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Consider:

"It is better to be drunk with loss and to beat the ground, than to let the deeper things gradually escape."

- I. Compton-Burnett, letter to Francis King (1969)

"Cynical realism – it is the intelligent man’s best excuse for doing nothing in an intolerable situation."

- Aldous Huxley, "Time Must Have a Stop"

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Monday, 19 December 2005

Topic: Backgrounder

Documentation and Observations: Filling in the Corners of the Domestic Spying Dispute

As elsewhere, a unanimous Supreme Court decision in 1971 held that President Nixon did not have the constitutional powers as Commander-in-Chief to override any law, statute or other provisions of the constitution in order to preserve and protect the constitution of the United States. There were rules against spying on American citizens - spying here being defined as, without a warrant or congressional oversight or any judicial review, wiretapping and bugging and all that, and keeping secret files and all the rest. That was a no-no, a violation of the Fourth Amendment regarding illegal search and seizure. This secret spying is, of course, different than criminal investigation, where you get a warrant to secretly, or at least discretely, investigate suspicious activity that my be connected to a crime, one that has been committed or is being planned. That's fine. You ask for permission and almost always get it - the Fourth Amendment doesn't to forbid the government from fighting crime. But you have to ask. You just can't tap the phone or plant the bug without permission. You do a legal search.

That was the controversy as of Monday, December 19th - but this time it was President Bush maintaining he had the constitutional power to override any law, statute or other provisions of the constitution to do this domestic spying. The flurry of opinion throughout that day was intense.

In the morning the president held a press conference where he said just that - Bush Says U.S. Spy Program Is Legal and Essential (NY Times). He did this without any warrant or review, and he planned to keep doing it.

A few hours earlier the Attorney General said on the Today Show that congress, when they approved the 2001 resolution giving the president the authority to use force to deal with the threat posed by al Qaeda and Iraq's weapons of mass destruction, implied with the words "by any appropriate means" that they were granting the president permission to work completely outside the law. That's how he saw it. Thus there was no problem and all the outrage was misplaced. That contention is reviewed (with links) here - Congress Gave President The Authority To Spy On Americans. In a press conference later in the day the Attorney General elaborated. Of course in the press conference he argued that Congress had already implicitly authorized such a warrant-free outside-any-law domestic spying program, and then also said the administration declined to seek explicit authorization because "we were advised that that was not likely to be - that was not something we could likely get." Huh? So Congress had already clearly authorized it - but he knew they really wouldn't authorize it. But they did authorize it. But they wouldn't if they knew what was going on. But they really did authorize it. Really.

Fine. Make of that what you will.

But what to make of this from Jonathan Alter in Newsweek just a few hours later - "I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting, but one can only imagine the president's desperation."

Somehow the word "busted" comes to mind. One can be fairly safe in assuming the bad guys know we do everything we can to intercept and evaluate all the communication of theirs we can get our hands on, or our ears on, or whatever. What could the Times be doing here that would aid the enemy? The enemy knows we're listening. The Times story was about who gets to ignore the law. Is there any other reason to ask the Times to spike it?

Well, maybe there is, and that leads to the first curious Monday document.

The administration says they consulted with congress on this. But it seems they consulted with only a few committee chairs, and swore them to secrecy - they couldn't even speak to their staff about what they'd heard - and as these few have pretty much all said, it was hardly a consultation anyway.

They were told the administration was doing this domestic spying and bypassing the special and secret panel, the FISA court, set up in 1978 to approve such things - even though this panel had never turned down a request and was okay with stuff done without asking, as long as they were told within seventy-two hours. This wasn't asking what they thought of bypassing the rules and safeguards - these select few were just being informed it was happening.

And that prompted one of these few, Senator Jay Rockefeller, to release a handwritten note he sent the Vice President over two years ago after one of these "consultations."

This is very odd. The image is here and the text is this:

July 17, 2003

Dear Mr. Vice President,

I am writing to reiterate my concern regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, and Chairman Roberts and our House Intelligence Committee counterparts.

Clearly the activities we discussed raise profound oversight issues. As you know, I am neither a technician nor an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.

Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.

I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication.

I appreciate your consideration of my views.

Most respectfully,

Jay Rockefeller

Now that's something you don't see every day, and it raises all sorts of questions.

The first is with " I am neither a technician nor an attorney." Why would he need technical knowledge?

Josh Marshall here says that "over the last couple days I've heard informed speculation from several knowledgeable sources that what is likely really at issue here is the nature of the technology being deployed - both new technology and technology which in the nature of its method of collection turns upside down our normal ways of thinking about what constitutes a reasonable or permissible search."

Those of us who have worked in the world of information technology and built "data warehouses" know all about data mining and things like Bayesian and Dependency Networks and Sequential Patterns and Time Series. The tools exist to scan the thousands of terabytes of emails out there on all the email servers in the country, daily, "in order to find previously unsuspected relationships, which are of interest or value." It's not just looking for keywords anymore. And yes, this really does "turn upside down" our normal ways of thinking about what constitutes a reasonable or permissible search. And it is something the NSA can do, as many have reported. As one of Marshall's readers noted, "No FISA authorization would be possible, since this sort of activity was not contemplated by that law." That may be what's going on here.

Is that a good thing? Maybe so, and maybe not. But perhaps some sort of rules to safeguard against abuse should regulate such massive digging around. This is not exactly analogous to a "fishing expedition," where you want to nail someone but you have nothing so you just poke around. But it's close to that. Is using "pattern recognition" software on a billion random emails something for which you need a warrant? The question had ever come up. Now it has, or will.

Marshall notes other comments about the Rockefeller memo, like this -

I am sure you've read enough bureaucratic communications to know what this memo says: "When this hits the fan, I am keeping a copy of this so you can't take me down with you." I hope you explicitly bring this out in one of your postings. The consulted senators knew this was ultimately going to go nuclear.

And this -

To read Sen. Rockefeller's feeble handwritten letter is like reading a note sent from a jailed political prisoner, isn't it? This must be the "oversight" Bush was talking about this morning - giving a Senator an iota of information regarding extra-legal executive branch activities, prohibiting him to even tell his own staff, and then refusing to respond in any meaningful way when he writes a handwritten letter of concern to the VP ...

Well, that's life in Washington, isn't it?

And Marshall also here wants to clarify one point that he believes "has become muddled a bit in the discussion of the White House's legal argument with these wiretaps." He says Bush and the Attorney General are not really arguing that the Afghanistan War Resolution gave them "the authority to override whatever laws or constitutional prohibitions exist against these warrantless searches/wiretaps." They are actually arguing is that the Resolution affirmed the president's inherent power as commander-in-chief to do these things - the president's powers as a wartime commander-in-chief are essentially without limits and that "he's simply not bound by the laws the Congress makes." He says what gave them that idea was this legal opinion from the Justice Department advisor at the time, John C. Yoo. That's the second odd document.

The third odd document is from one of our California senators, Barbara Boxer.

She has a question -

December 19, 2005

Washington, D.C.- U.S. Senator Barbara Boxer (D-CA) today asked four presidential scholars for their opinion on former White House Counsel John Dean's statement that President Bush admitted to an "impeachable offense" when he said he authorized the National Security Agency to spy on Americans without getting a warrant from a judge.

Boxer said, "I take very seriously Mr. Dean's comments, as I view him to be an expert on Presidential abuse of power. I am expecting a full airing of this matter by the Senate in the very near future."

Boxer's letter is as follows:

On December 16, along with the rest of America, I learned that President Bush authorized the National Security Agency to spy on Americans without getting a warrant from a judge. President Bush underscored his support for this action in his press conference today.

On Sunday, December 18, former White House Counsel John Dean and I participated in a public discussion that covered many issues, including this surveillance. Mr. Dean, who was President Nixon's counsel at the time of Watergate, said that President Bush is "the first President to admit to an impeachable offense." Today, Mr. Dean confirmed his statement.

This startling assertion by Mr. Dean is especially poignant because he experienced first hand the executive abuse of power and a presidential scandal arising from the surveillance of American citizens.

Given your constitutional expertise, particularly in the area of presidential impeachment, I am writing to ask for your comments and thoughts on Mr. Dean's statement.

Unchecked surveillance of American citizens is troubling to both me and many of my constituents. I would appreciate your thoughts on this matter as soon as possible.

Sincerely,

Barbara Boxer

United States Senator

So what will the scholars say? Is President Bush is "the first President to admit to an impeachable offense?" This has "gone nuclear."

On the other hand, there is this charm offensive going on. The president gave four speeches in the run-up to the Iraq elections, gave an extended interview to Brit Hume on Fox News and one to Jim Lehrer on public television, gave his first speech from the Oval Office in years on Sunday night and Monday morning held a long press conference. He's suddenly all over the place, in what John Dickerson calls Bush's Long March to Candor.

As for the Oval Office speech -

This was only the latest display in Bush's month long march toward candor. Starting in late November, with the first of a series of speeches preparing the ground for the Dec. 15 Iraqi elections, the president started offering a little more reality and a little less spin. Likewise, in his Sunday night remarks, Bush tried to show he was "listening" to opposition lawmakers and his military commanders and reacting accordingly. He admitted mistakes and course corrections and leveled about the shaky future in Iraq. "We have learned from our experiences, and fixed what has not worked," he said, sounding fresh out of therapy. "We will continue to listen to honest criticism, and make every change that will help us complete the mission."

The promise of a more candid president is irresistible. It's insulting when Bush spins so wildly while claiming to be plainspoken. If he admits the obvious, the press can spend less time trying to make him do so and more on questions about future policy. Democrats might also be shamed into a more honest dialogue.

But should we believe that the president really has changed? Politicians and no-good boyfriends have traditionally used watery admissions to give the appearance of change without actually changing. Is Bush now listening and facing up to reality? Or is he saying he's listening, the better to tune out criticism and facts he doesn't want to hear?

Who knows? Dickerson has his views -

Bush still has a way to go with this whole candor thing. He says he's listening to his critics but then labels them as defeatists. Asked in his press conference Monday what he thought his biggest mistake was during his tenure and what he had learned from it, Bush didn't offer much. He saw the question as a trap, just as he did when I asked him the same question in April 2004. This time, he talked briefly about training the Iraqi civilian defense force poorly and moved on.

... Bush surely has the capability to be candid. Those of us who have talked to him off the record have seen it. White House aides have struggled for years to show that side of Bush to the public but always fail because Bush says things off the record that would get him crucified. It's not just rough language that he thinks would hurt him. Bush doesn't think he can speak plainly without his comments being taken out of context - without Democrats doing what the RNC is doing to them. Bush can say in private that he understands that the mere presence of U.S. soldiers helps feed the Iraqi insurgency, but in public he's never going to say anything that might look like he's undermining U.S. troops. If people think he's clueless because he won't speak this and others truths out loud, he's willing to suffer that.

It sounds like the man is trapped. And here Fred Kaplan suggests that in the Oval Office speech Bush close to delivering a frank and forthright speech "but in the crunch, he reverted to form and the by-now-predictable mix of fact, distortion, and fantasy."

Well, there's a lot of that going around, along with some odd documents.

Posted by Alan at 20:58 PST | Post Comment | Permalink
Updated: Monday, 19 December 2005 21:04 PST home

Topic: The Law

The Good Old Days Return

As reported by Nasser Karimi of the Associated Press, Monday, December 19, Iran's President Bans Western Music.

Mahmoud Ahmadinejad is at it again. Wasn't it just last week he said the Holocaust never happened, or was some sort of exaggeration? I think he called a myth. And didn't he also suggest Israel, if not wiped from the face of the map, should at least be removed from the Middle East and be reestablished in Europe? (Where? They have spare room in Slovenia?)

Now this - it's time to move the country back to the early days of the 1979 Islamic Revolution. Those were the good old days?

We're told that ditties like George Michael's "Careless Whisper," Eric Clapton's "Rush" and the Eagles' "Hotel California" have commonly accompanied Iranian broadcasts. Perhaps the "Hotel California" thing explains the seventy-six logons to Just Above Sunset from Iran in the last two years, and the two or more logons to the daily web log from Tehran each week - California Dreamin' and all that.

This ban is puzzling, but the AP item notes they had also played there a lot of tunes by the schlock jazz saxophonist Kenny G. You can get behind banning him. No problem.

In any event, the official daily paper over there said that Ahmadinejad, as head of the Supreme Cultural Revolutionary Council (think of Bill O'Reilly and the Christmas Wars), said this was now required - no more "indecent and Western music" on Islamic Republic of Iran Broadcasting. Enough is enough.

It seems western music, films and clothing are widely available in Iran, "and hip-hop can be heard on Tehran's streets, blaring from car speakers or from music shops." Who'd have guessed? And there seems to be a thriving black market for bootleg videos and DVD's of films banned by the state.

But they had an election. Ahmadinejad won convincingly, on a platform to clean things up. Of course Ayatollah Khomeini outlawed all music as "un-Islamic" back in the good old days, but then, after he was gone, you started to get a bit of light classical music on state radio and television. Things were slipping, and by the late eighties there were, of all things, a few public concerts. So this had to stop.

Ahmadinejad campaigned on a platform to confront "the Western cultural invasion" and promote Islamic values. And he won. So they move back to the good old days.

Well, the Fox News O'Reilly-Gibson effort to punish those who use "Happy Holidays" and not "Merry Christmas" in advertising and in the personal greetings of us all on the streets and in the offices and homes in America, and all the talk in congress about getting the FCC to expand its regulation of what we are allowed to see and hear beyond the pubic broadcast media to now include pay-for-access cable television and satellite radio (the new realm of Howard Stern), means we too want to return to the good old days. But that would be the Ozzie and Harriet fifties, not seventeenth-century Puritan New England, or so we all hope.

And that bring us to Martin Garbus, partner in the law firm of Davis and Gilbert. Time Magazine says he's "legendary" (in some circles) and "one of the best trial lawyers in the country." The National Law Journal says he's America's "most prominent First Amendment lawyer" - one of the country's top ten litigators. He's now involved a copyright infringement suit against that hip-hop fellow Eminem (Marshall Mathers). Garbus represents a composer, not the Mathers fellow. And yes, this cause would be moot in Iran.

He's also presently representing employees in a class action employment discrimination suit challenging Bush's "faith based" initiative, and flight attendants in a labor dispute against their union and American Airlines. He's busy. And there's much more at his bio - he represented Lenny Bruce against obscenity charges, handled the estates of Marilyn Monroe, Igor Stravinsky, John Cheever and Margaret Mitchell, and was the fellow who handled Mitchell case involving that parody of "Gone With the Wind." (He lost that one, as discussed in these page in 2003 here, and in 2004 here.) Along the way he's represented and advocated on behalf of Nelson Mandela, Vaclav Havel, Daniel Ellsberg and Andrei Sakharov. He's a big gun.

And he's worried about going back to the good old days. In an item co-written with Leonard Weinglass - one of the attorneys involved in the 1971 Nixon case where the administration then contended the president's powers as Commander-in-Chief at a time of even undeclared war overrode the privacy rights of citizens (domestic spying was necessary and legal) - he's say we're back there again.

That's here, and the New York Times headline from Monday, December 19, 2005 is, of course, Bush Says U.S. Spy Program Is Legal and Essential.

It's the same argument. "Both Presidents claim that their Constitutional powers as Commander-in-Chief include the right to override any law, statute or other provisions of the constitution in order to preserve and protect the constitution of the United States." Except Bush is winning this time.

Nixon lost -

A unanimous Supreme Court (the vote was 8-0, with Justice Rehnquist recusing himself because he was in the Justice Department legal counsel's office when the domestic spying program was formulated), with Justice Powell writing the opinion, in United States v. U.S. District Court, unambiguously rejected any such notion, articulating a clear-cut admonition to those who would diminish the import of the Fourth Amendment by suggesting that domestic spying at the whim of the president would be permitted under any circumstances.

So the Fourth Amendment, insofar as it protects us all from unreasonable search and seizure, seemed like a good thing then. As the fourth of the first ten amendments, the basic bill of rights, they didn't want to mess with it.

Then there was the exception -

... in a single aside, the court noted that previous presidents had engaged in domestic surveillance without securing warrants as part of ongoing efforts to secure foreign intelligence (mainly involving counter-espionage efforts directed against German and Italian embassies and counsulated by the Roosevelt Administration) and that the Court expresses no opinion on such efforts. That opening led to the enactment of Foreign Intelligence Surveillance Act (FISA) in 1978, a bill sponsored by Senator Ted Kennedy of Massachusetts with the blessing of the American Civil Liberties Union. FISA established for the first time in our history a "court" that existed outside the framework of the Fourth Amendment, a secret court that most Americans don't even know exists. It has a single function: to authorize by way of issuing warrants at the request of federal agents, surveillance within the United States on a minimal showing that the target is acting on behalf of a foreign power and that the foreign intelligence to be gathered is necessary for national security. The courtroom itself is in a vault-like chamber, a windowless room on the top floor of the Department of Justice, guarded by military security. There are seven rotating judges. The Court meets in secret, with no published opinions or public records. Nearly all of those spied upon never knew they were under surveillance.

No one, except the FISA judge involved and the Department of Justice knows what is done. No one, except the government and FISA judge knows who the warrants are aimed at. There is no review by anyone, neither the regular federal Appellate Courts nor the Congress, of its decisions. Over 15,000 search warrants, permitting eavesdropping, surveillance and break-ins, have been sought by the government and granted. Although the FISA court is required to determine if there are enough facts to justify a warrant, only eight times has it ever denied a warrant sought by the government. The FISA statute specifically gives the FISA Court the exclusive right to issue domestic spying warrants and that power has been generously exercised. There are more warrants issued by the FISA Court than by the over 1,000 district judges who sit throughout the United States in the Federal system.

So every administration since 1978 has had this super-secret court available to approve domestic spying. In the Times item above, reporting on the Monday the 19th Bush press conference, you'll note the president was asked why he felt he had to bypass this court. Heck, no one else had a problem with it. The president said it took too much time and speed was of the essence, or some such thing. Of course the law allows the spying, by wiretap or whatever, to take place without a hearing, as long as within seventy-two hours the court is notified about what was done and allowed to review what was done. What's the problem?

And it's not like these guys deny warrants, as you can see in this table (discussed here). They deny virtually nothing.

Something is up when this is not sufficient. Did Bush Domestic Spy Program Eavesdrop On American Journalists? That's possible.

Is this program, outside the law, being used to compile an "enemies list?" As Newsweek reported in their June 6 issue -

The bitter debate about John Bolton's nomination to the United Nations may have called unwelcome attention to the spying practices of the National Security Agency. Bolton told Congress last month that he asked the NSA for the names of Americans in raw intel reports. NSA rules prohibit the agency from spying on Americans; if electronic eavesdroppers inadvertently pick up American names, the NSA is supposed to black them out before forwarding reports to other agencies. But analysts and policymakers can make written requests to the NSA for U.S. names, which the State Department says Bolton did 10 times since 2001.

The Senate Foreign Relations Committee asked for more information about Bolton's requests, but the administration refused, leading to last week's vote to delay Bolton's nomination. Meanwhile, the Senate intelligence committee's chairman, Pat Roberts, and its top Democrat, Jay Rockefeller, got a closed-door briefing on Bolton's NSA dealings from the deputy intel czar, Gen. Michael Hayden. The senators agreed Bolton's initial NSA requests for U.S. names were legit. But the normally collegial Roberts and Rockefeller couldn't agree on whether Bolton handled the names appropriately once he received them. In dueling letters made public, the senators aired their differences. Senator Roberts argued that Democrats called unnecessary attention to intel "sources and methods" by raising Bolton's NSA dealings publicly. Rockefeller complained that Bolton sought out a State Department official whose name was supplied by the NSA "to congratulate him" - for unspecified reasons - which Rockefeller said was "not in keeping" with Bolton's request for the uncensored NSA report. Roberts said this charge was ill founded.

Something was up with that. There was lots of talk the Bolton was using the NSA intercepts to get back at people he didn't like, and who he thought were giving him and the administration grief. But the records weren't released and the matter disappeared. But now? Those people could be reporters or anyone who was making waves.

The senate did not confirm Bolton, partially because of this matter, so the president used a "recess appointment," while the senate was out of town, to name Bolton to the UN post, where he will serve, with no possible review, until after the 2006 mid-term elections, when we have a newly formed senate and it is seated. Very odd, isn't it?

But none of this matters. As of Monday, December 19th, the president is saying he will continue doing just what he as been doing, bypassing any judicial review of this domestic spying, not bothering with warrants, in order to keep us safe and free. It's for our own good. Things have changed.

Martin Garbus -

What is really happening is that the Bush Administration is seeking this moment to reverse the Nixon case and gather unto itself an unrestricted and unreviewable right to engage in domestic spying. The Supreme Court that decided United States v. U.S. District Court included Justices Douglas, Brennan, Marshall, Stewart and Powell. The Court that hears the Bush challenge will have Roberts, Scalia, Thomas, Alito and Kennedy, all of whom have shown in their previous cases great deference to the expansion of Presidential powers.

Nothing that has gone on before in this post 9-11 period, including the Patriot Act, will so drastically alter the rights of Americans to be free of governmental intrusion than a reversal of that landmark decision prohibiting government surveillance without a warrant.

But a reversal of the Nixon decision gets us back to the good old days. Nixon was piker compared to these folks.

As for Roberts, Scalia, Thomas, Alito and Kennedy deferring to the idea of an executive branch that should not be subject to the law, well, the new nominee, Alito, has already ruled in the Sixth Circuit that the president is kind of special in a way. Congress may pass the laws, but the president was inherently protected "from congressional pilfering." (That nomination had little to do with Roe v Wade, as you see.)

Besides, Congress Gave President The Authority To Spy On Americans - the Attorney General said so on the Today Show on Monday, December 19th, so it must be so.

Of course that's news to one senator -

Sen. Russell Feingold (D-Wis) responded to Gonzales' comments in an NBC interview this morning. "This is just an outrageous power grab," he said. "Nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror, including myself who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States. "There's two ways you can do this kind of wiretapping under our law. One is through the criminal code, Title III; the other is through the Foreign Intelligence Surveillance Act. That's it. That's the only way you can do it. You can't make up a law and deriving it from the Afghanistan resolution. "The president has, I think, made up a law that we never passed," said Sen. Russell Feingold (D-Wis.).

Yep, he has, but what are you going to do about it, Russ? The game is over. The good old days (before Nixon's attorneys blew it) are back.

Posted by Alan at 14:51 PST | Post Comment | Permalink
Updated: Monday, 19 December 2005 14:59 PST home

Sunday, 18 December 2005

Topic: Announcements

Wrapping it all up and adding photographs...

The new issue of Just Above Sunset, the weekly magazine-style parent site to this daily web log, is now online. This is Volume 3, Number 51 for the week of Sunday, December 18, 2005 - and contains extended and corrected versions of what first appears here, along with a wealth of new materiel. Think of it as a "week in review" - with new columns from London and Paris and lots of snazzy photography.

This has been an extraordinary week, from the major national and international stories, to some seasonal and local. The elections in Iraq went extraordinary well, even if the speeches explaining everything were dreary, but that was balanced by word of some odd things - the military keeping files on those who disagree with the administration, the sudden change in our policy on torture, the Patriot Act going down is flames (although it may rise again, Phoenix-like), and the president saying, flat out, he ordered an agency to ignore the existing and quite clear law and spy on Americans in America. There's much here on the legal theory that is being used to justify that.

Here in California we had an execution the stirred up a great deal of controversy, and the final life and death decision was in the hands of one man, the former movie star from all those films about vengeance and death. That's odd, but we put him in office. Nationally the "Christmas Wars" raged on, such is they are, and this last week they turned oddly Germanic, as in the Germany of the late thirties. That too was peculiar. There's lots of detail here.

The International Desk? This week from London Mike McCahill writes on both that extraordinary fire and the political fires smoldering there, while Ric Erickson provides two photo essays from Paris, one intimate (the little accordion shop) and one scenic (what's new at the Place de la Concorde).

Bob Patterson returns with a flurry of droll year-end questions from the World's Laziest Journalist, along with some thank-you notes, and in his role as Book Wrangler muses on the relationship of age and writing talent.

This week's photography has no overarching theme or single location, but you get a hummingbird caught in flight, and, for the season, some streets and vistas unlike those anywhere else in the world (well, it's Hollywood), and a bouquet of extraordinary blooms.

Given all that happened in the last seven days, it was hard to resist offering an array of entertaining quotes about politicians, so no resistance was offered, and that's what you get this week.

Direct links to specific pages -

Current Events ______________________

Lame Guesses: Teeing Up the Week - Which of these news stories will you be talking about tomorrow?
The Passing Parade: Incremental Changes and More of the Same
The Night of the Full Moon: Giving In When You're Looking Good
Governance: The Founding Fathers Superceded by John C. Yoo
Saturday Showdown: The Illegal Is Justified

Other Matters ______________________

Jurisprudence and Prudence: Justice in the State Governed by Former Movie Stars
The Christmas Wars: The Jewish Problem

The International Desk ______________________

Our Man in London: Roasting Chestnuts, and An Open Fire
Our Man in Musical Paris: Time for Chili
Our Man in the Heart of Paris: Cold Wheels

Bob Patterson ______________________

WLJ Weekly: from the desk of the World's Laziest Journalist - Fact Finding Isn't As Easy As It Seems
Book Wrangler: You're Never Too Young (Or Too Old) To Start A Writing Career

Southern California Photography ______________________

Hummingbirds: Motion Capture
Christmas Streets
Botanicals: Roses and More

Quotes for the week of December 11, 2005 - On Politicians

And that hummingbird in flight -

Posted by Alan at 15:39 PST | Post Comment | Permalink
Updated: Sunday, 18 December 2005 15:43 PST home

Saturday, 17 December 2005

Topic: Breaking News

Saturday Showdown: The Illegal Is Justified

"The illegal we do immediately. The unconstitutional takes a little longer." - Henry Kissinger, The New York Times, October 28, 1973

Yes, you don't have to be a weatherman to know which way the wind is blowing.

Elsewhere, in The Founding Fathers Superceded by John C. Yoo, digging under the disquieting events of the past week - from revelations that the military is keeping files on domestic dissidents (even Quaker grandmothers), to the administration agreeing to the McCain effort to state, flat out, we will not torture anyone, anywhere, to the senate refusing to extend the Patriot Act because it asked us to give up just too many of our rights, to Friday's news that the president had secretly authorized the National Security Agency (the NSA) to do domestic spying without bothering with warrants, ordering them to ignore a statute specifically regulating executive power - one could see something was up. A basic conflict was brewing, and it had to do the legal theory that the administration felt allowed any action the president took to be legal, no matter what statutes were on the books.

This is basic stuff, and the voices saying, "Now wait a minute," multiplied.

John C. Yoo was the Justice Department attorney who, from 2001 to 2003, provided the administration with the classified memoranda explaining why this "laws don't matter" approach was constitutional. As explained, that had two parts. The president's authority to override statute law derives from the 2001 congressional resolution authorizing the use of force to destroy al Qaida. Secondly, the congress, which passes laws, can only enforce them by either funding or not funding executive actions - they have no other legitimate power. As a corollary, the only other check on the executive's absolute power and autonomy comes every four years with the election of the president, where four years of unlimited authority are granted to the winner. It's an interesting theory.

In an email from Paris to here in Hollywood, Ric Erickson, editor of MetropoleParis, comments -

We survived 'voodoo' economics to get where we are - barely surviving. The question now is, can the United States survive Yoodoo law?

"The constitutional theory he espouses goes like this - neither the congress nor the judiciary (and by inference the laws they promulgate and interpret) have authority over an equal branch of government."

The axe cuts two ways. With the president having no authority over congress or the judiciary. Balances and checks. No branch more equal than any other.

"If anything rises to arguments before the Supreme Court on whether the administration acted unconstitutionally here and there - as in obviously breaking the law - these can be trotted out to explain things."

This is saying that the constitutional theories of a political hack - Yoo - carry more legal weight than the judicial opinions of the Supreme Court of the United States. If so, why have a Supreme Court?

I've said it before - lawyers are going to live a long time, have whole careers, with this mess. But what do I know?

Well, Saturday, December 17th, discussion of this theory jumped from the world of academics and legal scholars, and comments on the web, to the mainstream, with Scott Shane in the New York Times offering Behind Power, One Principle as Bush Pushes Prerogatives - "A single, fiercely debated legal principle lies behind nearly every major initiative in the Bush administration's war on terror, scholars say: the sweeping assertion of the powers of the presidency."

So it's out there now. Do we have a "constitutional crisis" on our hands? Maybe so.

Here's some detail on authorizing the National Security Agency (the NSA) to do domestic spying without bothering with warrants, ordering them to ignore a statute specifically regulating executive power (skim if you're not interested). From Daniel J. Solove there is this analysis -

In engaging in the surveillance, the President may have ignored the legal procedures set forth in the Foreign Intelligence Surveillance Act (FISA) of 1978.

The FISA allows the government to engage in electronic surveillance if it obtains a court order from the Foreign Intelligence Surveillance Court (FISC), which meets in secret. The government must demonstrate probable cause that the monitored party is a "foreign power" or an "agent of a foreign power." 50 U.S.C. § 1801. If the monitored party is a U.S. citizen, however, the government must establish probable cause that the party's activities "may" or "are about to" involve a criminal violation.

FISA even provides procedures for surveillance without court orders. Such surveillance, however, must be "solely directed" at gathering intelligence from "foreign powers" and there must be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." 50 U.S.C. § 1802(a). The surveillance authorized by the President, however, involved U.S. citizens, thus making ? 1802 unavailable.

FISA also has § 1844, which provides that "the President, through the Attorney general, may authorize the use of a pen register or trap and trace device without a court order under this subchapter to acquire foreign intelligence for a period not to exceed 15 days following a declaration of war by Congress." 50 U.S.C. § 1844. I don't know many details about the timing of the surveillance, but regardless of timing, the surveillance appears to have far exceeded the limited authorization in § 1844. The NY Times article suggests that the NSA may have engaged in wiretaps or other forms of electronic eavesdropping extending far beyond pen registers or trap and trace devices, which merely provide information about the phone numbers dialed.

Thus, it appears that the President brushed FISA aside. On what basis can the President ignore a statute specifically regulating executive power? I'm not an expert on the intricacies of the executive's military powers, so perhaps there's a justification. Thus far, however, the Bush Administration's "creative" interpretations of its legal authority to engage in surveillance, to detain enemy combatants, and to engage in torture seem to be just as "creative" as Bill Clinton's interpretation of what "sex" is.

Apparently, the President does have a legal rationale for his actions, but according to the NY Times article, it is classified. I believe that the President must give a full accounting of how he could believe in good faith this surveillance was within his powers under the law. And please, no more "creativity."

President must give a full accounting of how he could believe in good faith this surveillance was within his powers under the law?

Saturday, December 17th he just said it was, so stuff it. Instead of the usual Saturday morning presidential address, usually taped the night before and carried here and there (and no one much listens to it), he gave the Saturday address live on national television, and he looked irritated, maybe angry. He was definitely in a bad mood. He said, yes, he had authorized the NSA to bypass the law, many times, and whoever leaked this to the Times was in deep trouble, and by the way, the senate blocking extension of the Patriot Act was irresponsible and dangerous and could kill us all or some such thing.

The Washington Post account of this curious out-of-tradition Saturday blast is here and the Associated Press version here -

President Bush said Saturday he personally has authorized a secret eavesdropping program in the U.S. more than 30 times since the Sept. 11 attacks and he lashed out at those involved in publicly revealing the program.

... "This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power, under our laws and Constitution, to protect them and their civil liberties and that is exactly what I will continue to do as long as I am president of the United States," Bush said.

... Appearing angry at times during his eight-minute address, Bush left no doubt that he will continue authorizing the program.

"I intend to do so for as long as our nation faces a continuing threat from al-Qaida and related groups," he said.

So that's that. In your face, wimps!

How about this -

This appears to me to be a true "line in the sand" moment for America, with a president openly and defiantly declaring himself ready to continue a program that legal scholars, members of Congress and - according to the Friday New York Times article that started this all - several NSA analysts themselves believe to be unconstitutional.

There appears to be no acknowledgement whatsoever of concerns voiced by critics of the program. There is the feeling in the air about all this - and perhaps it's just me - that we are being forced to a constitutional crisis by a president who no longer believes he needs to wear a mask to court public opinion. This reeks of raw will and power.

Well, it does bring matters to a head, doesn't it?

As for the legal theory underpinning this all, as noted in these pages, there are lots of implications. Josh Marshall here notes that this Yoo logic links back to the cave-in to McCain on banning torture - "By that reasoning the president must also be empowered to override the new law banning the use of torture, thus making the McCain Amendment truly a meaningless piece of paper."

Yeah, lots of folks figured that out.

But here Marshall is just puzzled -

In his radio address today, discussing the NSA domestic wiretapping, the president said - "The existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk."

How can this be true?

If I'm understanding this correctly, this program allowed the president to conduct warrantless wiretaps in cases where he could have conducted the same wiretaps with warrants by seeking a warrant from the FISA Court. If the wiretaps were against the "international communications of people with known links to al Qaeda and related terrorist organizations" then the FISA Court certainly would have issued the warrants.

So it's the same difference.

Is it? He could have got the warrants. Ordering the NSA to specifically not seek them is the "something else that is going on." It's a power thing, and his pride (and ego) are involved. That's where the anger comes from. He doesn't like limits. He's the president.

This is going to be interesting.

And two details deserve mention. In the Yoo item, there was a rundown on why the Times delayed publication of this NSA story - the right saying the Times published Friday to screw up the vote on the Patriot Act and mess up Bush, or that they wanted to make everyone forget the news of the successful elections in Iraq to mess up Bush, or (Matt Drudge) this was all tied to a new book the reporters had coming out soon. And on the left folks were saying the Times delayed publication to make sure Bush was reelected in 2004 - some sort of plot by Judy Miller? Paul Farhi in the Washington Post here addresses the matter in great detail, including the internal battles at the Times to publish earlier.

Bob Patterson, columnist in these pages, says -

How very gallant of the New York Times to wait until after the "accountability moment called the 2004 elections."

How can we ever thank that bastion of journalistic integrity for their display of patriotism?

It's a lot more complicated than that.

Secondly, this business about the president by the Yoo reasoning must also be empowered to override the new law banning the use of torture, thus making the McCain Amendment truly a meaningless piece of paper, may be moot for an entirely different reason.

Lawmakers Back Use of Evidence Coerced From Detainees (NY Times) - "WASHINGTON, Dec. 16 - House and Senate negotiators agreed Friday to a measure that would enable the government to keep prisoners at Guantánamo Bay indefinitely on the basis of evidence obtained by coercive interrogations."

As you recall, Britain's highest court recently ruled that intelligence extracted by torture is not admissible in any British court. It never has been, but the Blair government argued when someone else does it, not the British, there should be an exception. There may be really useful stuff in what was "extracted." Tony got slapped down, and he was not happy. (Discussed last week in these pages here.)

We're going the other way. Senator Lindsey Graham was pushing this. And is winning the day.

See this in Newsweek as lobbying was underway -

... the Bush administration may still secure something of a victory in the Graham bill. According to an amended draft of the measure being circulated Thursday among the sponsors, Graham has agreed to language that loosens the restrictions on terror evidence that's obtained through "coercive" interrogations that may occur in other countries. Whereas Graham's previous draft had forbidden the use of such evidence - in accordance with standard rules of military justice - the new draft says that it should be barred only "to the extent practicable." The latest bill language also now says that the "probative value" of evidence should be considered - in other words, whether the information is persuasive.

In theory, this would permit U.S. military tribunals to use evidence obtained through torture or abuse in the prisons of other countries. The new Graham draft also adds more restrictions on the rights of terror detainees to sue or launch an action against the U.S. government outside of a narrow appeals process.

Wes Hickman, a spokesman for Graham, said he had no immediate comment on the negotiations. However, a Republican Senate aide who spoke on condition that he would not be named conceded that new language had toughened the bill. "There was a clause in the original bill that said the [tribunals] had to exclude any statements that were the result of torture or coercion. Now that's been changed to a 'consideration' clause that says the tribunal board must take into account the source of the information."

He contended the change had been requested by military judge advocates general.

It passed.

As noted here the Graham amendment already strips detainees of their right to file for habeas corpus. The amendment adopted by the senate did allow detainees to appeal tribunal findings to the courts, "but that doesn't get at one of the most important functions of habeas corpus: the right to ask why you're being held when the government has either held no hearing at all, or held one and found you innocent."

Like it matters?

Yes, we are holding people who have been found innocent by tribunals. We don't know where to send them now. Any spare rooms at the White House?

Anyway, this seem to be the first time we have allowed "the fruits of torture" to be admissible in any venue. We're not like the Brits.

And the administration is sitting pretty.

Posted by Alan at 12:55 PST | Post Comment | Permalink
Updated: Saturday, 17 December 2005 12:59 PST home

Friday, 16 December 2005

Topic: Breaking News

Governance: The Founding Fathers Superceded by John C. Yoo

And just who is John C. Yoo? He's a professor of law at the Boalt Hall School of Law at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He served as general counsel of the Senate Judiciary Committee, as a law clerk to Justice Clarence Thomas, and, from 2001 to 2003, as a deputy assistant attorney general in the Office of Legal Counsel of the Department of Justice. Last year, Yoo acknowledged that he was the fellow who had written a particular memo while at the Justice Department - the one arguing that physical interrogations had to cause damage on the order of major organ failure before they were considered torture under American law, and although that was interesting and important, it really didn't matter much because the commander in chief was exempt from such laws.

The constitutional theory he espouses goes like this - neither the congress nor the judiciary (and by inference the laws they promulgate and interpret) have authority over an equal branch of government. The president, in the pursuit of his duties as president, is not subject to the laws. Citizens can offer their judgment of his performance once and only once, every four years at the ballot box.

This is the "constitutional assumption" underpinning much of what the White House approves as policy or action. Why else, when asked why no one had been held accountable for any errors in intelligence about the threat Iraq rally posed to us, the mistakes on the ground after we took over the place, the misjudgments regarding how we'd be "greeted" and the difficulties in reconstruction, there was this exchange, just after the election, with the Washington Post -

WP: Why hasn't anyone been held accountable, either through firings or demotions, for what some people see as mistakes or misjudgments?

GWB: Well, we had an accountability moment, and that's called the 2004 election.

As Digby explains here, it's the Yoo reading of the constitution - the president has only one "accountability moment" while he is president. His re-election. Beyond that, he has been given a blank check. And that includes breaking the law since if the president does it then it's not illegal, the president being the executive branch that is not subject to any other branch of government. Congress has no right to abridge the president's war making powers. Its only constitutional remedy to a war with which they disagree is to deny funding.

It's all in Yoo's new book - The Powers of War and Peace (University of Chicago Press, October 2005).

You'll find a discussion of all this here from Christopher Shea in the Boston Globe - "In John Yoo's world, President Bush didn't need to ask Congress for permission to invade Iraq. And if the special forces captured a terrorist suspect who might know of an upcoming attack on the New York subway, Bush could order him placed on a torture rack - regardless of treaties the US has signed or whether Congress had passed laws banning torture."

The item explains Yoo's reasoning in some detail, and in historical perspective, and has some reactions - Michael J. Glennon, professor of international law at Tufts University's Fletcher School saying, ''Yoo concludes that for all intents and purposes we have an elected king." Lori Damrosch, a Columbia law professor, says the fact that President Bush sought congressional approval for the Iraq and Afghanistan wars, and that his father sought its blessing for the first Gulf War, shows that even they reject the Yoo position. Jane Stromseth, a professor of law at Georgetown, looking at our "founding documents" for support Yoo's position, comes up empty - ''The founders had a deep commitment to the idea that no one person should be able to take the country into war."

But Yoo is the man who has issued the key classified Justice Department legal opinions for the administration, and should anyone question what is going on, these can be used, behind closed doors, to argue whatever was done is constitutionally and legally just fine and dandy. If anything rises to arguments before the Supreme Court on whether the administration acted unconstitutionally here and there - as in obviously breaking the law - these can be trotted out to explain things.

Sorry for the long preamble, but this puts the events of Friday, December 16th, in context - Senate Rejects Extension of Patriot Act (AP) - "The Senate on Friday refused to reauthorize major portions of the USA Patriot Act after critics complained they infringed too much on Americans' privacy and liberty, dealing a huge defeat to the Bush administration and Republican leaders."

This was the same day the New York Times reported Bush Lets US Spy On Callers Without Courts. On the face of it, since wiretapping US citizens strictly requires a warrant, and they are easy to obtain quickly, and the president ordered the National Security Agency (NSA) to contact these wiretaps without involving any warrants, specifically telling the NSA not to involve any judge, panel or court, that's flat-out against the law. The Washington Post account is here Bush Authorized Domestic Spying.

As you see, the underlying conflict centers on what powers the chief executive and the executive branch has - what should be granted and what can just be assumed.

The sides line up, the traditionalists who think they understood Jefferson and the rest about the balance of powers in the constitution, and those who think Yoo's view on what Jefferson and the rest really meant is more compelling.

In this context too, as you recall, a few days earlier, this story broke - the Pentagon is spying on anti-war protesters right here at home. They say they're just trying to protect military bases from damage, but there was this -

The DOD database obtained by NBC News includes nearly four dozen anti-war meetings or protests, including some that have taken place far from any military installation, post or recruitment center. One "incident" included in the database is a large anti-war protest at Hollywood and Vine in Los Angeles last March that included effigies of President Bush and anti-war protest banners. Another incident mentions a planned protest against military recruiters last December in Boston and a planned protest last April at McDonald's National Salute to America's Heroes - a military air and sea show in Fort Lauderdale, Fla.

The Fort Lauderdale protest was deemed not to be a credible threat and a column in the database concludes: "US group exercising constitutional rights." Two-hundred and forty-three other incidents in the database were discounted because they had no connection to the Department of Defense - yet they all remained in the database.

They're keeping a list.

This also is illegal and falls under the Posse Comitatus business from 1878 and came up with the FBI, not the military, back in the sixties, when the FBI was infiltrating peace demonstrations and assembling dossiers on John Lennon and stuff like that. Domestic spying and secret dossiers are a no-no. Exceptions can be made, but you show cause and get a warrant, or now you don't. The law reads that you do, but the argument is that such laws do not now apply to the executive branch.

You see there was the 1978 Foreign Intelligence Surveillance Act, passed after the FBI and other agencies got flack for spying on Americans. That law gives the government - with approval from a mysterious court panel in the Justice Department - the authority to conduct these covert wiretaps and surveillance of suspected terrorists and spies, even if they are citizens and here in the United States. But you had to ask.

Forget about that.

It all comes down to the pre-war resolution where the congress voted to give the president the power to do "whatever was necessary" to deal with Iraq and with terrorism in general. From the Times -

Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States - including American citizens, permanent legal residents, tourists and other foreigners - is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation.

Did this resolution, in fact, confirm that the president, and by extension the executive branch, need not be hamstrung by any existing laws or treaties? Did the congress agree that their only remaining input into anything the nation does was to be to either fund or not fund what the president decides? Yoo provided the administration the legal opinion (classified) that this was precisely the case. The whole week was filled with the fallout from all that this implies.

As noted previously and discussed in detail, mid-week the administration "reversed course" and accepted Senator John McCain's call for a law banning cruel, inhumane and degrading treatment of foreign suspects in the war on terror. No more torture.

Why would the president concede? Perhaps it was more than the votes lining up in the house and senate - he couldn't stop this - and it was just moot. Nice law. Looks good on the books. Helps out image around the world. It just doesn't apply to me or to my administration. No big deal.

Of course some traditionalists, with the old view of the constitution, are pretty upset, like Jack Cafferty, CNN's "everyman" in this rant on Friday's "Situation Room" -

Who cares if the Patriot Act gets renewed? Want to abuse our civil liberties? Just do it! Who cares about the Geneva conventions? Want to torture prisoners? Just do it! Who cares about rules concerning the identity of CIA agents? Want to reveal the name of a covert operative? Just do it!

Who cares about whether the intelligence concerning WMD's is accurate? You want to invade Iraq? Just do it. Who cares about qualifications to serve on the nation's highest court? Want to nominate a personal friend with no qualifications? Just do it.

And the latest outrage, which I read about in "The New York Times" this morning, who cares about needing a court order to eavesdrop on American citizens? Want to wiretap their phones conversations? Just do it!

What a joke. A very cruel, very sad joke.

Yeah, well, that's the way it is in Yoo-World.

This Times scoop can, of course, be seen another way, as here -

This is against the law. I have put references to the relevant statute below the fold; the brief version is: the law forbids warrantless surveillance of US citizens, and it provides procedures to be followed in emergencies that do not leave enough time for federal agents to get a warrant. If the NY Times report is correct, the government did not follow these procedures. It therefore acted illegally.

Bush's order is arguably unconstitutional as well: it seems to violate the fourth amendment, and it certainly violates the requirement (Article II, sec. 3) that the President "shall take Care that the Laws be faithfully executed."

I am normally extremely wary of talking about impeachment. I think that impeachment is a trauma for the country, and that it should only be considered in extreme cases. Moreover, I think that the fact that Clinton was impeached raises the bar as far as impeaching Bush: two traumas in a row is really not good for the country, and even though my reluctance to go through a second impeachment benefits the very Republicans who needlessly inflicted the first on us, I don't care. It's bad for the country, and that matters most.

But I have a high bar, not a nonexistent one. And for a President to order violations of the law meets my criteria for impeachment. This is exactly what got Nixon in trouble: he ordered his subordinates to obstruct justice. To the extent that the two cases differ, the differences make what Bush did worse: after all, it's not as though warrants are hard to get, or the law makes no provision for emergencies. Bush could have followed the law had he wanted to. He chose to set it aside.

And this is something that no American should tolerate. We claim to have a government of laws, not of men. That claim means nothing if we are not prepared to act when a President (or anyone else) places himself above the law. If the New York Times report is true, then Bush should be impeached.

You can click on the link and click "more" to see the relevant statutes "below the fold," but you get the idea. The president ordered his subordinates to violate the law.

But then note this passage from the account in the Washington Post -

The NSA activities were justified by a classified Justice Department legal opinion authored by John C. Yoo, a former deputy in the Office of Legal Counsel who argued that congressional approval of the war on al Qaeda gave broad authority to the president, according to the Times.

That legal argument was similar to another 2002 memo authored primarily by Yoo, which outlined an extremely narrow definition of torture. That opinion, which was signed by another Justice official, was formally disavowed after it was disclosed by the Washington Post.

And what will happen with this one? It's hard to imagine this one will be disavowed. Friday morning, just after all this broke, on the "Today Show" Condoleezza Rice was saying, yeah, we did this, but we did nothing illegal. She knows her Yoo.

Of course, the problem really is not spying on Americas. Sometimes that may be justified - so you explain to a judge or some panel and get a warrant. They are some bad folks out there. Who would argue otherwise? The problem is who has to follow the law and who doesn't. The administration believes that the constitution explicitly authorizes that they need not follow the law, and they have the legal theory to support that. Others think Yoo is a nut and recently he was heckled when he spoke at UC Irvine out here. Constitutional law students gone wild? Something like that. He's become an odd sort of celebrity - the man who justifies the president as king.

Do recall these words from the president - "If this were a dictatorship we'd have it a lot easier. Just so long as I'm the dictator."

Everyone thought he was kidding. Now we have this - Shocked Lawmakers Demand Spy Program Probe (Katherine Shrader, AP). One thinks of Claude Raines in "Casablanca."

It comes down to Arlen Specter of Pennsylvania, chairman of the Senate Judiciary Committee promising hearings early next year. And he's a Republican.

Bush is saying nothing, because if he said anything that would "tie his hands in fighting terrorists." Bush said in an interview late Friday on "The News Hour with Jim Lehrer" on PBS - "I will make this point - that whatever I do to protect the American people - and I have an obligation to do so - that we will uphold the law, and decisions made are made understanding we have an obligation to protect the civil liberties of the American people."

No one at the NSA is saying anything. (The Times, curiously, says some of the folks at the NSA refused to do the wiretapping - they wouldn't go along, afraid if Kerry were elected they be in major legal trouble.)

We see also that "Vice President Dick Cheney and Bush chief of staff Andrew Card went to the Capitol Friday to meet with congressional leaders and the top members of the intelligence committees, who are often briefed on spy agencies' most classified programs." That must have been interesting.

And there's a twist too, as Tim Grieve points out here, quoting the Times -

"The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting."

Our question: When did the White House make its request, and what does "a year" mean? The Times is awfully light on details here, leaving itself open for speculation from the left as to whether the Times sat on the story through last year's presidential election. At the same time, the right is free to speculate about the Times' decision to run the story now, just as the Senate was about to take up and - as it turns out - vote down the reauthorization of the PATRIOT Act.

Yes, all day Friday you could read comments on the web from the right saying the Times published today to screw up the vote on the Patriot Act and mess up Bush, or that they wanted to make everyone forget the news of the successful elections in Iraq to mess up Bush, or (Matt Drudge) this was all tied to a new book the reporters had coming out next week. And on the left folks were saying the Times delayed publication to make sure Bush was reelected - some sort of plot by Judy Miller? Whatever.

Grieve called the reporters - Eric Lichtblau and James Risen - and asked. Why now? Why did you sit on this story for a year? Lichtblau told him to call Catherine Mathis in Corporate PR. She sent Grieve a FAX from the editor, William Keller. She didn't want to talk.

The reasons?

We start with the premise that a newspaper's job is to publish information that is a matter of public interest. Clearly a secret policy reversal that gives an American intelligence agency discretion to monitor communications within the country is a matter of public interest. From the outset, the question was not why we would publish it, but why we would not.

A year ago, when this information first became known to Times reporters, the administration argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country's security. Officials also assured senior editors of the Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions. As we have done before in rare instances when faced with a convincing national security argument, we agreed not to publish at that time.

We also continued reporting, and in the ensuing months two things happened that changed our thinking.

First, we developed a fuller picture of the concerns and misgivings that had been expressed during the life of the program. It is not our place to pass judgment on the legal or civil liberties questions involved in such a program, but it became clear those questions loomed larger within the government than we had previously understood.

Second, in the course of subsequent reporting we satisfied ourselves that we could write about this program - withholding a number of technical details - in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record. The fact that the government eavesdrops on those suspected of terrorist connections is well known. The fact that the NSA can legally monitor communications within the United States with a warrant from the Foreign Intelligence Surveillance Court is also public information. What is new is that the NSA has for the past three years had the authority to eavesdrop on Americans and others inside the United States without a warrant. It is that expansion of authority - not the need for a robust anti-terror intelligence operation - that prompted debate within the government, and that is the subject of the article.

Okay, they said please don't reveal any of this or the bad guys will kill us all. Yeah, it's all completely true, and running the story might tip the election the other way - but what about the bad guys? They'd know we were onto them.

This is pretty clever. For more of the same see The Big Stall: How Bush Gamed The Media To Get Re-Elected In 2004. So this Times thing actually was typical, and one tends to forget things like this - (AP) "CBS News has shelved a '60 Minutes' report on the rationale for war in Iraq because it would be 'inappropriate' to air it so close to the presidential election, the network said on Saturday."

These guys are good. And they had Yoo.

__

Footnote:

Sometimes there's not any constitutional issue. Sometimes there's just spin, to put it kindly.

As you recall, an issue for the last several weeks is all the business about the prewar intelligence. The Democrats were saying Bush and Cheney had spun everyone and that's why he got his "do anything necessary" resolution from Congress. The White House line was Congress saw the "same intelligence" the president saw and made the decision to go to war along with him. This is the "we were all fooled" defense - or the "you're as dumb as I am" gambit.

Now we have a report from the nonpartisan Congressional Research Service. One of our senators from out here, Diane Feinstein, requested it. You can find it here.

"The president and a small number of presidentially designated Cabinet-level officials, including the vice president - in contrast to members of Congress - have access to a far greater overall volume of intelligence and to more sensitive intelligence information, including information regarding intelligence sources and methods."

"... the president and his most senior advisors arguably are better positioned to assess the quality of the community's intelligence more accurately than is Congress."

It seems the executive branch withholds from Congress four types of intelligence: the identities of intelligence sources; the methods used to collect and analyze intelligence; "raw" or "lightly" evaluated intelligence; and "certain written intelligence products tailored to the specific needs of the president and other high-level executive branch policymakers," including the President's Daily Briefing.

So? Just stop saying that everyone saw the same stuff.

Posted by Alan at 22:08 PST | Post Comment | Permalink
Updated: Friday, 16 December 2005 22:31 PST home

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