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George Will, Misrepresenting

February 16, 2006

Captain Ed respectfully disagrees with George Will.

Update: Strong rebuttal to George Will (and Rufus) by Andrew McCarthy, former federal prosecutor. More respecful disagreement from Mark Steyn.

I have more to say about Jamie Gorelick, but that will have to wait!

8 Comments leave one →
  1. rufus t. flinger permalink
    February 17, 2006 10:22 am

    Howdy Count:

    As I read it, The Captain suggests George Will is wrong in these ways (am I correct?):

    1. He thinks Will is wrong in stating that FISA was written intending to regulate wartime as well as peacetime spying…The Captain writes:

    “This is patently untrue. FISA came into being to regulate peacetime surveillance by the federal government, as an antidote to Nixonian abuses of power that had nothing to do with the conduct of war”

    Hmmmm…didn’t FISA include direct languge about a 15 day blackout of the need for warrants after a declaration of war? …in a whole subsection called whole subsection 1811 of FISA, titled “Authorization during time of war”?

    Sounds like “clear language…written to regulate wartime surveillance” to me.

    2. He claims no historic precedence for checks of Presidential war powers relating to spying even on US citizens

    “The authority to conduct wartime surveillance on one’s enemy, regardless of whether one terminus of the communication was located in the US, has never been questioned until now.”

    I don’t think that this had anything to do with George’s arugment, but was the Capt’n own point.

    Well, I think it’s fair to say that this question has never been addressed by the Supreme Court either way.

    Maybe they will, maybe not. We’ll see.

    3. He criticizes Will as being unconstitutional in calling for Congress’s role during wartime:

    “And the Constitution makes clear that the President conducts the war that Congress declares, not the Congress or its legislation. Will wants to set a precedent where Congress winds up conducting wars instead of the Presidency…”

    But I don’t read Will arguing for that at all, or for anything more than co-equal branches with accountability…and hard to call his stance Unconstitutional as he writes:

    Besides, terrorism is not the only new danger of this era. Another is the administration’s argument that because the president is commander in chief, he is the “sole organ for the nation in foreign affairs.” That non sequitur is refuted by the Constitution’s plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws “necessary and proper” for the execution of all presidential powers .

    And I completely agree with Will on his big closer:

    But 53 months later, Congress should make all necessary actions lawful by authorizing the president to take those actions, with suitable supervision. It should do so with language that does not stigmatize what he has been doing, but that implicitly refutes the doctrine that the authorization is superfluous.

    Then as an update, later on the page the Captain quotes from Andrew Mccarthy who quotes from several cases, including United States v. Brown (1973) and a misquote about Clinton’s Jamie Gorlick.

    Firstly, as I understand it, all decisions like Brown, prior to FISA don’t help much. As one group of lawyers put it “Presidential authority post-FISA is enacted very differently that it would be absent legislative guidance.”

    Nor does Gorelick’s quote help either, as she was talking about physical searches before FISA covered physical searches, as AP news points out:

    “But at the time of the Ames search in 1993 and when Gorelick testified a year later, the Foreign Intelligence Surveillance Act required warrants for electronic surveillance for intelligence purposes, but did not cover physical searches. The law was changed to cover physical searches in 1995 under legislation that Clinton supported and signed.”

  2. February 17, 2006 2:09 pm

    Some great points Rufus. On point too 😉

    Please read the McCarthy piece in my update.

    There is much to be said, but I don’t have the time… I think Gorelick is relevant in a few ways but don’t have time to really get into it. Suffice it to say she did make the appeal to Article II powers, the same argument Gonzales has made. FISA cannot infringe upon those powers; moreover, just because the Clinon and Carter administrations backed away from this position does not mean that it was refuted. I doubt that Bush would have gone down that road without 9/11.

    I’m glad I didn’t discourage you from continuing to comment!

  3. rufus t. flinger permalink
    February 17, 2006 7:07 pm


    So here is what i see almost all of Mccarthy’s main arguments with Will being:

    1. That Will was “misrepresenting the program as ‘warrantless surveillance…targeting American citizens on American soil.'”

    “The program targets, moreover, only international communications by this foreign enemy, some of which cross U.S. borders.”

    What? So he’s aruging that FISA is all about foreign spying, except for that pesky part that “crosses U.S. borders.”

    For the portion of the wiretapping of foreign calls to other foreign callers, there is no controversy whatsoever about warrantless spying…they aren’t US citizens.

    For the portion of the calls that “cross over US borders” and FISA simply does show Congress regulating “targeting American citizens on American soil.” See this from FISA:

    “Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

    That sounds like FISA covering “domestic spying” to me.

    And it specifically defines “United States person” that the “domestic” intercepts apply to.

    All his other arguments branch off that mistaken representation of FISA. And the other pre-FISA case law he spoke to I covered in my last post.

    To Wills’ point about “the argument that the AUMF contained a completely unexpressed congressional intent to empower the president to disregard the FISA regime is risible coming from this administration. It famously opposes those who discover unstated meanings in the Constitution’s text and do not strictly construe the language of statutes.”

    To that Mccarthy basically just says, “in this case, we like unstated meaning in the text” and says “Hamdi” says it’s ok. Very questionable point there.

    I mean, look at O’connor in the Hamdi decision itself it really isn’t shy about calling out for the judicial branch to review the executive “when it comes to the rights of the Nation’s citizens.”

    “In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet & Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

    As Will put it, no blank checks, rather checks and balances.

  4. rufus t. flinger permalink
    February 17, 2006 8:48 pm

    One more thought on the Hamdi:

    Folks have pointed out a key difference between the Hamdi case and the FISA scenario that I’ll try to describe here.

    With Hamdi, Congress had NOT ruled on detentions of US Citizen “enemy combatants.” With FISA, congress HAD ruled on warrantless wiretaps of US Citizens.

    So the argument goes that with Hamdi, IF Congress had previousy passed a law saying “enemy combatants” can only be held for 15 days after Congress declared war…

    …THEN the Supremes could NOT have reasably ruled that the Congress with the AUMF silently granted the Executive power that Congress had specifically sought to limit with the previous law.

  5. rufus t. flinger permalink
    February 18, 2006 3:00 pm

    To his credit Captain Ed admits his error about FISA and wartime surveillance:

    (Appearantly glenn made the same observation I did above)

    Here’s his retraction:


    Kudos to the Captain for the update/retraction.

  6. February 22, 2006 1:05 am

    For some reason, this comment went in my junk folder (all comments are emailed to me). Interestingly, by that time, I had already read Greenwald’s analysis, courtesy of a link from none other than Hugh Hewitt. All of this is old news, actually. I’m surprised the Cap’n hadn’t read it before. But I’m not surprised he posted a correction. In my experience, blogs are more self-correcting than newspapers and magazines. The good ones at least.

    I’ve got one more post in me on this, re-heating some of the aforementioned “old news”.

    I don’t know how to get it through your thick skull that congress cannot pass a law that limits Presidential powers granted by the Constitution, but I’ll try. See you there.

  7. Rufus T. Flinger (Timmy C) permalink
    February 22, 2006 11:52 am

    Hey Count:

    Promise that “my thick skull” will be very open to hearing what you think about where the line between Presiditial Constitutional powers and the Constitutionally granted powers to Congress and the Judiciary mix.

    BTW, I should remind you that my position here has never been “Bush is DEFNITELY breaking the letter of the law.”

    It has been and still is: He’s breaking the Spirit of the law, may be breaking the letter of the law, and the whole crisis was a huge unforced error that didn’t need to happen in the first place, and weakens the country in the overall war on terror.

    And the ongoing efforts by Specter, and appearantly Roberts to bring this back into a system of judicial checks and balances will be A Good Thing. (TM)

    But looking forward to your post…


  8. February 22, 2006 10:47 pm

    Interesting… my impression has been that you have been advocating the exact opposite- Bush definitely broke the letter of the law. Hmm. At least I think we can agree this is a murky area.

    I’m glad your skin is as thick as your skull!! Thanks for taking that comment in the spirit it was offered.

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