Constitution’s broad presidential powers.”

  2. February 7, 2006 9:47 am

    Dude, you’re dreaming!

  3. Rufus T. Flinger (Timmy C) permalink
    February 7, 2006 10:19 am

    Just pointing out one other way that the whole Constitutional crisis could play out…rather than just via the Supremes.

    But it would require moderate Republicans to counter this from the White House:

    “Congressional sources said Deputy Chief of Staff Karl Rove has threatened to blacklist any Republican who votes against the president. The sources said the blacklist would mean a halt in any White House political or financial support of senators running for re-election in November.

    “It’s hardball all the way,” a senior GOP congressional aide said.

    The sources said the administration has been alarmed over the damage that could result from the Senate hearings, which began on Monday, Feb. 6. They said the defection of even a handful of Republican committee members could result in a determination that the president violated the 1978 Foreign Intelligence Surveillance Act. Such a determination could lead to impeachment proceedings.

    Over the last few weeks, Mr. Rove has been calling in virtually every Republican on the Senate committee as well as the leadership in Congress. The sources said Mr. Rove’s message has been that a vote against Mr. Bush would destroy GOP prospects in congressional elections.

    “He’s [Rove] lining them up one by one,” another congressional source said.”

  4. Rufus T. Flinger permalink
    February 7, 2006 8:56 pm

    Well, there is one person on the Rove blacklist:

    Republican Who Oversees N.S.A. Calls for Wiretap Inquiry

    WASHINGTON, Feb. 7 — A House Republican whose subcommittee oversees the National Security Agency broke ranks with the White House on Tuesday and called for a full Congressional inquiry into the Bush administration’s domestic eavesdropping program.

    The lawmaker, Representative Heather A. Wilson of New Mexico, chairwoman of the House Intelligence Subcommittee on Technical and Tactical Intelligence, said in an interview that she had “serious concerns” about the surveillance program. By withholding information about its operations from many lawmakers, she said, the administration has deepened her apprehension about whom the agency is monitoring and why.

    Ms. Wilson, who was a National Security Council aide in the administration of President Bush’s father, is the first Republican on either the House’s Intelligence Committee or the Senate’s to call for a full Congressional investigation into the program, in which the N.S.A. has been eavesdropping without warrants on the international communications of people inside the United States believed to have links with terrorists.

    The congresswoman’s discomfort with the operation appears to reflect deepening fissures among Republicans over the program’s legal basis and political liabilities.

  5. Count Grecula permalink
    February 7, 2006 11:49 pm

    You won’t get an argument about me by saying this is all heading towards an attempt at impeachment. But there will be no Constitutional amendment. And if this goes to the Supreme Court – which is possible – I think Bush is on very solid ground legally. Politically – that remains to be seen. But I don’t see anything unusual in Rove trying to fend off an impeachement of his President. That’s his job.

  6. Rufus T. Flinger (Timmy C) permalink
    February 8, 2006 10:15 am

    Hey Count:

    “But I don’t see anything unusual in Rove trying to fend off an impeachement of his President. That’s his job.”

    I agree Rove’s job is defending the White House’s interests…. But shouldn’t that be about (at least in an ideal world) persuasion and statesmanship rather than about blacklisting, threats and manipulation of their own party members?

    And shouldn’t Congressman (in an ideal world) be making this decision based on their views of the Constitution and the rule of law, not on Rove’s vision of how it will effect November 2006?

    That said, my hat will be metaphorically off to all the Republicans who buck the Rove blacklist, as Wilson, Specter, Graham, Hagel, McCain and others seem to be doing.

    On a slightly different topic:

    As I said before, I don’t think it productive to get into arguing IF the warrantless taps on US citizens was illegal or not here. But I would find it valuable to be sure we’re hearing the same arguments.

    A summary written by Center for American progress tried to boil down the arugments in the 42 page Bush justice dept rationale for the tapping. They describe the legal arguments this way:

    “It’s full of impressive sounding citations, legal jargon and footnotes. But all of that is just ornamentation for two – and only two – fundamentally unserious legal arguments in defense of the program:

    1. The program was authorized by Congress in the September 2001 Authorization for the Use of Military Force (AUMF).

    2. As Commander-In-Chief, President Bush has the “inherent authority” to do whatever he wants.”

    And on Professor Balkan’s site, he summarizes Gonzales tesimony thusly:

    “What we did was legal, or, in our opinion, could have been legal. Since there are arguments on both sides, we will rely on our opinion. However, we won’t let a court decide the question, because then we wouldn’t be able to rely on our own opinion.

    We won’t answer hypothetical questions about what we can do legally or constitutionally. We also won’t tell you what we’ve actually done or plan to do; hence every question you ask will about legality be in effect a hypothetical, and therefore we can refuse to answer it.”

    My question is: are those fair summaries of the arugments being made by the White House and Gonzales? Are there more than those two fundamental legal arguments?


  7. Rufus T. Flinger (Timmy C) permalink
    February 8, 2006 12:10 pm

    Sorry one more:

    Is this accurate or overstated rendition of the government’s case?

    I’m less interested if you or other SMD readers agree with the implications in this as much as if this is an accurate rendition of the Bush case:

    The Administration’s position as articulated by Gonzales is not that the Administration has the power under the AUMF or under precepts of Article II “inherent authority” to engage in warrantless eavesdropping against Americans. Their argument is much, much broader — and much more radical — than that. Gonzales’ argument is that they have the right to use all war powers – of which warrantless eavesdropping is but one of many examples – against American citizens within the country. And not only do they have the right to use those war powers against us, they have the right to use them even if Congress makes it a crime to do so or the courts rule that doing so is illegal.

    Put another way, the Administration has now baldly stated that whatever it is allowed to do against our enemies in a war, it is equally entitled to exercise all of the same powers against American citizens on American soil. In a Press Release issued on January 27, the DoJ summarized its position on the legality of its actions this way:

    In its Hamdi decision, the Supreme Court ruled that the AUMF also authorizes the “fundamental incident(s) of waging war.” The history of warfare makes clear that electronic surveillance of the enemy is a fundamental incident to the use of military force.

    Gonzales took that argument even one step further on Tuesday by claiming that even in the absence of the AUMF, Article II of the Constitution gives the President the right to employ all “incidents of war” both internationally and domestically – which means that even if Congress repealed the AUMF tomorrow, the Administration, by this view, would still have the absolute and unchecked right (under Article II) to use all war powers against American citizens. Indeed, it claims that it would have those war powers even if Congress passed a law prohibiting the exercise of those powers against Americans.

    The “war powers” which a President can use in war against our enemies are virtually limitless… The reason the Administration claims it can engage in warrantless eavesdropping against Americans is because it has the general right to use all of these war powers against Americans on American soil, of which eavesdropping is but one example.

    Without hyperbole, it is hard to imagine a theory more dangerous or contrary to our nation’s principles than a theory that vests the President — not just Bush but all future Presidents — limitless authority to use war powers against American citizens within this country.

  8. Count Grecula permalink
    February 9, 2006 1:05 am

    That’s right Tim, the stormtroopers are coming to a neigborhood near you!

    I can’t spend all my time discussing everypoint in the lengthy comments you make- but be assured I do read them.

    IMHO, you are in hook line and sinker for the scare tactics of the left. I don’t know what else to say without staying up for days and flaking out on the job. What a minute, here’s a stab at it:

    There’s a huge difference between what is theoretically possible and what is politically feasable and what is legal and what is just right. I think the Constitution gives the President a lot of latitude to do what is right in defending the country. Politics and public opinion will be a better check and balance than anything that could be put into law.

    The line of thinking on display here is one that sees the current situation with alQueda etc. fundemantally as a law enforcement issue rather than military issue.

    If Nazi soldiers were hiding in pockets around the country, calling American citizens on cellphones who were aiding them in fighting a war against the nation I’m not sure how much an issue things like warrants would be. An enemy of the state is going to be hunted down and shot, spyed on etc. with no regard as to the legal system. If this scenario was the case, I don’t think the above sounds scary at all.

    The President’s lawyers are no doubt overstating their case, but I would expect that of them. The political foes of the president are also greatly exaggerating theirs.

    If you haven’t read the Michael Chricton article I mentioned weeks ago, this is a good time to take a look. This “crisis” is just another phony storyline cooked up by Liberals that will evaporate in due time, fabric of our nation intact. Next.

  9. Rufus T. Flinger (Timmy C) permalink
    February 9, 2006 11:35 am

    Hey Count:

    You wrote:

    “This ‘crisis’ is just another phony storyline cooked up by Liberals that will evaporate in due time, fabric of our nation intact.”

    You mean cooked up by liberals like the following:

    Republican Sen. Arlen Specter…

    SPECTER: I don’t think you can use principle of avoiding a tough constitutional conflict by disagreeing with the plain words of the statute.

    Attorney General Gonzales, when members of Congress heard about your contention that the resolution authorizing the use of force amended the Foreign Intelligence Surveillance Act there was general shock.

    GONZALES: We’ve never asserted that FISA has been amended. We’ve always asserted that our interpretation of FISA, which contemplates another statute and we have that here in the authorization to use force, those complement each other. this is not a situation where FISA has been overwritten or FISA has been amended. That’s never been our position.

    SPECTER: That just defies logic and plain English.

    Republican Sen. Lidsey Graham:
    [Asked about the Presidents disregarding FISA law]

    “I don’t know of any legal basis to go around that. There may be some, but I’m not aware of it. And here’s the concern I have. We can’t become an outcome-based democracy. Even in a time of war, you have to follow the process, because that’s what a democracy is all about: a process.”

    And in questioning Gonzales:

    “All I’m saying is the inherent authority argument in its application to me seems to have no boundaries when it comes to executive decisions in a time of war, it deals the Congress and courts out, Mr. Attorney General.”

    Repulican Bob Barr:

    “Accused of breaking the law in the current debate over electronic spying, President George W. Bush has, in his own way, dared the American people to do something about it. For the sake of our Constitution, I hope they will.”

    Conservative Activist Grover Norquist:
    (asked about President national defense and obeying FISA law)

    “It’s not either/or. If the president thinks he needs different tools, pass a law to get them. Don’t break the existing laws.”

    Bruce Fein…(Reagan Justice Dept Associate Attorney General)

    “On its face, if President Bush is totally unapologetic and says I continue to maintain that as a war-time President I can do anything I want – I don’t need to consult any other branches – that is an impeachable offense. It’s more dangerous than Clinton’s lying under oath because it jeopardizes our democratic dispensation and civil liberties for the ages. It would set a precedent that … would lie around like a loaded gun, able to be used indefinitely for any future occupant.”

  10. Count Grecula permalink
    February 9, 2006 2:41 pm

    Not everyone criticizing the President does so from insincere motives. But you can be sincere and wrong.

    This never would have become an issue without the illegal leak to the NYT. Now liberal Republicans, conservatives in vulnerable blue states, libertarians etc. are piling on in order to defend them selves or distance them from the President etc.

    Gonzales makes sense to me. Too bad Specter can’t figgure it out!

    Anyways, I would appreciate it if you respond to the fundamentals of the legal arguments outlined in NSA links. I’m not terribly impressed by statements from Senators and random past administration officials with various motives. I think the legal arguments are solid as they can be. Every case has a counter argument.

    The Crichton article is essential to in a broader sense to understand where I’m coming from. Panic after panic is thrust before us in the news, only to recede as the basis for it fades away when confronted with reality. (Updated in the main article.)

  11. Rufus T. Flinger (Timmy C) permalink
    February 9, 2006 3:01 pm

    Well, am glad you do see that it isn’t just “liberals cooking up the crisis” and that many of the critics are sincere in their issues.

    I did read the Susstien bit — and previously had read the Chriton story — and the other links also…but will respond over at the most current post on the site versus making the 144 mintues comments even more crazy long than they are now…


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