NSA Eavesdropping Roundup
Here’s a sampling of reactions to yesterday’s new revelations about the (apparently limited) scope of the NSA program that George W. Bush has approved, in his own words dozens of times since 9/11…
Kevin Drum:
Administration apologists have argued that the White House couldn’t seek congressional approval for this program because it utilized super advanced technology that we couldn’t risk exposing to al-Qaeda. Even in secret session, they’ve suggested, Congress is a sieve and the bad guys would have found out what we were up to.
But now we know that’s not true. This was just ordinary call monitoring, according to General Hayden, and the only problem was that both FISA and the attorney general required a standard of evidence they couldn’t meet before issuing a warrant. In other words, the only change necessary to make this program legal was an amendment to FISA modifying the circumstances necessary to issue certain kinds of warrants. This would have tipped off terrorists to nothing.
So why didn’t they ask Congress for that change? It certainly would have passed easily. The Patriot Act passed 99-1, after all. Hell, based on what I know about the program, I probably would have voted to approve it as long as it had some reasonable boundaries.
So there must be more to this. But what?
Josh Marshall:
…[I]t’s just not clear why the administration didn’t get Congress to revise the FISA law to make these searches legal.
To me the whole thing remains a mystery. One school of thought would suggest that there must have been something shady going on, otherwise they would have just gotten the law changed and avoided any legal questions. As Kevin says, it’s not like it would have been that hard to get such an expansion through Congress in 2002 or 2003 or even today for that matter.
There’s another possible explanation, though — one that squares with my sense of this group in the White House. And that is that they have an ideological affinity — perhaps even a compulsion — for presidential assertions of extra-constitutional authority. Just on principle.
That is their mindset. It informs countless actions over the last five years. Still, it’s not enough. Kevin’s right. Something doesn’t fit. There must be something else.
John Hinderaker:
The most fundamental difference between the program authorized by President Bush post-September 11 and FISA is that FISA requires extensive paperwork designed to show probable cause that a person to be surveilled is connected to terrorism. Under the Presidential authorization for limited international surveillance, it sounds as though the standard is “reasonable belief” as opposed to “probable cause.” General Hayden was correct as to the constitutional standard. It is not unreasonable to intercept international communications that are reasonably believed to involve al Qaeda; therefore, the program is constitutional. http://powerlineblog.com/archives/012915.php
There are probably definitions of “reasonable,” “associated,” and “affiliate” such that this is a good idea — I can see the case that probable cause is too stringent a standard — but there are also definitions such that this isn’t a good idea at all. I have to assume that the administration resisted (and continues to resist) going to congress because they have a pretty expansive view of these things in mind. It’s not, after all, as if the current congress is wildly hostile to GOP priorities or super-solicitous American civil liberties. It’s certainly possible that everything’s fine here and Bush decided to break the law just ‘cuz he’s lazy or something, but I’d say we have a reasonable basis for assuming that this is not-so-benign and that’s why it was kept all hush-hush and outside the law.
Andrew McCarthy:
Critics argue that the passage of FISA has altered the constitutional field. That contention, however, has two insuperable obstacles. First, the Constitution cannot be altered by a statute — it is the supreme law of the land. This is why (as I argued on Monday), acts of Congress have long been subject to being held invalid if they violate the Constitution or attempt to modify its structure. Presidents used national-security surveillance authority for many years before there ever was a FISA. If presidents had that power in the first place because of Article II, Congress can do nothing to take it away.
Second, in 2002 — even after nearly a quarter century of FISA’s operation — the Foreign Intelligence Court of Review (the highest and most specialized court ever to review a FISA case) indicated that presidents maintain inherent constitutional authority despite the terms of FISA. Thus, administration critics are simply wrong when they argue that compliance with FISA is the sine qua non of lawful eavesdropping in the national-security arena.
…[T]he entire NSA dustup is a separation of powers fight—with those who dislike the President or hope to see executive powers better checked by a parliamentary-like legislature taking one position; and those who believe that the President needs, per the Constitution, to have certain war-time control of strategic military tools, including the gathering of signals intel, at his disposal where it is needed (and our enemy in this war operates at least partially from within the country) taking the other position. And I’ve further argued that the administration has taken advantage of the zealotry of anti-Bush and civil-liberties absolutists (as well as aggressive legal scholars who, like activist judges, tend to see themselves as secular philosopher kings) to coax them into making arguments that, though they may have no practical basis in fact, nevertheless conspire to make these critics look either weak or bureaucratically-constrained on national security issues. And they look this way for fear of running afoul of a statutory act that 1) may not in fact apply, under the conditions by which the program is actually being run (the standard of probable cause, however softened, still being prohibitive) 2) may not withstand constitutional scrutiny if asked to compete against Article II powers (this is the suggestion of the FISA appeals court, those like Griffin Bell who were around at FISA’s inception, and a thorough (rather than carefully excerpted) reading of Youngstown; 3) and are at the very least capable of being subject to compelling legal debate, making the charge that the President is a de facto lawbreaker a begging of the question.
I’ve seen a lot of people comment that the president needs these sorts of powers during times of war. Thats great. However, when will the “war on terror” end? The truth of the matter is: it won’t. Therefore, the president’s “war time powers” are now permanent and open ended under that argument.
Hokie’s point is a good one — as Bush has insisted, and as I believe, this somewhat unconventional WOT is going to go on for decades, and we simply cannot institutionalize unlimited Executive power to violate the duly enacted laws of Congress. To surveille on citizens w/ no judicial oversight.
I disagree with much that Glenn Greenwald argues on other issues, but on the NSA matter his legal analysis — and that of other lawyers in his comments — is spot on. Including his analysis of Hayden’s remarks. There just is no better site to understand the law involved. (And I have the creds to make that claim, having been stupid enought to go to law school.)
Well, I’ve made the point repeatedly that I think the program is necessary, but not necessarily legal, and called on Congress to explicitly authorize it. As to what’s gone before, we have the ACLU lawsuit which will now wind its way through the courts, so eventually this will settle out…
I just wish the Administration would have had the same thoughts as you, Mark. This debate is entirely different than one about whether such a program would be objectionable, helpful, whatever. I may not even have a problem with the idea of it, but I have a problem with the Executive Branch’s decision that it didn’t have to worry about whether it was legal or not before doing it.
But the point being made by other lawyers (Kerr is one, the fellas at Powerline are another) is that the Congress does not have the power to restrict the President’s Constitutionally granted war time powers. If the NSA program is spying on international subjects and communications that happen to then connect with a domestic individual, then this creates a grey area in the law and among the powers of the Congress and President. As evidence of this greyness I point you to the lawyerly disagreement.
But the point being made by other lawyers (Kerr is one, the fellas at Powerline are another) is that the Congress does not have the power to restrict the President’s Constitutionally granted war time powers.
That’s not what Kerr says. Kerr has written he believes Bush is likely violating the law (FISA, but not, in Kerr’s view, the 4th Am), and that his best guess is that the SCOTUS would so hold by 8-1.
As for Powerline, well, I try to always be civil and polite, but in my very strong opinion they are not behaving like objective legal analysts; they are whoring for Bush. I could explain why I think that, and have done so elsewhere in tedious detail, but it reduces to their making claims about the law that sound all legalese-ish and compelling to laypeople, but which other lawyers recognize as crap.
A fer instance: Hinderaker’s twice dismisisng Justice Jackson’s concurrence in the Youngstown steel case as “sloppy thinking.” That is so preposterous, and even Gonzalez parses the Adminstration’s action in terms of that Opinion, as does the Congressional Research Service. But Hinderaker wants it to not be in play because it is pretty much fatal to Bush’s claims.
“…they are whoring for Bush.”
Gee, ya think? They’ve always made no bones about where they stand politically – disagree with them or not, to accuse them of something so transparently obvious seems quite beside the point.
The only question I’m interested in amidst all of this legal parsing of language and intent is what does the actual public think about all of this? Here’s a new E.J. Dionne column from the WAPO that examines why the Dems are always failing at making these faux controversies stick:
http://www.washingtonpost.com/wp-dyn/content/article/2006/01/23/AR2006012301261.html?nav=rss_opinion/columns
I’ve said it way too many times, but again, until the Dems start acting seriously about our national security and defense, they’ll be wandering in the political wilderness for the forseeable furture, no matter what candidates they offer up for sacrifice.
This is very near to a gotcha moment in terms of demonstrating that Bush knows his NSA program is illegal, and that what he said via Gen. Hayden yesterday is pure codswollop. It is speeding around the Internet right now, so far mostly on the left blogosphere, but conservative Mark S. at Americanfuture has linked to it also, and gives it credibility. Others on the right will end up linking as well, if for no other reason than that it cannot be ignored.
Now, now. Let’s get our terms straight.
To “whore” is to misuse one’s talents on behalf of another for financial remuneration (for example, if our fine host were to write a post extolling the wisdom of Howard Dean in exchange for a hefty sum of money from the D.N.C.).
What the folks at Powerline do would more accurately be describes as “slutting” for Bush. They are doing it because they like and support him, not because he’s paying them to.
Clint: I sit corrected.
Well, really, impuning another’s motives and character are neither honorable nor qualitatively supportive of one’s arguments.
If you disagree with the Powerline dudes then make your case on the merits (Mona did this furtively with the reference to the Youngstown case). Also, it would be useful to your argument on the legal merits to enumerate your legal credentials – if, in fact, you wish to pick a fight with the lawyers that are Powerline.
I will say again: I am not a lawyer and not qualified to judge the legal(istic) merits of the arguments for and against the President’s authorized NSA Program, but even the most rudimentary reading of the legal opionons on the NSA situation can only lead to the conclusion that there is widespread disagreement on the legality of the Program.
Can we agree on that at least?
Oh, and for the record, spying on terrorists, regardless of where they reside, seems like a really, really good idea.
“But the point being made by other lawyers (Kerr is one, the fellas at Powerline are another) is that the Congress does not have the power to restrict the President’s Constitutionally granted war time powers.”
When did Congress declare war? Oh right, they didn’t.
Authorization to Use Military Force.