A Stitch in Haste

Meet the Press:

SEC'Y RICE: [T]he president has drawn on additional authorities that he has under the Constitution and under other statutes.

MR. RUSSERT: What are the other authorities?

SEC'Y RICE: Tim, again, I'm not a lawyer, but the president has constitutional authority and he has statutory authorities...

[...i.e., for warrantless wiretapping of American citizens in defiance of the Foreign Intelligence Surveillance Act.]

This exchange occurred twice:

SEC'Y RICE: He also has constitutional authorities that derive from his role as commander in chief and his need to protect the country. He has acted within his constitutional authority and within statutory authority.

Now, I am not a lawyer.

---

Translation:

"I can tell you unequivocally that the president is acting constitutionally, but I can't tell you why because I have to equivocate by saying I'm not a lawyer..."

Or, if you prefer:

"Just trust me, even though I openly admit that I don't know what I'm talking about..."

Condi for President?

Not in this lifetime.

UPDATE: Obviously embarrassed by Rice's performance, the White House has deployed someone who is a lawyer to try to defend this indefensible policy:

"Our position is that authorization to use force, which was passed by the Congress in the days following September 11, constitutes that other authorization ... to engage in this kind of signals intelligence," [Attorney General Alberto] Gonzales said.

But he conceded: "One might argue, now wait a minute, there's nothing in the authorization to use force that specifically mentions electronic surveillance."

So now we've gone from "clear" statutory authority to "one might argue" statutory authority. And of course there is no constitutional authority for warrantless eavesdropping under any circumstances; there is only constitutional circumvention. Go figure.

The Vice President on the warrantless wiretapping scandal:

Vice President Dick Cheney on Tuesday vigorously defended the Bush administration's use of secret domestic spying and efforts to expand presidential powers, saying "it's not an accident that we haven't been hit in four years."

Perhaps, but it's also not an accident that the American people are, overall, somewhere between "upset" and "furious" over the revelation.

Yes, there are very arcane legal issues swirling around the triumvirate of the Fourth Amendment, the Foreign Intelligence Surveillance Act and the Authorization for Use of Military Force Act. And perhaps reasonable minds can disagree as to whether these provisions allow or proscribe what the National Security Agency did.

But that's the whole point. These issues are complex, not "clear" as senior White House officials initially and arrogantly declared. These are difficult questions, and they should have been treated as such. This the White House did not do.

Detailed expert analyses of the legal and constitutional issues are appearing elsewhere. But here are the not-so-complicated legal principles that the American people are going to focus on:

--"You need a warrant or a writ or something..."

--You could have gotten a warrant from the secret court created expressly for this sort of thing.

--A declaration of war does not turn the President into a dictator.

--"Commander-in-chief" refers to the military, not spying on American citizens.

--The War on Terror is not a "traditional" war, and the traditional expansive view of presidential powers in time of war is therefore not entirely applicable to the War on Terror, any more than it would be to the "War on Drugs."

--Notifying a handful of senators (and then swearing them to secrecy) is not "proceeding with the approval of Congress."

These may be simplistic or even incomplete legal concepts. But that does not mean they are fundamentally wrong. The Administration is going to be hard-pressed to fall back, as has been its approach thus far, on the twin prongs of "just trust us" and "it's technical." This is too important to be technical.

The War on Terror notwithstanding, Americans do not want to have to trust our elected leaders, and they do not want the Constitution to be "technical."

Never let it be said that President Bush suffers from a foolish consistency:

"Any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order," [Bush] said on April 20, 2004 in Buffalo, New York.

"Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so," he added.

On April 19, 2004, Bush said the Patriot Act enabled law-enforcement officials to use "roving wiretaps," which are not fixed to a particular telephone, against terrorism, as they had been against organized crime.

"You see, what that meant is if you got a wiretap by court order -- and by the way, everything you hear about requires court order, requires there to be permission from a FISA court, for example," he said in Hershey, Pennsylvania.

But by contrast, as I mentioned in a previous post, the Vice President was always open and honest about his position regarding the warrantless wiretapping scandal, right?

Vice President Dick Cheney offered similar reassurances at a Patriot Act event in June 2004, saying that "all of the investigative tools" under the law "require the approval of a judge before they can be carried out."

I suppose next will be the "Santa Claus" defense -- we lie to you to make you feel good. And of course these statements were not made under oath, so, like the pervert president before him, there was, technically, no perjury by Bush.

Either that or we will merely be subjected to the tired old "we must do anything to defend our way of life" platitude.

What "way of life" is that again? The one where presidents lie, laws are ignored and Congress and the courts are deemed untrustworthy and unreliable nuisances?

How I yearn for the days when all we had to fight were marriage amendments.

The White House, and a parade of conservative shills, are insisting that the warrantless wiretapping scandal is not a scandal at all.

A key embarrassment that requires extra-special (and extra dubious) talking points is the "ticking time bomb" defense (I prefer the term "Jack Bauer defense"). This is a particularly difficult sell for the simple reason that the Foreign Intelligence Surveillance Act specifically allows intelligence agencies to "wiretap first and get a warrant later" -- as much as 72 hours later. The secret court that issues secret wiretap warrants is therefore not a dangerous obstacle to preventing imminent threats.

Which isn't stopping the apologists from insisting that even a secret, post hoc court is sometimes "just too much to ask."

Someone in the know disagrees:

A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush's secret authorization of a domestic spying program, according to two sources.

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.

Every unbiased, objective analysis of the warrantless wiretapping scandal insists that, one way or the other, the practice is questionable. Now even those embedded in the process are saying the same thing.

So much for the apologists' insistence that authority for the warrantless wiretapping is "clear" or "well settled."

Richard Posner has a piece in today's Washington Post that is likely to befuddle many of his acolytes:

The ... National Security Agency has been conducting, outside the framework of the Foreign Intelligence Surveillance Act, electronic surveillance of U.S. citizens within the United States.

These programs are criticized as grave threats to civil liberties. They are not.

The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy.

Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.

I find this assertion astounding.

If I understand Posner correctly, he is invoking a data mining analogy to the infamous "guns don't kill people, people kill people" snark. "Computers don’t invade privacy, government invades privacy"?!?

But of course they're government computers, programmed by government employees to reveal information to the government. All without a warrant and all summarily defended as part of "national security."

Sorry, that's not good enough.

We're fighting a War on Terror, supposedly to protect American lives and the American way of life. But we're also fighting a War on Drugs, again (supposedly) to protect American lives and the American way of life. So why not, using Posner's paradigm, employ data mining to gather, for example, utility records of every American household? (Unusually high consumption of electricity, although perfectly legal, is an indicium of the presence of heat lamps used to grow marijuana indoors.) Would Posner believe that such "data mining" (i.e., of utility bills) constitutes no affront to civil liberties, so long as it's done by computer?

Or better yet, why not just use our spy satellites on American soil to "data mine" infra-red heat signatures to root out the high-powered lamps? Again, as long as it's done by satellite and not by human beings, apparently Posner would have no problem with it.

Here's why not: Kyllo v. U.S., 533 U.S. 27 (2001), which struck down warrantless thermal imaging of homes. Regarding the use of technology in prying into the lives of American citizens, the court said:

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.

Data mining computers are certainly "a device that is not in general use" that "explore details that would previously have been unknowable."

I'm not suggesting that Kyllo is controlling when it comes to warrantless wiretapping of international communications in the name of national security. But I am saying that Kyllo is one example that, contrary to Posner, "mere" technology is still subject to basic Fourth Amendment scrutiny (and, by corollary the limitation of Article II powers).

He should know better.

More thoughts from Concurring Opinions, Balkanization.

To review: Judge Richard Posner of the Seventh Circuit Court of Appeals, generally a darling of libertarians, has sparked a wide and deep backlash to his defense of unlimited government data mining (i.e., the ubiquitous gathering of data, without individualized suspicion, through which government computers go on "fishing expeditions") to identify useful information in the War on Terror.

I rebutted Posner here. I presumed in that blogpost that the Big Brother scenario Posner contemplated was strictly a thought experiment that did not really exist.

I was wrong. Twice.

First, as a warm-up, we have the announcement that the U.K. government is developing the ability to track, just for the heck of it, every vehicle movement in that country.

The Automatic Number Plate Recognition (ANPR) cameras will run alongside the CCTV system already in place throughout the country. The aim is to provide round-the-clock coverage of as much of the road network as possible.

Police sources last night claimed that it would not lead to every car on every road being tracked. But it is likely that cameras will be found on most major roads, in cities, at ports and thousands of petrol stations.

The information gathered will be collated by a central database running alongside the Police National Computer in Hendon, north London.

Law-abiding people driving lawfully from lawful places to other lawful places to do lawful things.

But track them anyway. Just for the heck of it.

It seems to me that this is exactly the kind of data gathering that Posner would embrace. The process is strictly automatic, via robot cameras. The information is retained for "only" two years. No law enforcement official's or bureaucrat's eyes will see the information without a valid reason. Or so we're told.

I think it's safe to say that if you feel comfortable with such a program because it might — might — someday help in some way in some aspect of the War on Terror (or the War or Drugs or the War on Crime or the War on Drunk Driving or the War on Smog or the War on Whatever), then you are not a libertarian.

And Posner would, it seems obvious, be comfortable with it. Go figure (or perhaps "go data mine" would be more appropriate).

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And in case you mollified your concerns by focusing on the fact that this was in Britain and not the U.S.:

The National Security Agency, in carrying out President Bush's order to intercept the international phone calls and e-mails of Americans suspected of links to Al Qaeda, has probably been using computers to monitor all other Americans' international communications as well, according to specialists familiar with the workings of the NSA.
...
"They have a capacity to listen to every overseas phone call," said Tom Blanton, director of the National Security Archive at George Washington University, which has obtained documents about the NSA using Freedom of Information Act requests.
...
"The collection of this data by automated means creates new privacy risks," said Marc Rotenberg, executive director of the Electronic Privacy Information Center, a watchdog group that has studied computer-filtered surveillance technology through Freedom of Information Act lawsuits.
...
The closest comparisons, legal specialists said, are cases challenging the use of dogs and infrared detectors to look for drugs without a warrant.

Exactly what I said previously. Kyllo v. U.S., 533 U.S. 27 (2001), which struck down the use of infra-red sensors without a warrant, may not be precisely analogous to omnipresent eavesdropping-based data mining on international communications. But it's close — too close not to consider.

I don't know whether this story was a direct response to the Posner op-ed, but it's exactly what he was hypothesizing and defending — every single international call by every single American being "sifted" (what an obnoxiously inert euphemism). Of course, "sifted" really means intercepted, noted, possibly monitored and perhaps even recorded. Without a warrant, without probable cause, without a "ticking time bomb" that might justify circumventing the warrant requirement. All for no other reason than because it might — might — someday somehow help us somewhere in the War on Terror.

(Via How Appealing. The New York Times has more details.) More thoughts at Moderate Voice.

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In an online chat after his piece ran, Posner said the following:

Why are you more concerned with your privacy than with your safety? Maybe you don't think the nation is at serious risk of further terrorist attacks. I disagree.

Although he later tried to backpedal on that statement, it reveals his underlying rationale for embracing omnipresent data mining. In Posner's worldview: Any marginal increase in national security, no matter how small, is worth any marginal decrease in privacy, no matter how large. In economic terminology, safety should be "lexicographically preferred" to privacy (i.e., the marginal rate of substitution is infinite).

Well, that might be a perfectly rational preference for Posner or anyone else to have, but it is not the only rational preference that a law-abiding citizen could have. And it is wholly inappropriate to assert that, because some segment of the populace thinks as Posner does, they can then impose such a high privacy-for-safety ratio on the rest of us. It is not irrational to prefer some risk in exchange for basic privacy rights. In fact, it is not irrational to demand it.

As I said before: Posner should know better.

Here's a summary of the Supreme Court's jurisprudence (or lack thereof) on warrantless wiretapping.

But remember:

1. We already have a secret court to issue secret warrants to do secret wiretapping.

2. The government can, in "urgent" matters of national security, wiretap first and seek a warrant later -- as much as 72 hours later.

It seems to me that the burden of persuasion is on the White House to explain why even that's "not enough" and that warrantless wiretapping is so desperately necessary.

And I'm not feeling very persuaded so far...

A commentator at the Wall Street Journal ($):

Ultimately, as the courts have noted, the test is whether the legitimate government interest involved -- in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives -- outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.

Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.

Of course, these two paragraphs are mutually exclusive. If the Constitution is "the supreme law," then that includes the Fourth Amendment (which, as an amendment, clearly trumps the original Articles), therefore someone who invokes the supremacy of the Constitution cannot simultaneously argue that there is a "balancing test" between security and privacy.

So which is it -- is the Constitution -- including the Fourth Amendment -- "supreme" or isn't it?

Actually, the choice is a false one. It is the Constitution itself, via the Fourth Amendment, that already provides the "balancing test" for intruding upon privacy -- the test of probable cause. The Administration's apologists, like this one, keep insisting that the warrantless wiretapping is targeting "known terrorists." Notice how he invoked not your privacy interests or mine, but "the privacy interests of individuals who are communicating with al Qaeda terrorists." Well, if they're so known, then why not just get a warrant, especially given FISA's 72-hour retroactive warrant provision? If a particular threat is so clear, then it will be clear to the FISA court and they will issue a warrant.

Or is the problem that the threat is not so clear as the apologists would have us believe? Recent reports would suggest so.

Also, we now know that the warrantless wiretap scandal is not about "those of us who communicate (knowingly or otherwise) with foreign terrorists." It's about anyone domestically who communicates with anyone overseas. There's a difference.

So the "known threat" is not necessarily the person on the U.S. end of the phone or even on the overseas end of the phone. But listen anyway. Such is the apologists' definition of "known threat."

The apologists for warrantless wiretapping are engaging in an intentional bait-and-switch. They are decrying the somehow "anti-Constitutional" protestations of "privacy rights absolutists." I have yet to meet such an "absolutist." No one is seriously demanding "no wiretapping," but only no warrantless wiretapping (and its ultimate expression, data mining).

A jurisprudence of "the Constitution for me but not for thee" is neither honest nor persuasive. No credible, non-circular argument has been put forth to defend the need for plenary authority of the Executive Branch to wiretap without probable cause and therefore a warrant, at least retroactively.

The government doth protest -- and wiretap -- too much.

In Part One I discussed an warrantless wiretapping apologist's op-ed in the Wall Street Journal.

The New York Times had a comparable piece. Most of it is the same talking points and obfuscation as the other apologist arguments (e.g., falsely asserting that only "known terrorists" are being monitored, insisting that even secret and retroactive FISA warrants are too much of a hassle, etc.).

But this part caught my eye:

The purpose here is not to detect crime, or to build criminal prosecutions -- areas where the Fourth Amendment's warrant requirements are applicable -- but to identify and prevent armed attacks on American interests at home and abroad.

This is, of course, utter nonsense.

The words "criminal" and "prosecution" appear nowhere in the Fourth Amendment. The conduct of trials (i.e, "prosecutions") is covered by other Amendments. The Fourth Amendment is about investigation and makes no distinction between "mere" crime or terrorism or any other form of government intrusion upon privacy.

Also, while I don't claim to be a expert on the history of the drafting of the Constitution or the Bill of Rights, it seems to me that the Framers were essentially deemed "terrorists" by the Crown during the Revolution, and they were hunted down, spied upon -- and in some cases hanged -- not for being "mere criminals," but rather for being subversives intent upon overthrowing the "rightful" government and the "colonial way of life."

And it also seems to me that, when the Bill of Rights was being drafted and ratified, it was about the loss of privacy in the name of "defending the government" that the Framers were thinking about, regardless of context.

To claim that the Fourth Amendment applies exclusively to criminal prosecutions and not other excessive intrusions by government is either willfully dishonest or mind-bogglingly ignorant. Argue about the meaning of "excessive" if you want, but don't twist the meaning or context of the Fourth Amendment itself.

I say again: the apologists doth protest too much.

More thoughts at De Novo, California Yankee.

"The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic."
--Justice Hugo Black, New York Times v. United States, 1971

The Justice Department has initiated an investigation into the leak to the New York Times of the administration's constitutionally suspect warrantless wiretapping of domestic communications.

While they're at it, perhaps they'd like to open an investigation of the President's repeated lying to the American people on the subject.

Meanwhile, it's important to remember that the law making it a crime to leak sensitive information to the media applies to the government source, and not to the New York Times, which is protected by the First Amendment generally and the so-called "Pentagon Papers" case specifically.

New York Times v. U.S., 403 U.S. 713 (1971), made it clear that there is a strong presumption that freedom of the press trumps vague, open-ended warnings about "national security" and that, if the government wants to censor, it must show, at the absolute least, that there would be "direct, immediate, and irreparable damage" to our vital interests. Of course, to this "security at all costs" White House and its apologists, one can expect a fast and loose definition of "direct," "immediate" and "irreparable."

On the other hand, the Pentagon Papers case was only about prior restraint (i.e., censorship). It did not block criminal prosecutions after the information was published. Nor did it say anything about punishing leaks by government employees.

In this I wonder whether New York Times v. U.S. goes far enough. It seems to me that there should be at least some modest form of "whistleblower" protection for government employees (a/k/a "public servants") who leak information about illegal or constitutionally suspect activities.

We are not talking here about disloyal subversives who disclose classified information to aid the enemy (e.g., outing an undercover agent) or for mere financial reward (e.g., selling secrets to foreign powers). This leaker was, as far as we know, a patriotic American trying to expose, for our own sakes, a dubious government program.

Such a person is not a traitor — and probably should not be deemed a criminal either.

More thoughts at Concurring Opinions, Moderate Voice, Running Scared, De Novo.

In my last post I asserted that it wasn't just about wiretapping.

In fact, it's not really about "wiretapping" at all. But the Bush Administration wants you to think it's about wiretapping, because that makes it easier for them to obfuscate

For example, the White House has attempted a "mini-fisking" of various statements by Democratic politicians regarding the warrantless wiretap scandal.

The piece is merely the same shell game that the Administration and its apologists have been playing since the scandal was revealed:

We have clear authority under FISA.
No? Okay, clear authority under AUMF.
No? Okay, clear authority under Article II.
No? But it's al Qaeda! We know it's al Qaeda!
But we don't "know" it enough to get a warrant.
So we can't go to the FISA Court.
Why not? Because the FISA Court is obstructionist.
Oh, they're not? Okay, because they're too slow.
Oh, we could get a retroactive warrant?
Um, um, um...do you want another 9/11?!?

Blather. Rinse. Repeat.

Nothing new in any of that gobbledygook. No, what actually got me uppity was the ludicrous invocation, in the very first sentence of the piece, of a quote from Press Secretary Blunderkind Scott McClellan:

Critics have stepped up their attacks on the President for authorizing the National Security Agency to listen to international communications of known al Qaeda members or affiliated terrorists during a time of war.

This is, of course, utter nonsense.

I have yet to encounter such a "critic." If I did, I would most likely punch him in the face. No reasonable American opposes eavesdropping on "al Qaeda or affiliated terrorists during a time of war." We have no problem with that. It's the eavesdropping on the American citizen on the other of the phone that's upsetting us.

In other words, it's the "warrantless," stupid.

Let the record reflect that I have been touting the OpenCRS Project for quite some time. The goal of the project is to make available to the public the special reports that the Congressional Research Service prepares for Members of Congress.

Well, one particular CRS report has been getting quite a bit of publicity recently, and with good cause:

The Congressional Research Service's report rebuts the central assertions made recently by Bush and Attorney General Alberto R. Gonzales about the president's authority to order secret intercepts of telephone and e-mail exchanges between people inside the United States and their contacts abroad.
...
The 44-page report said that Bush probably cannot claim the broad presidential powers he has relied upon as authority to order the secret monitoring of calls made by U.S. citizens since the fall of 2001.

The full title of the report is "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information," dated 5 January 2006. Don't be intimidated by the 44-page length of the report -- it's mostly footnotes.

Previous CRS Recommendations:
Foreign Holdings of Public Debt
China's Internet Censorship
Summary of Rumsfeld v. FAIR

Some quick updates:

--The ACLU is suing to stop the practice. Expect blind "everything the ACLU does is evil" partisan Bush apologists to play the "you don't want another 9/11, do you?" card -- the only card they have left to play. The lawsuit is not just by the ACLU, however, but a coalition of journalists, scholars and other advocacy groups.

--The "traitorous" whistleblower at NSA who was the source for the original New York Times expose turns out to be a lifelong Republican who voted for George W. Bush. On the other hand, he's also a lifelong NSA agent who notes that NSA employees, even longtime employees, used to be reminded in sit-down briefings, twice a year, that, when it comes to spying on Americans, "we don't do that." But you don't want another 9/11, do you?

--Most of the leads that the NSA are turning over to the FBI are worthless. But you don't want another 9/11, do you?

--Al SomebodyOrOther is opposed to the program. Whatever. On the other hand, he invented the Internet, so I guess his views on monitoring emails might matter, sorta kinda. The interesting thing here is that the White House has responded to Gore by pointing out that the Clinton Administration authorized warrantless physical searches. Except that wiretaps aren't physical searches -- for better or worse it's an entirely different jurisprudence. But you don't want another 9/11, do you?

I'm not a tin foil hat type, but if I were, I'd sure be uppity about the timing of the audio message purportedly from Osama Bin Laden assuring America and the world that more attacks are in the works but that they could be averted via some sort of "truce."

Just when the outrage (and the criticism by legal analysts) over the warrantless wiretapping scandal is gaining momentum, and just when Vice President Cheney is issuing statements insisting that the program is "vital," voila: here's a recording — open-ended, nebulous and undated — of the Terrorist-in-Chief saying exactly, exactly, what an apologist for the NSA program would want him to say, exactly when he would want him to say it.

How convenient.

So too with the "truce" gobbledygook — "See, they're only offering a truce because we're winning. The program works. We need to continue it. You don't want another 9/11, do you?"

How convenient.

But like I said, I'm not a tin foil hat type. The Occam's Razor answer is not that this is a vast White House conspiracy, but simply a narrow al Qaeda conspiracy. The timing isn't just good for the Administration, it's also good for the terrorists. Remember, the goal of the Islamofascists is not really to destroy us — they can't and they know it. The simply want to destroy our way of life.

And, considering the nature of the NSA scandal and the other collateral damage to our civil liberties resulting from the PATRIOT Act and the other prongs of the War on Terror, some might argue that the terrorists are succeeding.

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Meanwhile, Attorney General Alberto Gonzales has issued a 42-page, single-space document attempting to defend the legality of the NSA warrantless wiretap program. Of course, when the story first broke, we were told that the President's authority in the area was "inherent." So "inherent" that a major independently prepared report for Congress has said otherwise, and so "inherent" that a 42-page, single-space document is needed to clarify the "inherent" authority. Go figure. (PDF available here.)

General Michael Hayden, the number two intelligence official in the nation and a former director of the National Security Agency, the bureaucracy responsible for the warrantless wiretapping scandal, has inadvertently neutralized a White House spin tactic by insisting that warrantless wiretapping isn't just about "in time of war" --

"Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the al-Qaida operatives in the United States," Hayden said...

Now wait just a minute. The entire purported legal justification for warrantless wiretapping was that we are in a post-9/11 War on Terror and that the ability to spy on Americans gather foreign intelligence was somehow "inherent" to the President's wartime authority as benevolent dictator Commander-in-Chief. So now the Administration is switching to a purely consequentialist position? The Constitution and the law and the Congress and the courts be damned, all that matters is that "it works"? In peacetime as well as war?

The more this Administration tries to defend the program, the more indefensible it becomes. Another Haydenism:

Hayden ... told the National Press Club in Washington that the program is "targeted and focused" on al Qaeda and does not cast a "drift net" over Americans' telephone and e-mail communications.

Now wait just another minute. If the program (which now has a name -- Terrorist Surveillance Program) is so "targeted and focused" and if it's true to its new namesake (i.e., only monitoring communications involving those known or reasonably suspected to be terrorists), then why is it so hard to get a warrant, even retroactively?

The wiretap two-step. The song may change, but the dance stays the same.

No fan of Senate Minority leader Harry Reid am I, but the White House has become just plain silly (or just plain desperate) in this attempted fisking of Reid's claim that the warrantless wiretap scandal is "domestic spying" --

--Domestic Calls are calls inside the United States. International Calls are calls either to or from the United States.

--Domestic Flights are flights from one American city to another. International Flights are flights to or from the United States.

--Domestic Mail consists of letters and packages sent within the United States. International Mail consists of letters and packages sent to or from the United States.

--Domestic Commerce involves business within the United States. International Commerce involves business between the United States and other countries.

Okay, but when one American spouse batters another American spouse while on vacation overseas, that's still "domestic violence." What's your point?

Eavesdropping on an American in America is domestic eavesdropping, regardless of where the other end of the conversation is located. Just how dumb does the White House think the American people are?

And keep in mind that, for some of us at least, it's not the wiretapping per se or the even the "domestic" part that really angers us. It's the warrantless, stupid. If you know that the "international" end of the call is al Qaeda, or even if you only have probable cause to think the "international" end of the call might be al Qaeda, then bravo, well done, you are a true defender of America ... now get a warrant, even if it's just a retroactive warrant (like the President originally said we were doing).

More thoughts at Whatever It Is, I’m Against It.

On Monday, Attorney General Alberto Gonzales appears before the Senate Judiciary Committee to explain and defend the National Security Agency's "terror surveillance program," a/k/a the warrantless wiretap scandal.

Here is a rundown of recent events regarding the program:

--One topic likely to be a focus during Gonzales' testimony will be his previous testimony in his confirmation hearings. Senator Russ Feingold has reminded us that, back in January 2005, then White House Counsel Gonzales assured the Senate that eavesdropping on communications where one party was an American in America was a "hypothetical situation." Yet he knew at that time that the NSA program was already in place. Some are going so far as to accuse Gonzales of bona fide perjury. I've been reluctant to toss around the p-word ever since the pervert president's "the meaning of is" shenanigans. Still, Gonzales has quite a hook to try to wiggle off. Stay tuned.

--Still on the subject of those pending hearings, the Justice Department has declined to provide the Senate Judiciary Committee internal memos on how they determined that the program is somehow constitutional. The Administration insists that the memos "add little to the public debate." Not that they are classified, not that they are privileged, but that they are "redundant." Of course, the Senate might disagree. Perhaps that's the problem. Balkinization has much more.

--One of the reasons the Justice Department claims those internal memos are redundant is because the legal arguments they contain are already in the so-called "white paper," the 42-page presentation of the Administration's rationale for the constitutionality and legality of the warrantless wiretap program. Well, 14 legal scholars and former government officials have penned a 12-page response to the white paper. Their conclusion:

To find the NSA domestic surveillance program statutorily authorized on the ground advocated by the DOJ would require a radical rewriting of clear and specific legislation to the contrary. And to find warrantless wiretapping constitutionally permissible in the face of that contrary legislation would require even more radical revisions of established separation-of-powers doctrine.

Ouch. Bottom line: The White House may well be right about the legality of the program (I think not). But they are certainly not right when they say it's "clear." It's about as clear as mud.

--On the other hand, the Justice Department has at least one ally in the Senate, and he can write letters too: Intelligence Committee Chairman Pat Roberts has issued a 19-page letter (PDF) declaring his conclusion that the warrantless wiretap program is indeed constitutional and legal. Of course, it is not entirely clear why Roberts' opinion matters. The Intelligence Committee is about the operation of our intelligence apparatus, not the legality of it. Those questions belong in the Judiciary Committee, not the Intelligence Committee. And the chairman of that committee, Arlen Specter, strongly disagrees with Roberts and Gonzales. Go figure. Balkinization has more.

--In any event, it appears that the courts may resolve the issue sooner rather than later: A man who pleaded guilty of conspiring to blow up the Brooklyn Bridge is suing to learn whether any evidence used against him was obtained via the warrantless wiretap program. If so, and if the program is deemed a violation of the constitution or statute, then his guilty plea could be in jeopardy. Stay tuned.

--Finally, if this terrorist conspirator was indeed caught via the warrantless wiretap program, then he would certainly be the exception. Contrary to the histrionics by President Bush and other apologists that the program is "vital" or "essential" or "critical," in fact all but a puny handful of the intercepted conversations yield any useful results at all. Go figure.

When the warrantless wiretap scandal was first developing, the White House and its apologists were quick to dismiss criticism from Democratic leaders in Congress, especially those in the "Gang of Eight" who were briefed on the program prior to its public disclosure by the New York Times. Hypocritical political opportunism, they called it.

Okay, fine — but then what about this?

President Bush said the U.S.-led global war on terror has "weakened and fractured" al-Qaida and allied groups, outlining as proof new details about the multinational cooperation that foiled purported terrorist plans to fly a commercial airplane into the tallest skyscraper on the West Coast.
...
Bush has referred to the 2002 plot before. ... The White House initially would not give details of the plots but later released a fact sheet with a brief, and vague, description of each. The president filled in details on Thursday.

So President Bush waited almost four years — when it is becoming clear that no one except the most extreme Bush supporters fully accepts the Administration's bizarre legal reasoning or the notion that warrantless wiretapping of American citizens in America is no big deal — to "fill in the details" about a subsequent plot.

And remember of course that the White House is not saying that the warrantless wiretap program was responsible for preventing this "West Coast 9/11." In fact, what details we have would suggest otherwise. (The alternative, given that "multinational cooperation" was involved, could be that not only is the United States government engaging in warrantless wiretapping of Americans in America, but is also sharing that information with foreign governments. Lovely.)

In any case, the timing of this "see, we told you so" straw man incident is surely as bad a case of "hypocritical political opportunism" as anything that has come from any Democrat.

No reasonable person doubts that al Qaeda remained active after 9/11 and remains so to this day. No reasonable person wants another 9/11 or to make it easier for al Qaeda to create one. But lots of reasonable people, at this point practically all reasonable people, think the warrantless wiretap program is problematic and legally suspect. So let's fix it rather than keep trying to rationalize it.

---

Meanwhile:

--The Administration has bowed to Congressional demands and will brief the entire membership of the House Intelligence Committee, rather than just the so-called "Gang of Eight," on the details of the warrantless wiretap program. The reason? Because too many Republicans were demanding it. Are they "hypocritical political opportunists" too? Even ultra-conservative Republican Senator Sam Brownback?

--Senator Arlen Specter has indicated that he is crafting legislation to place the warrantless wiretap program under the direct supervision of the FISA Court. Since they're the ones who would issue the warrants if there were to be warrants, then it seems reasonable to let them monitor the situation in which warrants are not being sought.

--Speaking of the FISA Court, it now appears that the "poisonous tree" problem that many of us foresaw may be coming to pass. At least twice in the past four years FISA Court judges have been notified that warrants they issued may have been based on information obtained from the warrantless wiretap program. If the latter program is deemed illegal, then the warrants that were later issued are invalid and any criminal prosecutions resulting from them may be tainted.

--I also want to fisk one small point is an atrocious Wall Street Journal editorial this morning calling for the wholesale repeal of FISA (the Journal has been relentless in its total and blind support of the warrantless wiretap program):

Senators of both parties are still hoping to stage a Congressional raid on Presidential war powers. And they hope to do it not by accepting more responsibility themselves but by handing more power to unelected judges to do the job for them. The preferred vehicle here is an expansion of the 1978 Foreign Intelligence Surveillance Act, or FISA, the Carter-era law that imposed judicial consent for domestic wiretaps during the Cold War.

There's just one small problem with the Journal's argument: FISA has been amended five times since 9/11. It is not a "Carter-era" law, but a Bush-era law. Go figure. And FISA can be amended again if need be, particularly to relax (yet again) the 72-hour retroactive warrant provision that Attorney General Alberto Gonzales says is "too restrictive." So let's make it less restrictive — a post facto warrant is better than no warrant at all, and unequivocally better than the demented idea of scrapping FISA altogether. The Journal is, quite frankly, off its meds. More thoughts on the editorial from Rolling Doughnut.

The Administration?

Attorney General Alberto R. Gonzales told a key House Democrat yesterday that the administration is not conducting any warrantless domestic surveillance programs beyond the one that President Bush has acknowledged, the Democrat said in an interview.

Rep. Jane Harman (D-Calif.) said Gonzales was responding to a fax she sent him Wednesday after she read a news account of his Feb. 28 letter to two senators. In the letter, Gonzales appeared to suggest there might be domestic wiretap operations that extend beyond the outlines Bush acknowledged in December.

Or the Administration?

Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.

They lied before, why should we think they won't lie now?

On January 24, as I documented in this post, White House Press Secretary Scott McClellan put out one of his infamous "Fact Sheets" in which he and the Deputy Director of National Intelligence, General Michael Hayden, with an extremely obnoxious, condescending and patronizing tone, chided people who -- gasp! -- were indignant about warrantless wiretapping of American citizens on American soil. The NSA program was, McClellan and Hayden lectured us, not a "domestic" program at all but strictly an "international" one. Anyone who could not see the rudimentary difference between "domestic" and "international" was, McClellan and Hayden insisted, hopelessly illiterate.

Well, apparently we illiterates have a new spokesman in the form of Attorney General and chief wiretapping apologist Alberto Gonzales:

Attorney General Alberto R. Gonzales left open the possibility yesterday that President Bush could order warrantless wiretaps on telephone calls occurring solely within the United States -- a move that would dramatically expand the reach of a controversial National Security Agency surveillance program.

In response to a question from Rep. Adam Schiff (D-Calif.) during an appearance before the House Judiciary Committee, Gonzales suggested that the administration could decide it was legal to listen in on a domestic call without supervision if it were related to al-Qaeda.

"I'm not going to rule it out," Gonzales said.

They have all become so drunk with power that they don't even try to keep their stories straight anymore. Whatever these autocrats are trying to accomplish, it is not "defending the American way of life." They are destroying it in a way the terrorists could never dream.

If I haven't said it before, then I'll say it now: Bush has unequivocally leapfrogged past Richard Nixon and may even have surpassed Andrew Jackson on the list of worst and most dangerous presidents of all time. (Yes, Jackson was worse than Nixon.)

The expiration of Bush's second term cannot come quickly enough.

What exactly do the NSA warrantless wiretapping program and government data mining of telecommunications entail?

AT&T provided National Security Agency eavesdroppers with full access to its customers' phone calls, and shunted its customers' internet traffic to data-mining equipment installed in a secret room in its San Francisco switching center, according to a former AT&T worker cooperating in the Electronic Frontier Foundation's lawsuit against the company.
...
[Mark] Klein's job eventually included connecting internet circuits to a splitting cabinet that led to the secret room. During the course of that work, he learned from a co-worker that similar cabinets were being installed in other cities, including Seattle, San Jose, Los Angeles and San Diego.
...
The secret room also included data-mining equipment called a Narus STA 6400, "known to be used particularly by government intelligence agencies because of its ability to sift through large amounts of data looking for preprogrammed targets," according to Klein's statement.

There is, of course, no reason to believe that this clandestine rerouting of telecommunication traffic and construction of "secret rooms" is limited to AT&T.

And there is also, of course, no reason to believe that the government would go to such extraordinary lengths (and costs) just to intercept a handful of international phone calls — even if they're to al Qaeda.

This is a systematic, comprehensive and unapologetic plan by the Bush Administration to enable the monitoring of all telecommunications. Voice and data, international and domestic, related or unrelated to the War on Terror, with or without probable cause.

Keep in mind that warrantless wiretapping apologist-in-chief Alberto Gonzales said as much just a few days ago.

The transmogrification of the War on Terror into the War on Privacy has reached a whole new plateau.

One can only wonder what next big idea — or Big Brother idea — Bush, Hayden, Gonzales and the rest of the warrantless wiretapping cabal will come up with.

Especially given that they probably won't tell us about it.

More thoughts at Mixed Signals, Hit & Run, Catallarchy.

I'm sorry that I'm late with commentary on the disclosure that the NSA is assembling a massive database of every phone call — everywhere, by everyone — made in the United States. I was both too busy and too stunned to gather my thoughts.

The legal issues here are even more complex than those underlying the warrantless wiretapping scandal, and are beyond my expertise — look here or here for summaries.

But here are my hasty stitches:

--Yet again the President and his senior staff lied. Flat out lied. Just as he swore before the warrantless wiretapping scandal broke that there was, um, no warrantless wiretapping, so too did he lie about monitoring being limited to terrorists (or those thought to be terrorists, or those with links to terrorists, or those thought to have links to those thought to be terrorists, etc.). Now he assures us that, "We're not mining or trolling through the personal lives of millions of innocent Americans." And we should believe him — why?

--It would be unfortunate if this travesty drowned out the other important NSA story of the day: that the Justice Department has been forced to call off its investigation of the warrantless wiretapping scandal because the NSA simply won't give the investigators the necessary security clearance. That's right: the NSA thinks that the Justice Department cannot be trusted. Perhaps the FBI has links to al Qaeda. Of course, the fact that the NSA has no problem churning out clearances to the private sector employees actually building all these programs and secret rooms and databases only shows how preposterous this latest obfuscation is.

--The database program, which as far as I'm concerned should be called "Project Posner," will likely not work. The people who data mine for a living have said as much. The database is simply too big and the goal is simply too vague. To say that such a program is somehow "vital" to the war on terror is preposterous.

--Notice how the concept of cost-benefit analysis, especially at the margin, has complete succumbed to the slippery slope of expansive government. There's no longer any standard of reasonableness or any hint of a balancing test anymore. To this administration, the prioritization of the war on terror over privacy rights is as absolute as its view of Article II power. Here we see, yet again, the unconditional elevation of a government interest (i..e., fighting terrorists) over a civil liberty (i.e., privacy). No price is too great to "get bin Laden" (who, incidentally, remains obnoxiously un-got after almost five years).

--The nomination of General Michael V. Hayden for Director of Central Intelligence is now even more out of the question than it was before. The CIA is about civilian intelligence; Hayden is about military intelligence. The CIA is about foreign intelligence; Hayden is about domestic intelligence. The CIA is about finesse and precision; Hayden is about shotgun blasts. The CIA is about protecting Americans; Hayden is about spying on Americans. He is simply not an option.

The apologists for the Bush Administration have been dutifully scrambling to downplay the recently disclosed NSA phone record scandal. This OpinionJournal piece is typical:

Datamining and wiretapping are not the same thing. So much for the "Bush lied" angle to this story.
...
And once it's clear that telephone records are all we're talking about here, the rest of this alleged scandal melts away.
...
[S]ince the database doesn't involve any wiretapping, FISA doesn't apply...
...
[T]he law appears to be on the Bush Administration's side here.

Michelle Malkin has a linkfest of similar spin.

One preliminary point: The President did lie, twice, about warrantless wiretapping. That is undisputed by the White House and simply not open to serious discussion anymore.

But I want to make a different point. Let's assume — very prematurely at best — that the NSA phone record scandal program is indeed lawful under some strained interpretation of the relevant statutes. Or let's even assume that the White House's "dictator in time of war" theory of executive power is valid.

So what?

How does that change the fact that people are entitled to be upset if not outraged over this revelation? Not every legal act of government is automatically proper, moral or just. Just look at the backlash over the Kelo eminent domain decision.

---

Here are two hypothetical examples of how "legal" does not mean "proper."

First, despite the unequivocally unambiguous text of the Thirteenth Amendment to the contrary, the overwhelming (yet wrong) consensus is that the draft is constitutional. See Butler v. Perry, 240 U.S. 328 (1916). So what? Does that make a draft proper, especially for an optional war such as Iraq? Would people, particularly those directly affected, be "wrong" to oppose it, indeed to be aghast that the idea would even be proposed? Would they be accused of "aiding the enemy" or even of being "traitors"?

Second, suppose that the federal government decides to solve the Social Security crisis by limiting the period that a retiree can receive benefits (e.g., no one over 80 receives benefits). That would be perfectly legal: despite the interminable lies of the Left, there is no recognized right to Social Security benefits and there is no "account with your name on it" waiting for you when you retire. You get whatever the government decides you get, and no matter how much or how little, it's perfectly legal under current law. See Flemming v. Nestor, 363 U.S. 603 (1960), or this post. When it comes to slashing Social Security benefits, there is simply no legal impediment whatsoever, only a political one — the goodwill of the government fear of the public fury that would result. Again, "legal" is not synonymous with "proper."

---

So too with the phone record scandal: "Legal" is not synonymous with "proper." Let the politicians, bureaucrats, pundits, scholars and, in the end, judges sort out the law.

But regardless of how the legal wrangling plays itself out, don't tell us we're not entitled to be angry. We are the ones you're supposed to be protecting, remember? It's about serving us and doing what we want and treating us the way we deserve to be treated.

We are not al Qaeda. We are loyal, proud, law-abiding Americans. We have done nothing wrong and given you no reason to think otherwise. We are entitled to be left alone.

Any law, or spin, to contrary be damned.

---

A quick denouement: Speaking of whether "people are angry," be sure to review the debunking of the atrocious and unprofessional "poll" conducted by the Washington Post that supposedly indicates that two-thirds of Americans approve of the NSA phone record program.

This survey was conducted overnight and totaled only 500 participants. Even WaPo openly acknowledges that the poll is inherently flawed.

A newspaper playing catch-up finds 316 people at 3:00 A.M. who could not possibly be fully informed about the just-broken story, and now suddenly the majority of the nation backs the NSA?

Remind me again who called whom "guys sitting in living rooms in pajamas"?

One of the most basic principles of Anglo-American jurisprudence is that courts can only act on cases actually brought before them. Unlike an activist politician who can introduce legislation willy-nilly for no other reason than because he thinks it's a neat-o idea (or an activist president who can invade another country because he thinks it's a neat-o idea), a judge is always a mere spectator until litigants actually make their way into the courtroom. So, for example, no judge can decide, "just because," that a same-sex marriage ban is unconstitutional or that a city cannot ban spray paint and markers. He has to wait for a case to reach him. It is by definition impossible for a judge to be truly "activist."

With that in mind, why should anyone give any kind of a damn about this:

Utah Sen. Orrin G. Hatch said yesterday that at least two of the chief judges on the secretive court that approves warrants for intelligence surveillance had been informed since 2001 of the National Security Agency's domestic spying program.

"None raised any objections, as far as I know," said Mr. Hatch, a Republican member of a Select Committee on Intelligence panel appointed to oversee the NSA's work.
...
When asked whether the judges somehow approved the operations, Mr. Hatch said, "That is not their position, but they were informed."

There are eleven judges on the Foreign Surveillance Intelligence Court. All are sworn to secrecy about their caseload (and even ordinary judges rarely talk publicly about their cases or about politics generally). So the fact that two out of eleven were "briefed" about the NSA's program of eavesdropping on American citizens on American soil, and the fact that they said and did nothing about it, means — what exactly? The two judges had no case before them with which to pass, well, "judgement" on the program. And they could not have discussed it publicly even if they wanted to.

So I ask again: Why should anyone give any kind of a damn about this? How does this in any way affect the legality, or the egregiousness, of the program?

Similar thoughts at Media Matters.

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Speaking about "briefing," the White House is so certain that it did the right thing by "briefing" only select members of the Congressional leadership that it has now completely flip-flopped on the issue:

The administration previously had insisted on briefing only a small fraction of Congress's 535 members, saying larger gatherings were likely to result in leaks of secret information. But Democrats and some Republicans had objected, and Gen. Michael V. Hayden — President Bush's nominee to be CIA director — faced the awkward prospect of a confirmation hearing tomorrow in which he could tell some Senate intelligence committee members, but not others, some details of the administration's surveillance programs. Yesterday the White House agreed to brief all 21 members of the House intelligence committee and all 16 of the Senate panel's members.

So now we see yet again that principles never, ever trump politics. Selective briefing of congressional leaders (an extra-constitutional practice, incidentally) was "essential," but now not as essential as getting the president's NSA scandalmeister confirmed as Director of Central Intelligence — where he may well craft even worse domestic spying nightmares.

So much for what is and is not "crucial to the War on Terror."

[T]he World War I cases ... put the gloss of "clear and present danger" on the First Amendment. Whether the war power -- the greatest leveler of them all -- is adequate to sustain that doctrine is debatable. The dissents in [those cases] show how easily "clear and present danger" is manipulated to crush what Brandeis called "[t]he fundamental right of free men to strive for better conditions through new legislation and new institutions' by argument and discourse even in time of war.
--Brandenburg v. Ohio, 395 U.S. 444 (1969) (Douglas, J. concurring)

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.
--New York Times v. United States ("The Pentagon Papers Case"), 403 U.S. 713 (1971) (Black, J., concurring)

"I understand very much the role that the press plays in our society, the protection under the First Amendment we want to promote and respect . . . but it can't be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity.
--Attorney General Alberto Gonzales, 21 May 2006

Oh yes it most certainly can be the case. Very easily. Pretty much every Supreme Court case ever to address the issue has made that clear. Unless the actions at issue would put American soldiers (or civilians, presumptively) in immediate and proximate danger of harm, then the First Amendment trumps all else -- including the Administration's Article II "dictator in time of war" gobbledygook.

Telling the Kaiser precisely when and where the doughboys are going to attack may not be protected speech. But telling law-abiding American citizens that their government is spying on them without probable cause is protected, at least from prior restraint (i.e., censorship before the fact) and, one must conclude from Brandenburg, from criminal prosecution after the fact.

Trying to skirt around FISA is one thing. Trying to skirt around the Fourth Amendment is not much harder these days. But if Gonzales or Bush or their apologists think that they can steamroll over the First Amendment with their outrageous and obnoxious legal theories, then they are gravely mistaken.

More thoughts from Crime & Federalism, Glenn Greenwald, ACS Blog.

I briefly noted previously the bizarre turn of events in the warrantless wiretapping scandal in which the Justice Department was unable to obtain the necessary security clearances to review the National Security Agency's dubious activities. I guess the NSA was worried that the FBI might have links to al Qaeda.

As, apparently, does the FCC:

The U.S. Federal Communications Commission will not pursue complaints about a spy agency's access to millions of telephone records because it cannot obtain classified material, the FCC's chairman said in a letter released on Tuesday.
...
"We can't have a situation where the FCC, charged with enforcing the law, won't even begin an investigation of apparent violations of the law because it predicts the administration will roadblock any investigations citing national security," [Representative Edward] Markey said in response to [FCC Chairman Kevin] Martin.

Keep in the mind that Martin didn't even try to open an investigation. He simply assumed that the NSA would not cooperate and shrugged off his responsibilities.

Oh, one more thing:

Martin, a Republican designated chairman last year, worked at the White House and for President George W. Bush's 2000 presidential campaign before joining the FCC in 2001 as a commissioner.

But I'm sure that had nothing to do with Martin's decision to roll over and play dead, right? The thought of Martin recusing himself from the decision-making process need never have come up, right? Because political appointees never, ever let politics cloud their judgment, right?

In any case, look on the bright side: maybe someone at the NSA will utter a naughty word over its classified eavesdropping equipment and the FCC will swarm down on them then.

OpinionJournal has a major piece by Professor John C. Eastman of Chapman University School of Law defending both the legality and the propriety of prosecuting the journalists, and I suppose their editors and publishers, who disclosed the information leaked to them regarding the various classified surveillance programs that have aroused such furor among many Americans (myself included).

The piece focuses — as I did in this post — on New York Times v. United States (a/k/a "The Pentagon Papers Case"), 403 U.S. 713 (1971), and the question of whether the Supreme Court's invalidation of weakly-argued prior restraint (i.e., censorship) should extend to weakly, or perhaps not so weakly, argued subsequent prosecution.

Some snippets:

No one contests that in each instance, classified information was illegally provided to these media outlets and then subsequently published by them.
...
Implicit ... is the [New York Times