Decision ‘08

How To Spoil Glenn Greenwald’s Day

Put out an article on MSNBC entitled, “Whatever Happened to the NSA Furor?”

Among the highlights:

…[T]he NSA apparently continues to eavesdrop on Americans, and Congress seems increasingly likely to open the way to after-the-fact approval of the surveillance in legislation that may reach the Senate floor in the next several weeks.

Senate Majority Leader Bill Frist, R-Tenn., said Specter and other senators would confer in his office late Tuesday to decide on how to move ahead with an NSA spying bill.

Noted right-wing Bush Cultist Charles Schumer had this to say:

“I do not want to have it ended; I’ve never wanted to have it ended, I just want to make sure that somebody is overseeing it.”

The question naturally arises: does this make Schumer persona non grata among the progressives, like Joe Lieberman?…

UPDATE 03/01/06 2:23 p.m.: Never underestimate the enthusiasm of Mr. Greenwald for this story; despite my tongue-in-cheek title to the post, Glenn is positively giddy at the latest developments. You can share in his enthusiasm here…

On a related note, The Hill has a number of relevant articles today; you can jump off here, but note particularly the latest from Jane Harman, a plea to the President to work with Congress on putting the NSA program at a solid legal foundation…

19 Responses to “How To Spoil Glenn Greenwald’s Day”

1 Fred Says:
March 1st, 2006 at 12:23 am
Since Congress was suppose to be overseeing it, and was informed of its existence, is he saying that neither he nor his collegues were not doing their job?
2 AcademicElephant Says:
March 1st, 2006 at 12:33 am
Good lord–another bust. Which begs the question: is the Democrat platform now an effort to articifially drive down Bush’s poll numbers with a series of invented shock stories peddled by the media? To what end, exactly?
3 The Ugly American Says:
March 1st, 2006 at 9:43 am
LOL nice one Mark.
4 The Real Ugly American.com » Blog Archive » Blogrolls Best 3.1.06 Says:
March 1st, 2006 at 9:54 am
[…] Decision08 has a great post up titled How To Spoil Gleen Greenwalds Day. Noted right-wing Bush Cultist Charles Schumer had this to say: […]
5 Fargus Says:
March 1st, 2006 at 9:58 am
You oversimplify and misrepresent the issue by suggesting that progressives don’t want us to engage in eavesdropping. We do. We just want it to be legal, and the legality of the president’s program is what’s at issue here. Not the eissue of eavesdropping at large.
6 Mark Says:
March 1st, 2006 at 11:01 am
Fargus, do you support warrantless eavesdropping? Because that’s what Schumer is referring to…just curious…
7 megapotamus Says:
March 1st, 2006 at 11:10 am
If you declare you want it to be legal, you must have sound foundation to assert it is otherwise. I won’t ask you for it since the question is certainly open enough to recruit sound legal minds on either side so let’s go to court. I am pretty darn certain, given even FISA pronouncements on the precedents, Bush is well within the established parameters of his powers, not “no controlling legal authority”… a much higher standard than that. Frankly (and I’m no lawyer but work in the field) I haven’t seen a single court decision cited in the controversy that even bumps up against the practice of intercepting international telecoms, which is of course what we are talking about. As far as the “progressive” position on the program generally, it’s at least mixed and leans towards abolition far more starkly than, well let’s call them “regressives” the BobBarr, Buchananite types that likewise object on civil liberties grounds and flesh out the chorus on this topic. That’s not what we’re hearing in the Senate, not at this late date anyhow, but it is what is shrieked in the streets these days, n’est ce pas?
8 Fargus Says:
March 1st, 2006 at 11:19 am
That’s clearly not what he’s talking about, Mark. The “oversight” portion of his comment puts the lie to that. He says that he doesn’t want to stop eavesdropping on potential enemies.
9 Mark Says:
March 1st, 2006 at 11:42 am
But that’s what the Bush program is - warrantless eavesdropping. There is oversight (the program is reviewed every 45 days), but not a warrant…what Schumer presumably wants is to bring the oversight function to the FISA court, but I still think it would be warrantless…
10 Fred Says:
March 1st, 2006 at 12:30 pm
It would be warrantless under the theory that as Commander-in-Chief in wartime the President can direct his military forces and their intelligence arm as he sees fit.
You only need a warrant if you are going to use the information in a court of law, not if you are going to use the information on the battlefield.
Did FDR get a warrant to listen in on German emigma messages? Would he have even if they were transmitted into the US? Definitely not.
11 Jacques Distler Says:
March 1st, 2006 at 3:14 pm
You only need a warrant if you are going to use the information in a court of law, not if you are going to use the information on the battlefield.

That’s an interesting legal theory.

Not even Alberto Gonzalez claims that the Adminstration is free to eavesdrop on US citizens on US soil, without a warrant, as long as the information is to be used “on the battlefield,” rather than in a court of law.

The Justice Department needs your legal acumen, as their own justifications of the NSA warrantless eavesdropping have program have gotten a rather sceptical reception on Capitol Hill, in the FISA Court, and everywhere else (except among the die-hard Adminstration apologists, and even most of them are a little worried).

This new theory of yours might be just the ticket…
12 Mark Says:
March 1st, 2006 at 3:23 pm
Jacques, you may be interested in Greenwald’s latest, if you haven’t seen it - I’m about to update the post with a link…
13 Jacques Distler Says:
March 1st, 2006 at 3:41 pm
The Dean of Yale Law School doesn’t mince words, does he?

[But Fred knows better than the Dean of the first or second (depending on who you talk to) most prestigious Law School in the country.]

And I’m glad that people are starting to catch on to something I’ve been saying ever since watching Gonzalez’s testimony: the extent of the warrantless wiretapping seems (as Gonzalez hinted) to go far beyond the program revealed by the NYT.
14 too many steves Says:
March 1st, 2006 at 3:48 pm
Count me as irritated that it seems the Congress is willing to look the other way on the legality question as it forms modifications to the law to make the practice legal. I don’t object to the program. I object to an incomplete process; I really want the question of the legality of the President’s asserted authority to be answered.

Does that make me pedantic?
15 Mark Says:
March 1st, 2006 at 4:01 pm
Never! No loyal reader of Decision ‘08 can ever be accused of pedantry…
16 dmac Says:
March 1st, 2006 at 4:02 pm
No, you’ve made plain the same yearning I have as well - time for the critics to stop the nonsense and put up or shut up. Impeach the President, hold congressional hearings on FISA, and the rest. Let the cards fall where they may…
17 Fred Says:
March 1st, 2006 at 4:56 pm
We may not like it, but that’s the theory being discussed:

“On the Legality of the NSA Electronic Intercept Program”

“It has been widely suggested that the NSA electronic intercept program that has been carried out by the Bush administration for the last three years is, or may be, illegal. The New York Times and other media outlets have implied, without saying outright, that the program is unconstitutional or otherwise improper. The Democrats have picked the ball up and run with it; the Democratic National Committee sent out an email yesterday that characterized the program as “illegal surveillance” constituting an “explosive scandal.”

In fact, though, if one reviews the controlling legal authorities, it is hard to see what the fuss is about. For purposes of this analysis, I have assumed that the NSA intercepts electronic messages (phone calls and emails); that when the agency learns of a foreign cell phone or email address that is being used by a terrorist, it inputs that phone number or address into its surveillance system and is then able to intercept all incoming and outgoing communications; that the intent of the program is to intercept only international communications, i.e., those where at least one of the parties is located outside the United States; but on relatively rare occasions, communications between two people who are both located in the U.S. are intercepted. Under the governing legal principles, however, the precise details of the program shouldn’t make any difference.

The starting point, of course, is the Constitution. Article II of the Constitution sets out the powers and duties of the President. Some people do not seem to realize that the executive branch is coequal with the legislative and judicial branches. The President has certain powers under the Constitution, and they cannot be taken away or limited by Congressional legislation any more than the President can limit the powers of Congress by executive order.

Article II makes the President Commander in Chief of the armed forces. As such he is preeminent in foreign policy, and especially in military affairs. This was no accident; as Alexander Hamilton wrote in Federalist No. 74, “Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.” The federal courts have long recognized that when it comes to waging war, the President, not Congress or the courts, is the supreme authority. In Fleming v. Page, 9 How. 603, 615 (1850), the Supreme Court wrote that the President has the Constitutional power to “employ [the Nation’s armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy.”

No one questions this basic principle. 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.

There is one relevant constitutional provision that acts as a restraint on the President’s inherent power as Commander in Chief. That is the Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.

So all searches and seizures of Americans or their property (including, as the courts have appropriately ruled, interceptions of telephonic and electronic communications) must be reasonable. Note, however, that this requirement does not apply to terrorists overseas. A Special Forces soldier can pick a cave arbitrarily and search it. He isn’t trying to prosecute terrorists, he is trying to kill them. He doesn’t need probable cause.

The Fourth Amendment includes requirements for the issuance of search warrants, and many critics of the NSA program seem to assume that this means that all searches must be executed pursuant to a warrant. This assumption is wrong. There are dozens of situations where warrantless searches have been approved by the courts. The overriding principle is that searches of Americans (defined to include resident aliens) must be reasonable…..”

Powerline
December 22, 2005
18 peter Says:
March 1st, 2006 at 6:37 pm
These are the reasons why that argument is false:

1) While the Constitution gives the President the authority to wage war, it gives Congress the authority to declare war and to determine what the military can do. (Article I, Section 8: Congress shall have the power “to make Rules for the Government and Regulation of the land and naval Forces”). Congress fulfilled this responsibility by passing FISA legislation, which the Bush administration ignored.

2) The sentence “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” is misleading. There are no restrictions on the President intercepting telephone calls which originate and end overseas. However, FISA restricts his authority to intercept telephone calls which originate or end on American soil by requiring warrants. Similarly, while the President can order the killing of a terrorist overseas with a declaration of war, but he cannot order the killing of a terrorist on American soil.

3) While “there are dozens of situations where warrantless searches have been approved by the courts,” these situations are irrelevant to electronic surveillance. Examples of warrantless searches which are constitutional include customs searches, airport checkpoints, traffic stops (e.g., a cop can search a vehicle if there is the smell of marijuana without a warrant), and when obtaining a warrant could lead to the destruction of contraband before the warrant can be issued. These searches are legal without warrants because of the obvious logistical difficulties arising from getting a judge to issue them. However, they are not relevant to FISA, which allows a 72 hour grace period for the government to acquire a warrant.
19 too many steves Says:
March 2nd, 2006 at 8:58 am
Now for a theory on the politics:

The opponents of the President’s “illegal” activity (not scare quotes, just signifying the question remains open) have decided:

1. That they will lose the legal argument.
2. That by demanding the legal question be settled they will be seen as weak on fighting Terrorism and those that perpetrate it.

Could be either or both?