John Hinderaker thoroughly shreds the latest NYT defense of their leaks:
The problem is, you can’t base a technical legal argument on what you think the law ought to be. You can only base a technical legal argument on what the law actually is. And the current state of the law, as uniformly articulated by the federal courts, is that the NSA’s international surveillance program is a legal implementation of the President’s constitutional powers. So, technically speaking, the Times is simply wrong. Which leaves me wondering what the hyperventilating is all about.
RTWT.
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John Hinderaker thoroughly shreds the latest NYT defense of their leaks by itemizing the case law. Closing paragraph:
The problem is, you can’t base a technical legal argument on what you think the law ought to be. You can only base a technical legal argument on what the law actually is. And the current state of the law, as uniformly articulated by the federal courts, is that the NSA’s international surveillance program is a legal implementation of the President’s constitutional powers. So, technically speaking, the Times is simply wrong. Which leaves me wondering what the hyperventilating is all about.
RTWT.
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Michael Barone offers another highly refreshing dose of common sense:
Do you ever get the feeling, while listening to the political debate, that we’re stuck in the ’70s? The 1970s, that is, that slum of a decade which gave us the worst popular music, the ugliest hairstyles and clothes, and the most disastrous public policies of the 20th century.
The decade in which a Republican president imposed wage and price controls, the decade when we managed to have inflation and recession — stagflation — at the same time. The decade when crime and welfare dependency zoomed upward. A decade when Americans saw our diplomats seized — an act of war — and no effective force used to free them. A decade when a president was forced to resign in disgrace and when America lost its first war.
But for some people, it seems to be the ’70s all the time. After The New York Times revealed on Dec. 16 that the National Security Agency was monitoring telephone calls from suspected terrorists abroad to people in the United States, a hue and cry went up from the mainstream media and some Democrats that the Bush administration was engaged in a massive and illegitimate program of domestic wiretapping. Never mind that few if any wires were tapped — it’s likely that most of these calls were on cell phones — and that every one of the calls was by definition international.
Yes, there are some serious people who argue that the program violated the Foreign Intelligence Surveillance Act of 1978 (that slum of a decade again) because warrants were not obtained. But no serious person doubts that the president can order surveillance of enemy communications in time of war. And it doesn’t make much sense to listen in on enemy communications but to hang up when a call is made to someone in the United States.
Admittedly, in the 1970s Americans were reacting to a genuine scandal, the wiretapping conducted on the orders of FBI Director J. Edgar Hoover until his death in 1972. In the 1960s, Hoover’s FBI even listened in on Martin Luther King Jr., with the approval of Attorney General Robert Kennedy. And in the 1970s, there was reaction against past authorizations of attempts to assassinate foreign leaders, which were numerous when Kennedy was attorney general and his brother president, and Richard Nixon’s “plumbers” burglarizing Daniel Ellsberg’s psychiatrist’s office.
In the 1970s, when Americans seemed to accept defeat in Vietnam and detente with China and the Soviet Union, many of us thought there was no greater threat to our rights than our own government. That was wrong then, and Sept. 11 convinced most Americans that it is wrong now. But many people in the mainstream media and many Democratic politicians seem stuck in the ’70s.
[…]
We can learn from history, and each decade has something to teach us. But we can’t repeat history, because so many things change. Not many Americans, if they could vote for a decade to go back to, would vote for the 1970s. But for many in the mainstream press and for many Democratic politicians, it’s always sometime between 1970 and 1980, and they’re forever young…
Gen. Hayden’s Press Club address makes it abundantly clear how important is the NSA intercept program, and how much damage has been done by the NYT mob. The full text is a 21 page PDF, which includes Q&A at the end of the Press Club briefing.
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.
The press questions are largely inane [uninformed, to be polite] and typically hostile, e.g., “congressional powers of the president” (??)
QUESTION: You cited before the congressional powers of the president.
Are you — are you asserting inherent so-called constitutional powers that a — to use the term that came up in the Alito hearings — “a unitary executive” has to violate the law when he deems fit?
UPDATE: Paul Mirengoff’s comments on 24 January were very much on target:
It is worth considering why no real inquiry regarding the program occurred when the administration first advised congressional leaders about it. The reason, I think, is that few adults in their right mind would want to encumber the government’s right to listen to al Qaeda’s conversations with people in the U.S., and only a politician suffering from Bush Derangement Syndrome would want to make the government’s right to do so a political issue.
Why did the landscape change when the New York Times reported the program? Because at that point the matter was out of the hands of politicians who are both “adult” and not politically deranged. The clamor resulting from the combination of MSM denizens and lefty bloggers invoking the specter of King George III, embittered blowhard politicians, and old bull Senators obsessed with their prerogatives meant that hearings would have to occur.
But the hearing that matters is already occuring in the form of presentations like General Hayden’s, Attorney General Gonzalez’s, and President Bush’s. And the public’s take is the same as that of the Democrats whom the administration briefed at the inception of the program — few adults in their right mind would want to encumber the government’s right to listen to al Qaeda’s conversations with people in the U.S.
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Attorney General Alberto R. Gonzales gave an address [full text] at the Georgetown University Law Center last week on the NSA intercepts program.
I’ve noticed that through all of the noise on this topic, very few have asked that the terrorist surveillance program be stopped. The American people are, however, asking two important questions: Is this program necessary? And is it lawful? The answer to each is yes.
I don’t recall any of the opposition calling for a stop to the program - perhaps they remember a fragment or two of the 9/11 Commission reports.
The open wounds so many of us carry from that day are the backdrop to the current debate about the National Security Agency’s terrorist surveillance program. This program, described by the President, is focused on international communications where experienced intelligence experts have reason to believe that at least one party to the communication is a member or agent of al Qaeda or a terrorist organization affiliated with al Qaeda. This program is reviewed and reauthorized by the President approximately every 45 days. The leadership of Congress, including the leaders of the Intelligence Committees of both Houses of Congress, have been briefed about this program more than a dozen times since 2001.
A word of caution here. This remains a highly classified program. It remains an important tool in protecting America. So my remarks today speak only to those activities confirmed publicly by the President, and not to other purported activities described in press reports. These press accounts are in almost every case, in one way or another, misinformed, confusing, or wrong. And unfortunately, they have caused concern over the potential breadth of what the President has actually authorized.
[…]
The conflict against al Qaeda is, in fundamental respects, a war of information. We cannot build walls thick enough, fences high enough, or systems strong enough to keep our enemies out of our open and welcoming country. Instead, as the bipartisan 9/11 and WMD Commissions have urged, we must understand better who they are and what they’re doing – we have to collect more dots, if you will, before we can “connect the dots.” This program to surveil al Qaeda is a necessary weapon as we fight to detect and prevent another attack before it happens. I feel confident that is what the American people expect … and it’s what the terrorist surveillance program provides.
As General Hayden explained yesterday, many men and women who shoulder the daily burden of preventing another terrorist attack here at home are convinced of the necessity of this surveillance program.
Now, the legal authorities. As Attorney General, I am primarily concerned with the legal basis for these necessary military activities. I expect that as lawyers and law students, you are too.
The Attorney General of the United States is the chief legal advisor for the Executive Branch. Accordingly, from the outset, the Justice Department thoroughly examined this program against al Qaeda, and concluded that the President is acting within his power in authorizing it. These activities are lawful. The Justice Department is not alone in reaching that conclusion. Career lawyers at the NSA and the NSA’s Inspector General have been intimately involved in reviewing the program and ensuring its legality.
The terrorist surveillance program is firmly grounded in the President’s constitutional authorities. No other public official – no mayor, no governor, no member of Congress — is charged by the Constitution with the primary responsibility for protecting the safety of all Americans – and the Constitution gives the President all authority necessary to fulfill this solemn duty.
It has long been recognized that the President’s constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States. Presidents have uniformly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice.
There are five appellate court decisions supporting that presidential power and zero decisions against. Attorney John Hinderaker has extensive comments. Gonzales’ closing:
I close with a reminder that just last week, al Jazeera aired an audio tape in which Osama bin Laden promised a new round of attacks on the United States. Bin Laden said the proof of his promise is, and I quote, “the explosions you have seen in the capitals of European nations.” He continued, quote, “The delay in similar operations happening in America has not been because of failure to break through your security measures. The operations are under preparation and you will see them in your homes the minute they are through with preparations.” Close quote.
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Jack Kelly has a nice piece on media (in)credibility, where he quotes from Michael Crichton’s 2002 “Why Speculate?”:
Media carries with it a credibility that is totally undeserved. You have all experienced this, in what I call the Murray Gell-Mann Amnesia effect. (I call it by this name because I once discussed it with Murray Gell-Mann, and by dropping a famous name I imply greater importance to myself, and to the effect, than it would otherwise have.)
Briefly stated, the Gell-Mann Amnesia effect works as follows. You open the newspaper to an article on some subject you know well. In Murray’s case, physics. In mine, show business. You read the article and see the journalist has absolutely no understanding of either the facts or the issues. Often, the article is so wrong it actually presents the story backward-reversing cause and effect. I call these the “wet streets cause rain” stories. Paper’s full of them.
In any case, you read with exasperation or amusement the multiple errors in a story-and then turn the page to national or international affairs, and read with renewed interest as if the rest of the newspaper was somehow more accurate about far-off Palestine than it was about the story you just read. You turn the page, and forget what you know.
That is the Gell-Mann Amnesia effect. I’d point out it does not operate in other arenas of life. In ordinary life, if somebody consistently exaggerates or lies to you, you soon discount everything they say. In court, there is the legal doctrine of falsus in uno, falsus in omnibus, which means untruthful in one part, untruthful in all.
But when it comes to the media, we believe against evidence that it is probably worth our time to read other parts of the paper. When, in fact, it almost certainly isn’t. The only possible explanation for our behavior is amnesia.
Michael Barone has saved me the effort of writing up several salient bits of opinion on Iran policy.
It seems clear that there should be a parallel high-priority effort to support Iranian democrats and regime change. Such a policy doesn’t conflict in any way with efforts to stop the mullahs’ nuclear weapons program.
Debra Burlingame is a former attorney, and is the sister of Charles F. “Chic” Burlingame III, the pilot of American Airlines flight 77, which was crashed into the Pentagon on Sept. 11, 2001. Her WSJ op-ed makes it very clear how the NYT and the administration’s opponents have inverted U.S. security priorities:
Three weeks before 9/11, an FBI agent with the bin Laden case squad in New York learned that al-Mihdhar and al-Hazmi were in this country. He pleaded with the national security gatekeepers in Washington to launch a nationwide manhunt and was summarily told to stand down. When the FISA Court of Review tore down the wall in 2002, it included in its ruling the agent’s Aug. 29, 2001, email to FBI headquarters: “Whatever has happened to this–someday someone will die–and wall or not–the public will not understand why we were not more effective and throwing every resource we had at certain problems. Let’s hope the National Security Law Unit will stand behind their decisions then, especially since the biggest threat to us now, [bin Laden], is getting the most ‘protection.’”
The public has listened to years of stinging revelations detailing how the government tied its own hands in stopping the devastating attacks of September 11. It is an irresponsible violation of the public trust for members of Congress to weaken the Patriot Act or jeopardize the NSA terrorist surveillance program because of the same illusory theories that cost us so dearly before, or worse, for rank partisan advantage. If they do, and our country sustains yet another catastrophic attack that these antiterrorism tools could have prevented, the phrase “connect the dots” will resonate again–but this time it will refer to the trail of innocent American blood which leads directly to the Senate floor.
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UT law professor and former NSC senior director Philip Bobbitt appears to be well informed on the practical issues. Bobbitt highlights the key problem in today’s reality with FISA - probable cause, and makes good points that the Bush administration has failed to press hard enough for a modern version of FISA. We can only guess what the administration was able to tell the oversight committees. Similarly we don’t know the committees’ logic when they advised the administration that new legislation was unlikely to be possible.
In the debate over whether the National Security Agency’s eavesdropping violated the Foreign Intelligence Surveillance Act, we must not lose sight of the fact that the world we entered on 9/11 will require rewriting that statute and other laws. The tiresome pas de deux between rigid civil libertarians in denial of reality and an overaggressive executive branch seemingly heedless of the law, while comforting to partisans of both groups, is not in the national interest.
Owing to the globalization of telecommunications, many telephone calls between parties in foreign countries or with an American at one end are routed through American networks. By analyzing this traffic, the National Security Agency has been gathering clues to possible terrorist activities.
[…]
Consider that on Sept. 10, 2001, the N.S.A. intercepted two messages: “The match begins tomorrow” and “Tomorrow is zero hour.” These were not picked up through surveillance of suspected individuals but from random monitoring of pay phones in areas of Afghanistan where Al Qaeda was active. Not surprisingly, these messages were not translated or disseminated until Sept. 12th.
Nor was the fact that we knew the identities of two of the terrorists sufficient to thwart the attack the next day. But had we at the time cross-referenced credit card accounts, frequent-flyer programs and a cellphone number shared by those two men, data mining might easily have picked up on the 17 other men linked to them and flying on the same day at the same time on four flights. Such intelligence collection would not have been based on probable cause, and yet the presence of the hijackers in the country would have qualified them as “U.S. persons.”
Clearly, “random” information is likely to be useless when it is not linked to surveillance focused on an individual, while that focused intelligence is much less useful when it is not linked to data mining collected in broad surveillance of “U.S. persons.”
[…]
Furthermore, not only are there presumably conspirators within the United States, but conversations between two foreign persons could be routed, via the Internet, through American switches to give the appearance of a domestic-to-international connection. It is difficult to imagine getting warrants now in such situations, because the standard of probable cause to conclude that the target is a terrorist cannot be met.
UPDATE: See Tigerhawk for policy recommendations and a succinct restatement of the “elephant in the room” that is invisible to the NYT mob - that today’s challenge is stop attacks, not just to build a case for future prosecution:
. . .Today’s task — the interdiction of terrorists — is an entirely different problem. Very often, no crime (other than perhaps conspiracy or some infraction of immigration law) has occurred. The purpose of the current program is to stop an attack. Evidence need not be perfect, or even rise to the level of “probable cause” necessary to get a warrant. We just need to disrupt the enemy’s operation. That is — essentially — a military operation, whether or not it involves a “U.S. person” as defined in FISA. Yes, that is the harsh reality of today’s world: the jihad is forcing us to conduct military operations on our own soil, just as the Confederacy did 145 years ago. Get used to it.
Now, a word on the politics. Whether or not Bobbitt’s final charge — that Bush “secretly” decided that FISA’s application was unconstitutional and did explain why — is fair, it is certainly true that the Bush administration has not fought for the modernization of the FISA that by its actions it obvious thinks is necessary. Or if it has, it has not done so forcefully enough for me to have been conscious of it, and I pay a lot more attention to such things than most voters. So in addition to creating yet another needless “Bush lied” kerfuffle, it hasn’t done a good job of educating Americans about the difference between the new threat and the old challenge of Cold War espionage. It needs to do that very clearly. Perhaps it will do so in tomorrow’s State of the Union address. I certainly hope so.
If I were a Democrat with national aspirations, I would denounce Bush both for disrespecting the law and failing to “come clean with the American people” about the threat we face, and then demand that the FISA be amended to permit the analysis of digital signals, domestic or foreign, that suggest jihadi activity without a warrant. It will be interesting to see whether any Democrat has the stones required to do that.
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The Washington Post editors seem to have a fairly clear-eyed view of the Canadian election results:
ACCORDING TO his opponent, Canadian Conservative Party Leader Stephen Harper exposed “an agenda really drawn from the extreme right in the United States.” He favored the Iraq war, opposed the Kyoto treaty on global warming, and is a social conservative to boot. He might just become — heaven forbid — “the most pro-American leader in the Western world.” His victory would — O, Canada! — “put a smile on George W. Bush’s face.” Despite all those scary warnings, Mr. Harper and his party won Canada’s election on Monday. That put an end to 12 years of increasingly incoherent and corrupt rule by the Liberal Party — as well as the cynical and irresponsible attempt of its leader, outgoing Prime Minister Paul Martin, to use anti-Americanism.
. . .As for Mr. Martin, perhaps he will be tempted again by the example of Mr. Schroeder, who has taken a job as an agent for Russian President Vladimir Putin. Does Hugo Chavez need another lobbyist?
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