Playing against type

Thursday, December 22, 2005
At this point, I suspect that the "NSA flap" is more or less over. I'll have some thoughts later — I hope; the day job is about to let me loose for a few days — about what we've learned, in particular about how things are different now than, say in 1972.

In the mean time, though, I think I ought to capture a few important links on the NSA story, so that anyone who has been following it here (in the off chance you haven't followed it anywhere else) will have them.

it's also interesting that several of them are places where the author is "playing against type":

  • Pejman Yousefzadeh argues against the NSA program. His primary objection seems to be that he doesn't see the necessecity of a program that doesn't include the FISA court orders. I think he's mistaken in this; that will be another topic of my pending post.

  • Bruce Fein agrees with Pejman in the Washington Times.


  • On the other hand, Professor Cass Sunstein, a noted liberal law professor at Chicago, believes the President's program is at least plausibly legal.

  • So does John Schmidt, Associate Attorney General from Clinton's administration.



Playing more to type, John Hinderocker presents his full analysis of the issue. His analysis very closely matches the official Department of Justice position(note PDF file), although Hinderocker objects to the DoJ 's position paper because it depends more on statute and less on the President's inherent Constitutional powers.

My conclusion: I still think the various arguments in favor of the legality of the NSA program are very strong, but there are respectable legal authorities on both said. What's more, the authorities are coming to unexpected conclusions on both sides. More to the point, however, is that when you hear someone say the program was "obviously illegal", or that Bush "knew he was breaking the law", you can be confident that the conclusion is being driven by desire or ideology or simple political experdiency.

Some other comments of potential interest:

31 comments:

terrye said...

Judge Napalatono {did I spell that right?} does not seem to think it is legal..But he is a very strict absolutist, and libertarians view the Constitution much like Pentacostals do the scripture.

I think it goes without saying that technology is going to force some changes here.

Maybe I missed something on all this, but in all seriousness if the US has a phone number of a terrorist and he is another country and he makes a call that ends up here, how can they get a warrant for that?

It would seem you would need to know in advance who he is going to call and where they will be.

Seneca the Younger said...

Even more important, I think, what happens if, say, someone has their phone forwarded? Plus, social network theory (I swear I'm writing something on that tomorrow) suggests we'd want to look at who the people in our phone book are calling.

Buddy Larsen said...

Terrye, did you see Congressman Nadler dismantle himself on the Hannity & Stupid show this eve?

Barry Dauphin said...

Also add Jonathen Turley to the Alter-list. On Nightline he stated that it was clearly illegal and that this was impeachable except Congress is controlled by Rebuplicans so it won't happen. It seems as if legal opinin is varied and many people don't know the details of the program. But the moonbats will have wet dreams at least through Christmas. Hey moonbats, Bush knows if you've been naughty or nice :>).

Papa Ray said...

Do you read Wired News?

Were you reading it four years ago?

Bush Submits His Laws for War

Papa Ray
West Texas
USA

ex-democrat said...
This comment has been removed by a blog administrator.
ex-democrat said...

Hindraker nails it. Legal opinions may vary, but that doesn't mean they're equally valid.

Syl said...

Napalitano doesn't think we're at war, or that if we are, it doesn't make a difference and still believes we have to have reasonable cause to believe someone is an actual terrorist, then get a warrant.

To him, it's not enough that someone may be conducting terrorist related activities--you know, like surveilling tall buildings, researching light planes and cable severing technologies, or soliciting funds for such activities.

It does boil down to prosecution after the fact vs prevention. And the civil libertarian purists simply will not go there.

Syl said...

terrye

if the US has a phone number of a terrorist and he is another country and he makes a call that ends up here, how can they get a warrant for that?

Exactly.

And you can't, even after the fact, because warrants are tied to specific persons. And if you're surveiling 500 calls at a time there ain't enough judges to handle it.

If analysis shows that an individual needs further surveillance, then the FBI can get involved and request a warrant.

Doug said...

The Dirty Duo:
(This from the original Times article)
According to those officials and others, reservations about aspects of the program have also been expressed by Senator John D. Rockefeller IV, the West Virginia Democrat who is the vice chairman of the Senate Intelligence Committee, and a judge presiding over a secret court that oversees intelligence matters. Some of the questions about the agency's new powers led the administration to temporarily suspend the operation last year and impose more restrictions, the officials said.
---
This is the Clinton Hack Judge that resigned today "as a matter of conscience,"
...a more likely reason is things were getting warm for these two leakers.
How did the Times become aware of Rockies concerns and his secret letter?
http://www.nytimes.com/2005/12/15/politics/15cnd-program.html?ei=5070&en=5ac7e484788a6d9c&ex=1135486800&pagewanted=print

Doug said...

"Bush Secretly Lifted Some Limits on Spying in the United States After 9/11, Officials Say."
---
This affair is a prime example of the Power the Times still has to influence events, as it did in the House and Senate this past week, as well as the national news.

DESPITE the fact that it was a bogus story about "secrets" that weren't secrets, and unprecedented actions that weren't unprecedented.
---
No finer example of a media double standard has been recently evident than in the furor that has evolved over revelations of National Security Agency eavesdropping.

To be more precise, the press response to The New York Times report on this subject last Friday is in stark contract to how they reacted in the ’90s when the Clinton administration was found to be engaging in extraordinarily similar activities.
American Thinker

Doug said...

WOLF: But there's no evidence that the Clinton administration actually went ahead and wiretapped American citizens without informing or using the FISA court?

TOOBIN: Absolutely not.
In fact, what the Clinton administration has said and did was that they followed the FISA law and the FISA law prohibited wiretaps of Americans without a court order.
---
TOENSING: The Clinton administration did carry out that authority when they went into Aldrich Ames' house without a warrant, and they argued before the House, Jamie Gorelick did, that they had the inherent --
the president had the inherent constitutional authority to do so.

TOOBIN: Ames pleaded guilty so there was never a court test of the appropriateness of that search, so I don't -- no court ever passed on it, but how -- what authority was the used I am afraid to say I certainly just don't know what was used.

TOENSING: Well, I can tell you what Jamie Gorelick said before the House committee. She said,
"We relied on the inherent authority of the president to conduct warrantless searches. "
All right, that's a quote.

WOLF: Do you know of any other examples, Vickie, besides the example that you cite?

TOENSING: No, I don't. But I'm well aware of that one. Nobody was crying for impeachment when Bill Clinton did it in the Aldrich Ames case.

Doug said...

“Jamie Gorelick, deputy attorney general, insisted in a written statement to the House intelligence committee that ‘the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes….’

“Ms. Gorelick says that in espionage cases, if the Justice Department tried to meet all the strict rules imposed on police in criminal matters, it would ‘’unduly frustrate’’ America’s counter-intelligence efforts.

“She says: ‘Physical searches to gather foreign intelligence depend on secrecy. If the existence of these searches were known to the foreign power targets, they would alter their activities to render the information useless.’’‘

Gorelick’s statement eleven years ago sounds a lot like what President Bush said during his press conference this past Monday:

terrye said...

Barry:

I saw part of that, but I was yelling at the TV and my feller was yelling at me to shutp he wanted to hear the TV so much of it was lost.

I just don't understand why this is such an issue now if previous presdients have done it without people threatening to impeach them.

Besides he notified both Justice and Congress, this was not secret wiretaps against political opponents.

David Thomson said...

“Judge Napalatono {did I spell that right?} does not seem to think it is legal..But he is a very strict absolutist, and libertarians view the Constitution much like Pentacostals do the scripture.”

Judge Napolitano is making a fool of himself. Our founding fathers were never libertarian absolutists. Justice Robert Jackson was right to say that the Constitution is not a suicide pact. Our liberties must sometimes be compromised during times of national danger. Can our leaders take advantage of this situation and use it as an excuse to install a dictatorship. Absolutely! This is why we must constantly monitor their behavior. Checks and balances are inevitably necessary.

Many Americans agree with Steven Spielberg apparently belief that terrorists merely need some love and understanding. It is our alleged imperialistic policies which endanger us. Getting rid of the Bush administration will get everybody singing Kumbaya.

Buddy Larsen said...

Well, David, morning news carries that two brigades of 'teeth' troops scheduled to embark for Iraq have just been stood down as 'no longer needed'. I tend to put that sort of news together as part & parcel of the war effort on other fronts--such as the NSA front. As Victor Davis Hanson (among others) so often points out, the war is won or lost when one side or the other 'feels' it is.

Peter UK said...

Where the absolutist libertarian standpoint falls down is reciprocity,if liberties are extended to all, then must be observed by all.

To bestow liberties on those who do not respect the liberties of others,and would indeed destroy those selfsame liberties is illogical.

Luther McLeod said...

Well put Peter.

"To bestow liberties on those who do not respect the liberties of others,and would indeed destroy those selfsame liberties is illogical."

Almost "Spockish" in its irrefutable logic.

Doug said...

"Judge Napolitano is making a fool of himself."
---
...and not the first time, I might add.
Seems an uninspired legal mind to me.
I'll take the 'Cheif, thank you!

Specter said...

Wanna see what "Chicken Little" Journalism has gotten the NYT? Check out this courtesy Michelle Malkin.

Doug said...

"If you reflect for a moment on the practicalities of the NSA program it should be obvious that NSA does not begin by targeting any "particular, known United States person." Rather, the initial targets of the program are almost certainly overseas al Qaeda operatives, often--perhaps usually--unknown or not fully identified. "
-Powerline

Doug said...

The Big Lie
Why does Tom Daschle have to follow up Ted Kennedy with another Big Lie?
Again, repeat after me,
Presidents Clinton and Carter approved these sorts of investigations;
Clinton’s Assistant Attorney General wrote an op-ed in the Chicago Tribune showing their legality, and “controlling legal authority.”.

Ed Lasky 12 23 05
Clarice Feldman adds:
Ex-Senator Tom Daschle, now a senior fellow at the Soros-funded Center for American Progress (CAP),weighs in on the NSA kerfuffle, indicating that even right after 9/11,
Senate Democrats tried to tie the President’s hands at preventing terrorist attacks:

Doug said...

Specter,
Yesterday Limbaugh noted that Paunch didn't build the company or make the money, and has no compunctions about frittering it away.

terrye said...

Wouldn't Atta have been considered a United States Person?

He had a visa. In fact in one of the more astounding instances of governmental stupidity his visa was renewed months after he killed himself and and thousands of other people.

So if Osama called Atta here in the US it would have been illegal for the Intelligence people to listen without a warrant?

What if all they had was a cell phone number and no name..how do you get a warrant?

It just seems silly to me. I honestly do not understand how this can be considered grounds for imprachment or anything like that.

FDR locked up Japanese Americans who had no known connection with Japan at all and nobody talked about impeaching him. How could that have been constitutional?

Peter UK said...

Terrye,
"What if all they had was a cell phone number and no name..how do you get a warrant?"

Which is the crux of the matter,the phones won't be registered to the carrier,in all probabilty they are prepaid disposable cellphones which are dumped after a certain time.

What doesn't seem to be taken into account is that intercepts of foreign numbers will turn up the US end user.
Likewise traces on cellphones.
It would be intersting to know by whom and why these call were being made.

Specter said...

"Senate Democrats tried to tie the President’s hands at preventing terrorist attacks."

I love that quote. They tried to tie his hands at preventing attacks. They wanted the attacks to happen so they tried to make it more difficult to prevent them?

Specter said...

Just a quick side note: It's 3Pm on Friday December 23, 2005 and not even a peep from ole' Fitz. I guess it won't be a Merry Fitzmas after all for the Dems.....shucks.....

LOL

RogerA said...

Damn--I am back and I am late: if the President didnt take such action against people who are trying to kill us, I would be really disappointed and file articles of impeachment myself--the "civil libertarians" need to go to saudi arabia, or al anbar province, or iran, or the people's republic of China, or the Democratic Republic of North Korea and get a REAL understanding of civil rights.

Doug said...

The Central Political Issue of the Day in One Paragraph
BY MARK HELPRIN IN Herd Animals"Irrationality on a political level from these quarters has never been a shock. O
n a personal level, however, the predominant response of the intellectual Left was a mystery.

It was as if the thousands of crushed and incinerated men, women, and children—those who threw themselves into a quarter-mile abyss rather than have the flesh seared off their bones as they stood in the wind at glassless walls, the small children who died in terror after watching hysterical fanatics slit the throats of screaming stewardesses, and so on, for there are almost three thousand stories—simply did not exist.

How does one explain such an egregious absence of sympathy (much less assertions that "they" deserved it, or that it was a work of art) among endlessly self-proclaiming empathetics whose stock in trade is to milk compassion even from the Rock of Gibraltar? This is a real rather than a rhetorical question, because it is significant of a great division."
.
American Digest

Buddy Larsen said...

Excellent post, Doug. Somehow dramatizing what this war is about seems to be the *only* cure for the cognitive problem the Left is either having or feigning.

Doug said...

When others on our local group were watching decapitation videos, I demurred.
All I needed to remind myself of the seriousness of the situation was to consider for a minute someone slitting a woman's throat in front of a planeload of children, women, and men.

Just recently on the radio someone said that 21 young women met their fate that way.

Don't know if it is true, but if so, it must be one of the finest MSM cover-up jobs to date.

But then, we have to go out of our way to simply view pictures of the poor people in the
Windows on the World, and etc.

Very Strange, very sick, and combined with the rabidity of the abortion lobby on top of 40 million lost souls, speaks to something other than good mental health.