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Bush Quashes NSA Wiretapping Investigation
Posted by: Dale Franks on Wednesday, July 19, 2006

According to Attorney General Alberto Gonzalez's testimony before the Senate Judiciary Committee, President Bush personally blocked security clearances to Justice Department officials who were tasks with the job of investigating the legality of the Administration's NSA wiretapping program.
President Bush in effect blocked a Justice Department investigation of the National Security Agency's warrantless surveillance program, refusing to give security clearances to attorneys who were attempting to conduct the probe, Attorney General Alberto Gonzales said Tuesday.

Bush's decision represented an unusually direct and unprecedented White House intervention into an investigation by the Office of Professional Responsibility, the internal affairs office at the Justice Department, according to Bush administration officials and legal experts. It forced the office to abandon its investigation of the role played by department officials in authorizing and monitoring the controversial eavesdropping program, according to officials and government documents.

"Since its creation some 31 years ago, OPR has conducted many highly sensitive investigations involving Executive Branch programs and has obtained access to information classified at the highest levels," the office's chief lawyer, H. Marshall Jarrett, wrote in a memorandum released Tuesday. "In all those years, OPR has never been prevented from initiating or pursuing an investigation."
By way of explaining the president's decision, General Gonzalez told the committee:
"The president decided that protecting the secrecy and security of the program requires that a strict limit be placed on the number of persons granted access to information about the program for non-operational reasons," Gonzales wrote in a related letter sent to the committee's chairman, Sen. Arlen Specter, R-Pa. "Every additional security clearance that is granted for the (program) increases the risk that national security might be compromised."
Other Justice Dept. officials made a better case than the Attorney General.
Administration officials said Mr. Bush made the decision because he believed there were other avenues of oversight, including investigations by the inspectors general of the Justice Department and the National Security Agency as well as the Intelligence Committees of both houses.

“We had to draw the line somewhere,” said a senior Justice Department official who spoke on condition of anonymity because of lack of authorization to comment. “There was already lots of oversight on this program, and we had to consider the interest” in protecting the program’s secrecy by limiting the number of people who knew its details.

The official also asserted that while some lawyers might have questioned the legality of the surveillance program, there was never an issue of legal ethics, which is the purview of the Office of Professional Responsibility.

“We were trying to limit the scope of people who had access to all the details of the program,’’ the official said, “and a judgment was made that it was not worth reading these additional people into it.”
Apparently, however, this new acknowledgment that the president blocked security clearances wasn't universally known in the Justice Department.
The statement by Gonzales stunned some senior Justice Department officials, who were led to believe that Gonzales himself had made the decision to deny the clearances after consulting with intelligence agencies whose activities would be scrutinized, a senior federal law enforcement official said in an interview.
That, apparently, isn't true. George W. Bush is "The Decider" in this matter, not General Gonzalez.

The OPR's initial involvement came about as the result of a request by Rep. Maurice Hinchey (D-NY) to the OPR to investigate whether "Attorney General Alberto Gonzalez, his predecessor, then-Attorney General John Ashcroft, and other government attorneys acted properly in "authorizing, approving, and auditing" the Bush administration's and National Security Administration's domestic eavesdropping program".
Mr. Hinchey was as surprised as anyone not only when he received a response to his letter — that there was actually going to be a formal investigation. The head of the Justice Department's Office of Professional Responsibility, H. Marshall Jarrett, wrote back to Mr.Hinchey last February: "I am writing to acknowledge receipt of your.... letter, in which you asked this office to investigate the Department of Justice's role in authorizing, approving, and auditing certain surveillance activities of the National Security Agency, and whether such activities are permissible under existing law. For your information, we have initiated an investigation. Thank you for bringing your concerns to our attention."

But then last month, Mr. Jarrett wrote Mr. Hinchey again: "We have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program. Beginning in January 2006, this office made a series of requests for the necessary clearances. On May 9, 2006, we were informed that our requests had been denied. Without these clearances, we cannot investigate this matter and therefore have closed our investigation."
Rep. Hinchley, if he wishes, can, of course, write another letter. But, as a Democrat, in a government where both houses of the Congress are controlled by Republicans...that's about all he can do.

Based on General Gonzalez's testimony, we can now reconstruct more or less what happened. Rep Hinchley requested the OPR to investigate whether Justice department officials acted properly in approving the NSA surveillance program. OPR responded by initiating an investigation. when the OPR requested the appropriate clearances, the President of the United States rejected them, effectively denying the OPR the opportunity to investigate any of the legal ethics issues surrounding the program.

Is such an investigation warranted? Is the program legal? Is the method of the program's operation compatible with civil liberties? we really don't know the answers to any of those questions. Nor, by the way, are we likely to get them as long as the Republicans in Congress are willing to roll over like a weasel and expose their softer parts to the Administration, rather than engaging in any real oversight.

What is even more interesting is that, for the most part, the blog world hasn't jumped all over this. This is, frankly, a big deal. The president intentionally closed off an OPR investigation into the legality of the NSA surveillance program. This needs to be discussed. At the very least, this has the whiff of a arrogance about it. And it can certainly be argued that there's a whiff of coverup in preventing an inquiry by the DOJ.

Divider

Over the last few days, Jon has made some arguments in favor of limited support for Democrats, rather than Republicans. And he's taken some heat for it from many of our conservative readers.

In the context of Jon's argument, he makes the "Gridlock is good" assertion.

I would add an additional argument to the ones Jon has already made. The Republicans in Congress have no interest, for political reasons, in engaging in any serious oversight of the Bush Administration. So, there will be no serious oversight. This seems like a very good example of why effective oversight is necessary.

Even in a serious struggle against Islamic Terror—perhaps especially during such a struggle—it is dangerous to give any administration a blank check in conducting that struggle. Effective oversight provides a check—even if it's only through the mobilization of public opinion through bad publicity—to unbridled executive power. The president's assertions that he's doing a good job, and that everything is aboveboard, is simply not good enough. even if the president sincerely believes his own assertions...he may be wrong.

If the Republicans are unwilling to do provide oversight, putting principle above party, then the next best solution is to let Democrats take the House, knowing that House Committees run by democrats will perform such oversight.

I would prefer that Republicans keep the senate, just in case, you know, John Paul Stevens shuffles off this mortal coil, But Democratic control of the House is looking better and better to me.

Do I trust the Democrats on national security? Nope. Do I think they have any good economic ideas? Not really. But, where Libertarians and Democrats do have a natural alliance is in the area of civil rights. (And even there, I'll grant that, when it comes to things like affirmative action, our commonalities on civil rights fall apart.) Our charter, as I see it, is to support Democrats on issues where their party is pro-liberty, and support Republicans where their policies are pro-liberty.

In the proximate case, I don't know whether the NSA program is compatible with civil liberties or not. Nor do I know whether the administration, despite the assertions of the president, has struck an appropriate balance between civil liberties and national security. Nor, am I likely to know as long as the president refuses to allow investigations, and Congress looks the other way.

If Democrats are running the lower house, then there will be a check on the president's power, there will be a greater willingness to engage in oversight, and there will be a greater willingness to engage the administration on civil rights issues of interest to libertarians.

I have no illusions that the Democrats are generally friendly to libertarian ideas. But, I don't have any illusions that the Republicans are either.

Divider

This is gonna make so many of you angry with me, that there's no possible way I can resist doing it...

Commenter "Mona" points out that Glenn Greenwald has a post on this very issue:
When it comes to criminally prosecuting those who alerted Americans to the existence of this illegal eavesdropping, these alleged security concerns disappear, and all sorts of investigators are given full access to the details of the program to enable them to conduct an aggressive investigation. But when it comes to investigating whether the President and his legal advisors acted properly with regard to the same program, the President blocks any such investigation from occurring on the grounds that not even DoJ lawyers can be trusted to investigate.
I think this is exactly right. There are free security clearances for the asking to hunt down anyone who leaks things the president doesn't want leaked. Nothing is too sensitive to prevent clearances from being granted when leakers are the issue. But when the president's conduct is at question, then everything gets all secrety and stuff.

If only Mr. Greenwald could've stopped there.

*sigh*

Unfortunately, Mr. Greenwald couldn't bring himself to stop there.
As I have noted many times before, the critical point is not merely that the President broke the law, but that he knew he was acting illegally, as evidenced by the White House's repeated and ongoing attempts to block any judicial review of the President's behavior and, now, the President's personal efforts to block even DoJ investigations of the propriety of his conduct. The President not only blatantly breaks the law...
No, Mr. Greenwald. You believe the president knew he was acting illegally. And that's the whole problem. Your belief in the president's motives is an opinion. The evidence admits of alternate explanation. The president could simply be mistaken in his view of the executives wartime powers of surveillance. He may be stupid. Me may simply wish to avoid any adjudication on executive power as a matter of principle. Similarly, you believe the president broke the law. Unless you know more about the NSA program than the rest of us, I don't think you can actually state that as a fact.

So, just when I was prepared to give you an approving link, you veer off into moonbattery.

Still, once we move past the brief descent into crackpottery, Mr. Greenwald gets more or less back on track.
...in eavesdropping on Americans without warrants, but then attempts to block all courts from reviewing the legality of his conduct and block all investigations (by Congress and now even by the executive branch) into what occurred by invoking frivolous and inconsistent claims about national security.

Is there any grounds for reasonable dispute about whether our system of Government was intended to allow the President to violate a Congressional statute in secret and then block all courts from ruling on the legality of his conduct, and block all investigations into what occurred? If those circumstances do not reflect a President who believes he is above the law, what would?
This, again, is why I say there needs to be some portion of the Congress that is willing to stand up to the administration, provide effective oversight, and answer the many outstanding questions regarding the NSA surveillance program.

So, despite his unfortunate predilection for assuming the criminality of the president as an established fact, Mr. Greenwald is, in his central holding, perfectly correct.
 
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Previous Comments to this Post 

Comments
If the Republicans are unwilling to do provide oversight, putting principle above party, then the next best solution is to let Democrats take the House, knowing that House Committees run by democrats will perform such oversight
HAW HAW, you think the Dems will put principle above party if they get the House?
Is your idea of oversight wave after wave of "gotcha" committees and investigations designed to destroy rather than actually provide useful supervision?

May I submit to you that a situation like this can actually more damaging and harmful than the beneficial gridlock you assume will happen (but will never in a million years actually show up)
 
Written By: shark
URL: http://
Dale writes:
This needs to be discussed.
Wow, Dale, I so agree with you, but am mindful I’m not your favorite commenter and so I try to keep peace by not directly addresssing you. Also am I mindful that you’re no Greenwald fan. But it just so happens that he did speak to this issue in a longer post today, in these paragraphs:

As has been widely discussed, Alberto Gonzales admitted during testimony before the Senate Judiciary Committee that it was due to President Bush’s personal denial of necessary security clearances that the Justice Department’s Office of Professional Responsibility was unable to investigate the role played by DoJ lawyers in authorizing the President’s warrantless eavesdropping program. Back in May, Jeralyn Merritt posted some of the revealing correspondence regarding these efforts.

Undoubtedly, Bush followers will argue — as Tony Snow lamely did yesterday — that the Commander-in-Chief was simply trying to limit knowledge of this critical, illegal program to as few people as possible, but this paragraph from the Associated Press, by itself, dispenses with that excuse:
Yet, according to OPR chief Marshall Jarrett, "a large team" of prosecutors and FBI agents were granted security clearances to pursue an investigation into leaks of information that resulted in the program’s disclosure in December. Justice Department inspector general Glenn A. Fine and two of his aides were among other department officials who were granted clearances, Jarrett said in an April memo explaining the end of his probe. That memo was released by the Justice Department Tuesday.
When it comes to criminally prosecuting those who alerted Americans to the existence of this illegal eavesdropping, these alleged security concerns disappear, and all sorts of investigators are given full access to the details of the program to enable them to conduct an aggressive investigation. But when it comes to investigating whether the President and his legal advisors acted properly with regard to the same program, the President blocks any such investigation from occurring on the grounds that not even DoJ lawyers can be trusted to investigate.

As I have noted many times before, the critical point is not merely that the President broke the law, but that he knew he was acting illegally, as evidenced by the White House’s repeated and ongoing attempts to block any judicial review of the President’s behavior and, now, the President’s personal efforts to block even DoJ investigations of the propriety of his conduct. The President not only blatantly breaks the law in eavesdropping on Americans without warrants, but then attempts to block all courts from reviewing the legality of his conduct and block all investigations (by Congress and now even by the executive branch) into what occurred by invoking frivolous and inconsistent claims about national security.
 
Written By: Mona
URL: http://
HAW HAW, you think the Dems will put principle above party if they get the House?
Nope. I think they’ll got straight for the politics. That’s why I’m sure they’ll jump into their oversight role with glee.
 
Written By: Dale Franks
URL: http://www.qando.net
Didnt Reagan say proceed but verify, or something like that?
If congress does not provide oversight then its just a rubber stamp!

Anyways is there any proof of violations ?
What rights have been broken?

Shark I harken to the impeachment of Clinton over Bjob. Republicans are as petty as democrats! The whole sysytem is becoming a wheel in the oil spinning itself to nowhere.
 
Written By: x2master
URL: http://
Mona:

Delete your cookies in Internet Explorer. That will clear the QandO cookies that prevent you from posting with your new email address.
 
Written By: Dale Franks
URL: http://www.qando.net
Also am I mindful that you’re no Greenwald fan.
If by "not a fan" you mean I never read him prior to this week, then, I guess you’re right.
 
Written By: Dale Franks
URL: http://www.qando.net
Wow, Dale, I so agree with you, but am mindful I’m not your favorite commenter and so I try to keep peace by not directly addresssing you.
Hey, I publicly apologized to you for being a dick. You don’t have to walk on eggshells around me.
 
Written By: Dale Franks
URL: http://www.qando.net
Yeah. And we should have let the FDA investigate too, because there could have been some bad meat involved somewhere. And the FCC too, because I bet there were some cell phone calls involved. And let’s not forget the FEC because after all, we elected this *sshole President...

yours/
peter.
 
Written By: Peter Jackson
URL: http://www.liberalcapitalist.com
Mona quoting Greenwald - wow, imagine that...
 
Written By: bains
URL: http://
Delete your cookies in Internet Explorer. That will clear the QandO cookies that prevent you from posting with your new email address.
Does it make a difference that I use Firefox? And Jon tried to explain this cookie thing to me once before, but I’m so techno-stoopid I really couldn’t follow it.

Do I delete all cookies, and might that be bad? Or just those that will identify that they are attached to QandO?
 
Written By: Mona
URL: http://
Just those that are from QandO.

If you go into Tools>>Options in firefox, it lists all your cookies when you click on the View Cookies button. You need to delete the cEmail cookie specifically.
 
Written By: Dale Franks
URL: http://www.qando.net
Bains writes:
Mona quoting Greenwald - wow, imagine that...
Won’t be the last time, either. He’s a lawyer, I’m one too, and he insightfully addresses legal issues that intersect the political issues I find most compelling. So there it is.
 
Written By: Mona
URL: http://
Yeah. And we should have let the FDA investigate too...
Uh, it’s the DOJ that do criminal and legal ethics investigations. I’m pretty sure I read that in a book somewhere.

If you can’t grasp the significance of preventing the DOJ from investigating a legal matter, then I’m not sure it’s useful to try to explain it further to you.
 
Written By: Dale Franks
URL: http://www.qando.net
Didnt Reagan say proceed but verify, or something like that?
If congress does not provide oversight then its just a rubber stamp!

Anyways is there any proof of violations ?
What rights have been broken?

Shark I harken to the impeachment of Clinton over Bjob. Republicans are as petty as democrats! The whole sysytem is becoming a wheel in the oil spinning itself to nowhere.
Was there actually a point to your little screed, or was all that just something you needed to get off your chest?
 
Written By: Dale Franks
URL: http://www.qando.net
Dang good point Mr Dale.

Normally I would say a little secret activity is expected and Ok. Over and over little by little a pattern is beginning to emerge that it may be Ok for Bush to break the law because hes protecting us from the evil doers.....
Weak since there has technically been greater threats from world wars and the like without the need of kingly powers.
 
Written By: x2master
URL: http://
OK, I did what Dale recommended re: cookies; let’s see if it works — and wrt the update and Greenwald’s "moonbattery," I can only recommend that you read his book. It is calm and well-researched, and makes the case quite overwhelmingly that Bush knows his actions would be deemed illegal by the courts, so he evades them.

But your merely picking an an update from moi about a post of his in an even semi-approving manner is, well, unexpected at the least. Not that I’m complaining.

(Well, I hit preview and there the old freakin email address is again. Maybe I’ll try messing with it tomorrow — bed calls. Might I perhaps need to reboot? We shall see.

 
Written By: Mona
URL: http://
I was responding to shark about how bad the democrats would be at providing oversight.
I believe also that they would take that job with a big smile on their face.
 
Written By: x2master
URL: http://
Wow... Lawyers!
 
Written By: bains
URL: http://
wrt the update and Greenwald’s "moonbattery," I can only recommend that you read his book.
I don’t care how reasoned his book is. I’m not linking to his book. I’m linking to his comments from today.
 
Written By: Dale Franks
URL: http://www.qando.net
Mr. Greenwald brought his "all hyperbole, all the time" show to qando and whiffed mightily. He is the classic case of the flawed oracle. When he’s right, he’s ... a very good spokesperson for that point of view. When he wings it and does his "perorations for the jury" bit, only the acceptance of the fever swamp can accomodate his moonbattery. If you follow him religiously, you might be able to tell the difference. I prefer more reliable pundits who have some sense of proportion. What a weasle Mona is. She should be hustling drinks in a cabaret.
 
Written By: Robert Fulton
URL: http://
You know, with all these angels dancing on the head of all these pins, I get confused. Isn’t there one solitary, single *sshole out there who has been harmed by the terrible activities of President Bush, or who thinks he might have been (with enough credibility to meet the [almost non-existant] standards demanded by liberal judges) for a lawsuit to determine the legality of the NSA program?
I’m sorry, but when we are trying to protect ourselves from [Jesus Christ, do I have to tell you?] {all "pantywaist" comments from liberals, ignored] terrorist attacks, do we need to be refining our Constitutional fine points, absent any [and I do mean ANY] evidence of harm? So far as I can see, only crass political motives, based on the ignorance of the uninformed, is at work here.
 
Written By: Robert Fulton
URL: http://
Isn’t there one solitary, single *sshole out there who has been harmed by the terrible activities of President Bush...
Well, there was that Padilla guy, an American citizen picked up by the FBI in freakin’ O’Hare International, then held incommunicado in a navy brig for nearly two years as an unlawful combatant.

And American citizen, arrested on American soil, who was held without trial, without communicating with an attorney, and without charges. And, last I knew, Congress hadn’t suspended habeas corpus for American citizens.

So, you know, there’s one.
...or who thinks he might have been (with enough credibility to meet the [almost non-existant] standards demanded by liberal judges) for a lawsuit to determine the legality of the NSA program?
I dunno. I don’t what the NSA Surveillance program does. I don’t know who has been pinpointed by it. I don’t know if anyone’s been arrested, or like Mr. Padilla, held incommunicado.

I don’t know anything about it really. And, apparently, the president isn’t keen to let anyone in on the secret to the extent that we can be sure its either constitutional or legal.
I’m sorry, but when we are trying to protect ourselves from [Jesus Christ, do I have to tell you?] {all "pantywaist" comments from liberals, ignored] terrorist attacks, do we need to be refining our Constitutional fine points, absent any [and I do mean ANY] evidence of harm?
Any evidence of harm we know about. We don’t, in fact, know if any harm has been done or not. It’s a secret, you see.

I’m kinda curious though. Exactly when should we oppose government officials overstepping their constitutional grounds? Or, are we not even allowed to ask, because those officials are so keen to protect us?

Should the police be allowed to track our movements with GPS systems in our cars, in order to "protect us from criminals"? Maybe issue tickets automatically if the GPS system shows we’re violating the speed limit? After all, when we’re in our car, we’re in public, and therefore, have no expectation of privacy, in regards to our location. And if we don’t speed, we won’t get tickets.

I mean, where’s the harm. Only the bad people will have to worry, right?

But, please, don’t let me aggravate you. Please, trust your government, citizen. As Bill Hicks used to say, "You are free! To do as we tell you!"
 
Written By: Dale Franks
URL: http://www.qando.net
There are free security clearances for the asking to hunt down anyone who leaks things the president doesn’t want leaked. Nothing is too sensitive to prevent clearances from being granted when leakers are the issue.
And it couldn’t possibly be because secrets aren’t very secret after they are leaked. Nope.

And who cares about need to know, anyways?
 
Written By: Mark A. Flacy
URL: http://
Lets see.....H. Marshall Jarrett, a holdover Janet Reno appointee, is asked by four of the most extreme leftists in Congress - Henry Waxman (Bagman, Hollywood), Lynne Woolsey (friend of Saddam), Maurice Hinchey (to the Left of McKinney), and John Lewis (to the Left of Hinchey) - to use his DOJ Office of Professional Responsibility chartered to investigate DOJ Lawyers to cross over and investigate another Department’s Lawyers, DOD.

Reno appointee agrees! What a surprise! Despite none of his people having Defense Department Top Security clearances because they NEVER had the authority to get into it, or investigations of the "Constitutionality" of National Intelligence or Executive policy.

They do lawyer criminal or incompetence investigations related to lawyers duties in Justice’s chain of command as well as civilian law enforcement officers falling under DOJ authority.

So, when the NSA Inspector General, House and Senate Intelligence Committes, DOD Inspector General, FISA Court, and DOJ Intelligence and Espionage Investigation Agency caught wind of the overreach by Reno appointee Jarrett heading a civilian subagency not tasked with any investigation and oversight authority over Defense, Intelligence or National Security was sticking his nose in places far beyond his assigned duties, at the behest of 4 notorious Lefty Flamers —-lets just say happy cooperation in getting his investigators military top secret clearances on the nation’s most sensitive compartmentalized need to know secrets was not forthcoming.

Bush just personally kiboshed it - after getting an earful and saying no on his Executive Authority that since national intelligence gathering was need to know and the more who knew the greater the chances of compromise - and others with actual legal statutory authority were investigating the constitutionality of the NSA program, including the Appropriate Congressional Committees - Jarrett’s people were oh-so-subtly told to go back and focus on DOJ lawyers Bar rules misconduct, Fed Judges in Immigration taking bribes, FBI agents padding expense accounts - their approved ballpark. And of course leave the 4 Far Lefties end-around maneuver using a sympathic Clintonista high and dry...

This is similar to Spector, Graham, Schumer and other preening egomaniacs on Judiciary that think Judiciary - since it deals with lawyers and lawyers rule all - has instant higher-level dibs, the authority to take over any other Congressional Committees work. Which routinely leads to Intelligence, Banking, Commerce, Armed Services Committees telling especially Schumer and Spector to P*%$ off. Graham, fast emerging as the camera-loving foremost defender of enemy rights and the legal genius who sees all solutions in JAG rules he is familiar with, intended for American soldiers being applied to terrorists, is pretty much a RINO and a Chuck Schumer wannabe. If we get hit hard again, I hope his enemy-loving behavior comes back to burn his butt in a South Carolina primary challenge.
 
Written By: C. Ford
URL: http://
What? No Jewish conspiracy this time, Mr. Ford? I’m disappointed.
 
Written By: PogueMahone
URL: http://
I agree completely that it is a disgrace that for the first time ever a president has personallly intervened to quash an investigation by the DOJ Office of Professional Responsibility. I have long been convinced that the NSA program is in flat violation of FISA; since FISA contains criminal pohibitons, what that means is that the Bush Administration has erected and hidden a criminal program. No wonder the President does not want the OPR weighing in. Or the Supreme Court for that matter, which is why the Adminsitration has been trying so desperately to avoid judicial review. This isn’t new: it’s called "plausible deniability." Until an authoritative voice delcares the program illegal, the Bush Adminsitration can cling to the assertion that it is not illegal.

To the larger point, much as I dismiss Greenwald as a slippery self-promoter, he is right about this much: the Bush Adminsitration poses the gravest threat to the civil liberties of Americans that any president has in at least 50 years. Unfortunately, too, the Republican Congress has lost its institutional self-respect and refuses to engage in meaningful oversight. (Witness the latest example: Senator Specter’s abominable bill too gut FISA per the Adminstration’s want.) More unfortunately, the Democrats are worse. One might imagine that the party of the Administration would blindly follow the President, but the Democrats purport to be the opposition party in a political duopoly. Other than civil rights stalwarts like Senator Feingold, the Democrats have acted as unprincipled and cravenly as the Republicans. If the so-called oppposition party does not perfrom its function — and it clearly is not — the system, two political duopoly, simply does not function properly.

Now one might argue that since the Democrats control neither house of Congress they are effectively powerless. I don’t believe that. The opposition party can speak directly to the American people and, with the myriad means of mass communication now available, can do so to great effect. The Democrats have not done so and the country has suffered. I think that principled, vocal, persistent opposition plays an integral role in our government, regardless of whether the machinery is temporarily beyond the party’s control. Indeed, that is normally how the party out-of-power achieves power again. The Democrats’ overarching principle is political expediency. There cannot be focused, sustained opppostion to the Bush Adminsitration’s curtailing of civil rights. There cannot be serious oppposition to the Iraq War. In this, the political duopoly has become a failure.

What is the proper response? To elect Democrats, some say. But just enough to "neutralize" the Bush Administration. Putting aside for a moment the enormous logisitical complications in effectuating such a strategy, is this the best use of the time and energy of informed, motivated Americans? I think not. There must be a better way.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
"Well, there was that Padilla guy, an American citizen picked up by the FBI in freakin’ O’Hare International, then held incommunicado in a navy brig for nearly two years as an unlawful combatant."
And there’s actual Supreme Court precedence for the US gov’t actually executing the MFer with only a military tribunal for trial. What’s your point? That the Bush administration should assume the rules got changes on them casue they’re evil?

When did the rules get changed on them?
"And, last I knew, Congress hadn’t suspended habeas corpus for American citizens."
And d’you know, when the SC said the rules had in fact changed on them, the adminstration handed him over. Where’s the crisis?
"I don’t what the NSA Surveillance program does."
You know what’s been reported. If you in fact don’t know what’s been reported, then what the h3ll are you talking about?
"And, apparently, the president isn’t keen to let anyone in on the secret to the extent that we can be sure its either constitutional or legal."
The Congressional figures who are required to be briefed about unacknowledged special access programs were informed of it, both Republicans and Democrats. Now Rockefeller complained he didn’t understand the briefing—but I think that says more about Rockefeller than it does about the program.
"Any evidence of harm we know about."
You mean any evidence of harm you know about. You are not a Congressional figure who is statutorially required to be briefed about unacknowledged special access programs.
"Exactly when should we oppose government officials overstepping their constitutional grounds?"
When there’s actually evidence they are overstepping their constitutional grounds. Did you mean bounds?
"Should the police be allowed to track our movements with GPS systems in our cars, in order to "protect us from criminals"?"...
...and there follows some BS about GPS data logging and speeding tickets.

There’s a big difference, constitutionally—at least to go by long standing precedents of interpretation—between the police doing something for law enforcement purposes and the military doing something for wartime intelligence reasons. Different grants of authority, different actions are authorized.

You seem to have trouble with that concept.

There’s a difference between the military and law enforcement. Sometimes the LEO can do things the soldiers can’t, and vice versa.
"But, please, don’t let me aggravate you."
Well, don’t mind my pitying you. Your Constitutional comprehension kung fu is weak.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
David Shaughnessy wrote:
"There must be a better way."
Nope. If you have a political problem with what has historically been a perfectly constitutionally authorized sort of military intelligence gathering, and you want to call it crime, then you need to elect candidates willing to get their hands dirty doing your wetwork for you.

You could do the wetwork yourself, but I don’t think you’d call that a better way.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
ther than civil rights stalwarts like Senator Feingold...
No one who pushed the BCRA as one of its primary authors may be referred to as a civil rights stalwart.
 
Written By: Dale Franks
URL: http://www.qando.net
If you have a political problem with what has historically been a perfectly constitutionally authorized sort of military intelligence gathering, and you want to call it crime

It’s not what I want that matters. It’s what the law says. FISA unqmbiguously declares that the NSA wiretapping program is illegal, at the pains of criminal sanction. Which means that the NSA program is criminal. Moreover, there is surely no "historical[ ]" basis for asserting that the NSA program "is perfectly constitutionally authorized" because the Bush Adminstration has deperately scrambled to avoid just the kind of definitive review that would provide such an answer. Hardly an indication of confidence, just like the DOJ choosing in Hamdan not to argue Article II powers for fear of a ringing rejection from the Supreme Court. (Of course, that didn’t work out so well since the Court took the opportunity to smack the argument down anyway — see footnote 23, which, in my opinion, will eventually be as famous as Justice Jackson’s concurrence in Youngstown).)

Perhaps you are OK with the President breaking the law but I’m not. That is more than a political problem, though you are correct that the "solution" lies within the other political branch. Which, indeed, is my point: Congress has not done — and is not doing — its job. Will electing more Democrats fix that? I don’t think so. I think more systemic reform is necessary, though I will admit that the specific answer eludes me. That is why I am open to ideas.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
Just to make the point.

The assertion by the government that they have the power to fine you for not answering the "long form" census is way creepier.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
"It’s what the law says. FISA unqmbiguously declares that the NSA wiretapping program is illegal, at the pains of criminal sanction."

By historical precedent, Mr. Shaughnessy, declarations of war and the legally identical AUMFs are waivers to the requirements of the FISA, per the FISA. No one has explained why the Bush Adminstration should have expected for FISA to be anything other than waived.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
No one who pushed the BCRA as one of its primary authors may be referred to as a civil rights stalwart.
Perhaps in this context I should amend my description to "civil liberties stalwart," and there I am comfortable notwithstanding Feingold’s support of campaign finance reform. Indeed, I applaud efforts to end the corruptive influence of money on American politics, though I recognize that Supreme Court decisions in this area — like all others — must be accorded respect.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
By historical precedent, Mr. Shaughnessy, declarations of war and the legally identical AUMFs are waivers to the requirements of the FISA, per the FISA. No one has explained why the Bush Adminstration should have expected for FISA to be anything other than waived.

Mr. Perkins:

You are mistaken. There is no such "historical precedent" because no President before Bush has violated FISA. The AUMF-exception argument you allude to does not pass the straight-face test, meaning that you would be hard-pressed even in this Administration to find a lawyer who could —evne before Hamdan — make that argument to a court with a straight face. For those few who harbored such illusions, Hamdan demolished them. The NSA program is illegal. Period. That is why Senator Specter’s bill would make it legal; surely, there is no need to legalize something already legal.

I have to run, but I’ll check in later.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
"Perhaps you are OK with the President breaking the law but I’m not."
I’m OK with precedents of constitutional interpretation being followed unless it is a) clearly a counterfactual, and in this case as long as the information is not used for domestic law enforcement, it isn’t here, b) explictly overturned by statute, or c) being abused or misapplied.

By all historical precedent, FISA is void with respect to military intelligence gathering which is not used for law enforcement purposes.

Even if the SC were to declare the program illegal in som efuture decision, the Bush administration had no reason to expect it would do so.

Yours, TDP, ml, msl, & pfp
 
Written By: Tom Perkins
URL: http://
"There is no such "historical precedent" because no President before Bush has violated FISA."
To go by precedent, he still hasn’t—because declarations of war and AUMFs have historically meant the things FISA governs would be undertaken without further authorization.

In order for FISA to still apply, the AUMF involved would have had to explicitly state that unlike every other declaration of war and AUMF in history, that FISA would still apply.

That’s what a precedent is.

Also, Hamdan is post the AUMF and post the decision to implement the program. Ex post facto laws and decisions don’t work here.

Hence Specter’s bill.

An attempt to statutorially end a political witch-hunt conducted on constitutionally quite dubious grounds.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Shark I harken to the impeachment of Clinton over Bjob. Republicans are as petty as democrats
Do you lie, or are you just ignorant that it was a perjury charge and not a "bjob" charge?

Amazing how people on your side of the aisle tend to forget that tiny little thing.

Or lie about it deliberately.

Either way, you’ve proven too trifling to deal with further.
 
Written By: shark
URL: http://
Dale,

After discussing it with Peter last night I think the particular office being shunted aside isn’t much of a problem with me.

That it violates FISA may be a problem, but not a huge one. The administration feels FISA didn’t apply, others do. My feeling is that it does, but the administration fighting over the reach of congressional legislative authority is hardly a new thing. I suspect the program would have been pursued by the Clinton administration as well. As long as the appropriate members of congress were informed then it was up to them to determine if the program was within the bounds of the law as well as the offices that were charged with the task of monitoring the program.

I’ll be honest Dale, I don’t want us to know the details of the program. What I can’t get clear is, is it really true the appropriate members of congress were notified? If so, I can’t see how we know they didn’t appropriately oversee it. In the end, if we are going to have intelligence programs in secret, then we have to trust, absent grounds of gross misconduct on those representatives behalf, that they are being diligent. Secrecy and the publics right to know conflict. That it is now a "scandal" may only mean some people want to make hay over it.

Now, if we are arguing not to have secret programs at all, that is another issue, but this administration would hardly be a special case there either.
The assertion by the government that they have the power to fine you for not answering the "long form" census is way creepier.
No kidding, I could mention others as well, including most of my tax return. This and the other programs revealed are so at the margin of my civil liberties and privacy that I cannot fathom why we are drawing the line here. If we could make some bargain that would rein the administration in a bit in these matters but also get the governments far more intrusive aspects out of our lives in return, I would suggest we take that bargain in a heart beat. Especially:
Perhaps in this context I should amend my description to "civil liberties stalwart," and there I am comfortable notwithstanding Feingold’s support of campaign finance reform. Indeed, I applaud efforts to end the corruptive influence of money on American politics
With all due respect Mr. Shaughnessy, when did restricting my ability to speak on political matters, or support others to do so on my behalf, cease to be a civil liberty. That power was the liberty that our founders most wanted to protect despite John Adams and the federalists passing of the Alien and Sedition acts, which were perceived, and rightly, as an outrage. Now we can have our political speech curtailed even if we are not attacking the government. If laws restricting and punishing seditious political speech are an outrage, what are we to say to laws restricting speech with no grounds at all other than we think there is too much of it at election time?



 
Written By: Lance
URL: http://
Mr. Perkins:

I don’t think you understand the legal issues here. You state:
In order for FISA to still apply, the AUMF involved would have had to explicitly state that unlike every other declaration of war and AUMF in history, that FISA would still apply.
In fact, FISA specifically addresses its appplication during wartime. 50 U.S.C. § 1811 is a subsection of FISA. It is entitled, Authorization during time of war, and it states:
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.
Now even assuming that the AUMF constitutes a triggering "declaration of war," the law specifically provides that the President may authorize surveillance for only 15 days. By my count, that 15 days expired about 4 years ago.

I don’t mean to be disrespectful but your understanding of the legal terms "precedent" and "ex post facto" is simply erroneous. But I don’t have time to go into that now.

Getting to the nub of the issue, I think, is this comment you made about Specter’s bill to legalize the President’s "legal" conduct:
An attempt to statutorially end a political witch-hunt
I have two questions about this statement:

1. Where exactly are the "witchhunt[ers]" you mention? I sure don’t see many people calling for impeachment, though I strongly suspect you will should —as advocated by some — the Democrats take the House.

2. Your language is strongly reminiscent of the whining of the Clintonistas when Clinton broke the law. I called for Clinton’s impeachment. Were you also then opposed to such "political witchhunts," or is your opposition to such endeavors partisan-based?

 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
With all due respect Mr. Shaughnessy, when did restricting my ability to speak on political matters, or support others to do so on my behalf, cease to be a civil liberty. That power was the liberty that our founders most wanted to protect despite John Adams and the federalists passing of the Alien and Sedition acts, which were perceived, and rightly, as an outrage. Now we can have our political speech curtailed even if we are not attacking the government. If laws restricting and punishing seditious political speech are an outrage, what are we to say to laws restricting speech with no grounds at all other than we think there is too much of it at election time?
Yes, I recognize that the Supreme Court has interpreted the First Amendment to roughly equate money and speech. I doubt the correctness of this conclusion and I personally believe that the extraordinary influence on money is partly to blame for the degradation of American politics. But my own view is inconsequential. As I already mentioned, the Supreme Court’s interpretation must be accorded respect in a society based upon the rule of law. Sens. McCain and Feingold agree and they attempted to thread the needle of the Supreme Court’s interpretation of the First Amendment. I tend to think they failed; but I still believe it was a worthy effort. If nothing else, it is a recognition of the practical problem by those in the trenches.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
Too bad you couldn’t resist, guilt by association and all of that, you know.
 
Written By: David R. Block
URL: http://
Good post, Dale. I disagree with some of it, but you clearly are willing to approach issues with an open mind and actual analysis, which puts you a cut above much of the blogosphere (left and right). You’ve gained a reader.

My major quibble is this. You write:
The president could simply be mistaken in his view of the executives wartime powers of surveillance. He may be stupid. He may simply wish to avoid any adjudication on executive power as a matter of principle.

I think this position gives a little too much wiggle room to the president. Here’s what I wrote on this subject last night:

I suspect than an OPR investigation would have uncovered the fact that many attorneys within the DOJ had counseled the White House that the legal arguments they were relying on were dubious at best and highly unlikely to survive judicial scrutiny (as evidenced by Hamdan). I’m sure that many of the lawyers at the DOJ agree in principle with the Addington/Yoo theory of executive power, but there’s an enormous difference between finding an argument persuasive and believing that it is likely to carry the day in court. To take the most obvious example, many attorneys believe strongly that Roe v. Wade was wrongly decided. But there is no doubt that Roe is currently the law of the land.

Similarly, even before Hamdan, there was little doubt that under current Supreme Court precedent, neither the AUMF nor article II would likely be found to authorize the circumvention of FISA’s clear prohibition against warrantless wiretapping. Whatever else the lawyers at the Justice Department told the President, they must have told him how unlikely these arguments were to prevail in court should the program ever be challenged. And that warning severely undermines the President’s ultimate defense, i.e., that he was acting upon a good faith belief in the legality of his actions. This is why the OPR investigation had to be halted. Not because it threatened national security, but because it threatened the President, both politically and legally.
 
Written By: Anonymous Liberal
URL: http://www.anonymousliberal.com
Oh yes lied about Bjob, Still pathetic and petty Mr Shark!

Still on topic Secret programs need to be secret to work.
No one has pointed to any evidence of a crime being committed. While I say it is strange to block inquiries into the program I certainly can understand why more eyes and ears of congress critters could leak info that could violate national security in the name of partisanship.

Leave the spooks alone untill you have real proof of constitutional violations.



 
Written By: x2master
URL: http://
With all due respect Mr. Shaughnessy, when did restricting my ability to speak on political matters, or support others to do so on my behalf, cease to be a civil liberty. That power was the liberty that our founders most wanted to protect despite John Adams and the federalists passing of the Alien and Sedition acts, which were perceived, and rightly, as an outrage. Now we can have our political speech curtailed even if we are not attacking the government. If laws restricting and punishing seditious political speech are an outrage, what are we to say to laws restricting speech with no grounds at all other than we think there is too much of it at election time?
Yes, I recognize that the Supreme Court has interpreted the First Amendment to roughly equate money and speech. I doubt the correctness of this conclusion and I personally believe that the extraordinary influence on money is partly to blame for the degradation of American politics. But my own view is inconsequential. As I already mentioned, the Supreme Court’s interpretation must be accorded respect in a society based upon the rule of law. Sens. McCain and Feingold agree and they attempted to thread the needle of the Supreme Court’s interpretation of the First Amendment. I tend to think they failed; but I still believe it was a worthy effort. If nothing else, it is a recognition of the practical problem by those in the trenches.
I appreciate the response, but I think you miss the point. While the Supreme court may deserve respect, it has nothing to do with my argument. If the Supreme Court takes away my freedom of speech it doesn’t mean freedom of speech is no longer a civil liberty.

I don’t believe I or the Supreme court equates money and speech, they just realize that if I wish to speak to someone beside my neighbors that it will probably require some money. That is what the first amendment was about, the ability to engage in political speech unfettered by the state. They explicitly wanted people to have the ability to pay to print up broadsheets, hand bills, pamphlets, etc. They talked about those very things. There is no interpretation needed.

This was all before the self satisfying notion of the modern press existed. The press at the time was whoever could put out something printed. Now it includes TV, Radio and all the other forms we use to speak our opinions and desires. The founders would have found it very odd that the first amendment allows Penthouse magazine to exist but not a political statement in that very same magazine. I suggest we should get to see and hear both. That is a civil liberty, the most important civil liberty, and Feingold is no civil libertarian.
 
Written By: Lance
URL: http://
Lance,

I generally agree with your comment except:
While the Supreme court may deserve respect, it has nothing to do with my argument. If the Supreme Court takes away my freedom of speech it doesn’t mean freedom of speech is no longer a civil liberty.
I disagree. Nothing is black and white. Your "freedom of speech" is not absolute. There are permissible limits that can be placed upon the First Amendment in the context of political money, and those limitations are defined by the Supreme Court. As the Cato Institute has testified to Congress:
Plainly, in Article I, section 4, and Article II, section 1, the Constitution authorizes Congress to regulate federal elections. But, just as plainly, that regulation must conform to restraints imposed by the First Amendment to the Constitution. And here, the Supreme Court has said repeatedly that, under the First Amendment, campaign contributions and expenditures are protected speech. More precisely, the Court has said that regulations of political contributions and expenditures will be upheld only if they achieve a compelling governmental interest by the least restrictive means—the most difficult of constitutional hurdles.
So in Buckely v. Valeo, the Supreme Court struck down the expenditures limits but upheld the contribution limits. You are evidently a purist who rejects all limitations upon the First Amendment, at least with regard to politcal speech and money to finance that speech, so I imagine you reject that holding as well. But McCain and Feingold are political leaders and they are also politicians in the trenches. As I said earlier, McCain/Feingold recognize the insidious influence of unregulated money on American politics and they have attempted to address the problem within the parameters set forth by the Supreme Court. I don’t see why that disqualifies Feingold from civil libertarian status. In any case, if it makes things better, I’ll confine my praise of Feingold to upholding the civil liberties protected by FISA. Surely, you can agree that Feingold has done more for civil rights in that arena than nearly any other elected national leader.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
David,

Actually I am not a purist, no problem with purists, but I am not one. However I do believe protecting political speech is an area where the strictest constitutional protections should apply. Feingold wanted to get around them and what the spreme court had said in Buckley v Valeo. My view is the civil libertarian view, Feingold’s isn’t.

There are all kinds of practical problems with the effort as well, its favoritism to the already wealthy, the concentration in the hands of powerful media and sanctioning of it as a segregated entity, the driving of money into alternative vehicles, but that would be a very long comment, so I’ll stop.

I also am not someone to say that just because the Supreme court speaks, that an issue is decided properly. Luckily, despite stare decises, the court admits it has been wrong in the past as well. The Constitutional view I espouse represents the explicit view of the men who wrote the Constitution. Therefore, whatever I believe the Constitution should say, that is the way the issue should be decided. My beliefs have little to do with it. I have to live with all kinds of things about the Constitution that I am not so fond of, but that is the way it is.

So appeals to the Supreme Court do not change that, nor my views. As to FISA, that is a much more ambiguous area as to both what the Constitution authorizes and to what I might wish. I’ll let the rest of you be sure of that kind of thing. I am no purist there as you see.
 
Written By: Lance
URL: http://
I can only recommend that you read his book. It is calm and well-researched, and makes the case quite overwhelmingly that Bush knows his actions would be deemed illegal by the courts, so he evades them.

It seems to me that a calm and well-researched book might make an overwhelming case that something Bush has done IS illegal.

A book that purports to make an overwhelming case for what Bush "knows" in his heart, or purports to describe the secret ulterior motivations behind Bush’s decisions, is simply political propaganda.
 
Written By: Aldo
URL: http://

 
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