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.

---

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'] view that reporters generally, and perhaps the editors of the New York Times in particular, are free to ignore the laws regarding publication of classified information when, in their view, the benefit to the public from gaining access to the information would outweigh any harm that might flow from its disclosure.
...
The second fundamental flaw in relying on the Pentagon Papers case is that the Court's per curiam opinion described a prior restraint on speech as "bearing a heavy presumption against its constitutional validity," but it was not an irrebuttable presumption for a majority of the Court.
...
Justice Blackmun noted in his dissenting opinion that "even the newspapers concede that there are situations where restraint is in order and is constitutional."
...
The constitutionality of protecting intelligence gathering and other operational military secrets in time of war is therefore beyond dispute...
...
Every citizen, including — particularly including — those employed with major media organs have a responsibility to prevent ongoing operational secrets from falling into the hands of our enemies by complying with the law regarding classified information.

Notice the quite slippery slope winding its way through the piece: There are some — some — situations where the government can, and indeed must, keep secrets. Point conceded. But therefore, according to Eastman, every time the government keeps a secret, it must be for a good reason. "Sometimes" mysteriously morphs into "always."

Stated differently, the fact that the Supreme Court reserved in the Pentagon Papers Case a hypothetical "classified information" exception to the prohibition against prior restraint, somehow implies, "beyond dispute," that there can be no exceptions whatsoever to the propriety of subsequent prosecution. "Sometimes" mysteriously morphs into "never."

Don't worry if you don't understand Eastman's reasoning, because neither do I.

Here's the warm knife that slices through Eastman's buttery argument: His entire analysis presumes that whatever it is the government is hiding is in fact legal. We are not talking here about leaking to the Kaiser when and where the Doughboys will attack. We are talking about highly questionable — especially to independent non-partisan observers — programs that on their face violate FISA, case law and perhaps the Fourth Amendment itself.

Where there is a serious question about whether a classified operation violates statutory law, or especially the Constitution, then all bets about the impropriety of disclosing classified information are off. And it is, to use Eastman's term, "beyond dispute" that there are serious questions about the NSA's warrant wiretapping and phone record seizure programs.

Read this one passage again:

Implicit ... is the [New York Times'] view that reporters generally, and perhaps the editors of the New York Times in particular, are free to ignore the laws regarding publication of classified information when, in their view, the benefit to the public from gaining access to the information would outweigh any harm that might flow from its disclosure.

Change that to: "when, in their view, the benefit to the public from learning that the executive branch may be — and in fact quite likely is — breaking the law and possibly violating the Constitution," and suddenly Eastman's "hubris of the press" argument evaporates.

There is never, ever, a "patriotic duty" to remain silent while members of the government break the law. There is never, ever, a situation where the prior restraint of revealing what are reasonably thought to be illegalities can be justified. And there is never, ever, just cause to prosecute private parties who expose such reasonably suspected illegalities.

---

Having said all this, I do wholeheartedly agree with Professor Eastman's ancillary thesis that freedom of the press in no way elevates institutional media to a special position of legal privilege. Freedom of the press applies to all private parties equally. See, e.g., this chain.

Reading through Time Magazine's excerpt of the forthcoming book, "The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11," which describes an ominous new technology for conducting gas attacks and a plot — not thwarted but aborted — to gas the New York City subways, confirms what some of us already knew:

--New York's asinine and unconstitutional random suspicionless subway search program did not, and cannot, prevent an attack in the subways. Any terrorist carrying the new "mubtakkar" can simply walk a few blocks (if not a few hundred feet) to the next subway entrance and enter the system there. Since the devices can be remote activated, the terrorist doesn't even need to be a suicide bomber anymore. So the question arises, as it has from the beginning: How can a hopelessly futile search program, one with literally zero probability of success, not be considered "unreasonable" for Fourth Amendment purposes?

--The information the CIA obtained about al Qaeda and the plot did not come from spying on American citizens on American soil without a warrant. As the piece demonstrates, our government knows precisely who the major players are in al Qaeda and can easily obtain warrants, especially retroactive FISA warrants, to monitor their communications. Why run afoul of FISA, and perhaps the Bill of Rights, for no bona fide reason?

--Similarly, mass data mining of the phone records of law-abiding American citizens contributed absolutely nothing to discovering or preventing the subway attack plan. Neither is there any reasonable basis to believe that it would in the future.

When we keep our eye on the ball in the War on Terror, we prevail. When we run around in a panic like a headless chicken, setting up dubious programs that merely create warm fuzzy feelings of faux security — not to mention civil liberty crises — we simply burn rubber, leaving skid marks on the Constitution in the process.

There's plenty not to like about Senator Arlen Specter's blathering, lapdog-style capitulation to the Administration re-asssertion of Congressional authority regarding the NSA warrantless wiretapping program: It's essentially voluntary, it requires Congress to acknowledge the "President's inherent constitutional authority," it completely ignores the reasoning of the recent Hamdan decision (which clearly implies that the NSA program is not authorized by the AUMF), it forces the consolidation of the various lawsuits challenging the legality of the program (making them easier to quash through the Administration's abuse of the "state secrets privilege"), it exempts any review of eavesdropping on calls that "only" pass through the U.S. from one foreign point to another, and still leaves unanswered the prime question of why — if the program is limited to those with some connection to al Qaeda — it would be so difficult to get a FISA warrant in the first place.

But here's the most nonsensical — and maddening — aspect of the Specter proposal:

An administration official who spoke on condition of anonymity said the bill's language gives the president the option of submitting the program to the intelligence court, rather than making the review a requirement. The official said that Bush will submit to the court review as long the bill is not changed, adding that the legislation preserves the right of future presidents to skip the court review.

Assume (falsely) that this first and only review had any teeth and actually validated the program — so what? Surely Senator Specter, one of the Senate's most seasoned judiciary experts, knows the difference between a law (or agency or program) being valid "on its face" versus "as applied."

It's one of the most basic principles in constitutional law: a law can be generally valid but applied in an impermissible manner. For example, race-based admission preferences as a concept are "facially valid" under current Fourteenth Amendment jurisprudence, but if the preference takes the form of a rigid quota or point system, then the program is unconstitutional "as applied." Grutter v. Bollinger, 539 U.S. 306 (2003). See also the recent Texas redistricting case (reverse discrimination through race-based gerrymandering is facially valid, but was invalid as applied to one, and only one, of the Hispanic districts in Texas).

But the only way to judicially review government conduct "as applied" is to allow people to actually challenge it "when applied." Which, yes, means submitting the conduct to court oversight again and again and again. This the Specter proposal makes impossible. Forever and ever...

It would be comparable to Congress declaring that the Patent and Trademark Office is a valid government program, but then denying anyone the chance ever to challenge the rejection of a patent application, for no other reason than because the PTO had been "approved" once in the past.

That can't possibly be right. So too for the Specter proposal.

Back in this post I noted the incredible tactic by the Administration to obstruct investigation into the warrantless wiretapping scandal by denying security clearance to Justice Department officials. As if FBI agents were potential al Qaeda operatives.

Well, now we now that "the Administration" was in fact the President himself.

The President, personally, obstructing members of his own Administration in order to protect -- members of his own Administration.

So I ask again: Are we at "Worse than Nixon" yet?

---

This will simultaneously make you laugh and cry:


(Click to enlarge.)
The terrorists want to destroy our way of life. They are succeeding.

Senator Arlen Specter wrote a major defense of his "roll over and play dead" bill proposing complete Congressional capitulation to the Administration on warrantless wiretapping (a/k/a spying on American citizens on American soil).

The whole piece is pathetic tripe and doublespeak, but this is the black hole that is pulling in all commentary from everywhere:

The president's constitutional power either exists or does not exist, no matter what any statute may say.

My god.

There you have it: the first open acknowledgement of an unspoken premise that those of us opposed to the NSA program and the Administration's cross-eyed defense of it had feared almost from the outset --

The President is, according to Specter, a dictator in time of war.
The fact that the "war" is open-ended and against a nebulous non-nation-state entity does not matter.

And this comes from a self-professed opponent of the Administration's position, one who is selling his bill as a "major breakthrough" after "fierce negotiation."

Hogwash.

As others are explaining (see links below), the Specter view flagrantly disregards fifty years of constitutional jurisprudence and betrays one of the most famous separation of powers decisions ever handed down: Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952) (the "Steel Seizure Case"), not to mention the recent Hamdan decision, which expressly rejected the concept of "inherent" plenary Article II power.

The Specter Doctrine also violates another basic legal premise, as I mentioned previously: It fails to distinguish between the validity or constitutionality of a law or government program "on its face" versus "as applied."

One review, by one court, of the entire program, conducted ex parte and in secret? This is judicial review? This is due process of law? And this is from the Chairman of the Senate Judiciary Committee?

Let me give you an example of how a single court review of an executive program cannot possibly satisfy the Constitution: the draft.

Assume, for the sake of argument, that military conscription is re-instituted in its historical form. That form of the draft has been (wrongly) upheld by the courts. The program, as a "program," has been "approved" by a court. And certainly the draft would be part of the President's "inherent" wartime powers under Article II, no?

Now assume that the President, invoking his "inherent" Article II powers as Commander-in-Chief, starts drafting women. Women never had an opportunity to challenge the draft. And now they never can, because the "program" has been "reviewed" by a court? One bite at the apple and that's it? And besides, this is all optional anyway — the President has "inherent" wartime power, does he not?

Now assume that President starts drafting minors. That issue was also never litigated. Would anyone dare suggest it couldn't be, because the "program" was already "reviewed" by a court. And besides, the President has "inherent" wartime powers, right?

Now assume that the President offers a buyout from the draft, much like the infamous $300 exemption available during the Civil War. Anyone with $30,000 can buy their way out of the draft. Not to be challenged? See generally, "program," "reviewed," "inherent."

Now assume that the President starts exempting people personally, on an ad hoc basis. Maybe the son of a major campaign contributor. Maybe Jenna's boyfriend. Maybe he starts selling exemptions the way Bill Clinton sold pardons. But not to be challenged — "program," "reviewed," "inherent."

Surely this cannot be. So too can there surely not be one and only review of the NSA "program," by a secret court with no confrontation, no discovery and no public access. That is not judicial review, that is not due process of law, and that is not the American way.

And Senator Specter knows it.

More thoughts from Glenn Greenwald, Marty Lederman, Anonymous Liberal.

A federal judge has dismissed the "Studs Terkel" lawsuit against AT&T in connection with the NSA "phone records scandal" --

"The court is persuaded that requiring AT&T to confirm or deny whether it has disclosed large quantities of telephone records to the federal government could give adversaries of this country valuable insight into the government's intelligence activities," U.S. District Judge Matthew F. Kennelly said.
...
He also said Terkel and the other plaintiffs in the lawsuit, which sought class-action status, had not shown that their own records had been provided to the government. As a result, they lacked standing to sue the government, he said.

I have to defer to the procedure wonks, but isn't there a rule that if a judge determines that the plaintiffs in a lawsuit lack standing to sue, then he should dismiss on that basis only and not even attempt to reach the merits or any other defenses (i.e., including the supposed applicability of the "state secrets privilege")?

And if so, then is failing to so limit oneself not an example of true "judicial activism"?

Just wondering.

Guess who said this:

Why should our laws make it more difficult to target al Qaeda communications that are most important to us -- those entering or leaving this country?

Hint: I warned you.

The ironic part is that Michael Hayden is now probably less of a threat to civil liberties in his new role as CIA Director than he was as head of the National Security Agency and chief architect of the scandalous warrantless wiretapping program.

In any case, the answer to Hayden's question is:

Because there is more to good governance, and more to
protecting the American people, than defeating al Qaeda.
And anyone who cannot appreciate that most fundamental premise is not competent to serve in a position of power, especially clandestine power, in our government.

More thoughts from defcon:blog.

So I finally got around to watching V for Vendetta. (One manifestation of my Gradual Descent into Sociopathy™ is my total refusal to set foot inside movie theaters anymore.) I give it 4.9 stars, with a nominal ding for poor sound quality (V mumbles too much and I had to keep switching the volume between 30 for dialogue and 20 for things exploding.)

Anyway, as most of you undoubtedly know by now, most of the movie, from the perspective of a libertarian, can be summarized with "But of course..." One brief snippet that I don't recall having been discussed anywhere when the movie was released caught my eye, however.

In the latter half of the movie there is a scene where the Party sends a roving van with sonic cones through the city to collect secretly eavesdropped family conversations about the events of the day. The next morning a poll-like summary of attitudes is calculated and presented to High Chancellor Sutler. Apparently the recordings are not used to prosecute, or persecute, anyone. The identifying information is, one can assume, stripped or just ignored as irrelevant. The point is not to catch criminals or traitors -- just to gather the (involuntary) equivalent of polling data.

Now the first reflex to such a program (based on U.S. law) would be to recall Kyllo v. U.S., 533 U.S. 27 (2001), in which the Supreme Court held that peering inside a home with heat-sensing technology is a "search" subject to the Fourth Amendment. Surely warrantless sonic cones peering inside living rooms are sufficiently analogous to warrantless heat sensors peering inside garages to be proscribed, right?

But now consider the position of the Bush Administration with respect to the phone records scandal. The information collected, we are assured, is stripped and anonymized. It is not used to prosecute, or persecute, anyone. It is used merely to try to identify calling trends. The point is not to catch terrorists -- just to gather the involuntary equivalent of polling data.

Hmm...

Meanwhile, one can just imagine Richard Posner applying his asinine view of data mining by the government (i.e., that a government computer cannot invade your privacy, only a government employee can) to such a sonic cone "opinion mining" operation. If the recordings are anonymized, and the results tallied by computer, then under the Posnerian worldview there is no invasion of privacy and no Fourth Amendment difficulties. The sonic cone program is no different in principle from the phone records program or any other involuntary data mining government surveillance program, an anti-privacy apologist such as Posner might argue.

Hmm...

"People should not be afraid of their government's (sonic cones)..."

Sorry for the review of elementary logic, but the folks over at the Wall Street Journal (cross-posted at OpinionJournal) seem to need it:

British antiterrorism chief Peter Clarke said at a news conference that the plot was foiled because "a large number of people" had been under surveillance, with police monitoring "spending, travel and communications."

Let's emphasize that again: The plot was foiled because a large number of people were under surveillance concerning their spending, travel and communications. Which leads us to wonder if Scotland Yard would have succeeded if the ACLU or the New York Times had first learned the details of such surveillance programs.
...
In short, Democrats who claim to want "focus" on the war on terror have wanted it fought without the intelligence, interrogation and detention tools necessary to win it. [Emphasis in original.]

To which I must let out a Rumsfeldian "Oh my goodness..."

First off, let me pat myself on the back for having seen this coming:

I'll bet dollars to donuts that the NSA warrantless wiretapping program did not in any way contribute to the thwarting of this apparent plot. But I'll also bet dollars to donuts that the apologists for the program will hold up this incident as somehow demonstrating the need for the program.

Acta est fabula, plaudite!(*)

It's quite simple really: Just because you're opposed to warrantless wiretapping of American citizens on American soil does not mean you are opposed to wiretapping of terrorists overseas. Or, to make it even more remedial: Just because you're opposed to warrantless wiretapping of American citizens on American soil does not mean you are opposed to wiretapping.

You can also be opposed to warrantless wiretapping because it's warrantless. In violation of clear statutory proscription and, possibly, the Fourth Amendment.

It's not really necessary to autopsy in any great detail the particulars of the U.K. plot and its irrelevancy to the warrantless wiretapping scandal: these men were known to have a terrorist agenda and had been monitored for months. They were drenched in probable cause, certainly enough for a wiretap warrant, and certainly enough to abide by FISA (which, recall, even allows a generous window for retroactive warrants.) I certainly hope they were wiretapped, and to the extent they called Americans in America, I hope those calls were wiretapped too.

It's not the wiretapping — it's the warrantless, (stupid).

Any attempt to obfuscate that is highly illogical.

Some more examples of apologists for the Bush Administration's warrantless wiretapping program falsely suggesting that the foiled U.K. terror plot is in any way a justification of the program:

First, we have OpinionJournal making it twice in two days --

Time notes that "U.S. intelligence provided London authorities with intercepts of the group's communications." Gosh, it'd be a shame if anyone ran afoul of FISA or anything...

Ah yes, that professional journalistic integrity and objectivity that Best of the Web is so well known for.

Let's take a peek at that Time article, shall we?

Britain's MI-5 intelligence service and Scotland Yard had been tracking the plot for several months, but only in the past two weeks had the plotters' planning begun to crystallize, senior U.S. officials tell TIME. In the two or three days before the arrests, the cell was going operational, and authorities were pressed into action. MI5 and Scotland Yard agents tracked the plotters from the ground, while a knowledgeable American official says U.S. intelligence provided London authorities with intercepts of the group's communications.

So in reality the U.S. dog was being wagged by the U.K. tail. Moreover, there is no indication, none whatsoever, that the NSA warrantless wiretapping program was involved at all, or that whatever wiretapping that did take place did not, or could not, comply with FISA'a warrant requirement.

If this is the "Best of the Web Today," then I'd hate to see the worst.

---

On the other hand, perhaps this qualifies as the "Worst of the Web Today" --

The disruption of an alleged terrorist plot to blow up airliners shows the importance of intelligence gathering and the need to pursue the "traitors" who recently leaked information about classified government programs, Sen. Rick Santorum said Friday.

Those classified programs "were important for us to be able to confront an enemy in time of war," Santorum said. "When people leak that kind of information, to me, that is traitorous activity."

Santorum, the No. 3 Senate Republican, acknowledged that he did not know whether classified programs recently brought to light by leaks, such as a National Security Agency warrantless wiretapping program, were involved in heading off the alleged terrorist plan to smuggle explosive components onto passenger jets.

Details, details...

Again, I don't know any sane person who doesn't think we should be gathering intelligence in order to prevent terrorism. And as I explained yesterday, that can easily include wiretapping. It's the warrantless, stupid.

It is not treason to expose government abuses of power. It is not treason to love our country but not our government. And it is certainly not treason to expose inaccurate and intentionally misleading accounts by biased media and ultra-partisan politicians.

As for what these apologists for the Administration are saying and writing, perhaps we should start calling it the Reverse Patrick Henry Doctrine: "If this not be treason, then make the most of it anyway."

---

Similar analysis from Glenn Greenwald.

I have perused the decision by a federal district judge in Michigan declaring the NSA warrantless wiretapping program to be in violation of both FISA and the Fourth Amendment and have some thoughts.

While the decision contains a wealth of flowery language reminiscent of, say, a post by a libertarian blawger, it is rather weak on actual analysis. On the other hand, what little analysis it contains is spot-on accurate.

Here's a summary of the decision's findings:

--The state secrets privilege is not applicable to the extent that the litigation requires no new discovery. In other words, the government cannot deny that "everybody already knows" about the NSA program, but it can refuse to disclose any further information beyond what is in the public domain. To the extent that the plaintiffs can proceed solely on that basis, they are permitted to do so. The challenge to the government's data mining operations was, however, quashed under the state secrets doctrine. (Translation: Without the "traitorous" reporting by the media, the NSA program — which the judge has found unconstitutional — would have been allowed to continue. Go figure.)

--The plaintiffs have standing to sue, mainly because their ability as journalists and scholars to communicate with foreigners has been hindered.

--The program violates the Fourth Amendment. This is by far the weakest part of decision and boils down to the judge saying "just because." Nominally the argument is: To the extent that the warrant requirement can be circumvented for special circumstances, the FISA framework is more than adequate to do so and must therefore be adhered to.

--The program violates the First Amendment. Also a very weak analysis. Basically a "chilling effect" argument premised on the nature of the "speech" being monitored. Not at all persuasive.

--Separation of Powers / AUMF / Article II. Here Judge Taylor is reading strictly from the civil liberties script, and fortunately so. She correctly applies the Youngstown framework (i.e., FISA controls and the President's power to circumvent it is "at its lowest ebb"), the Authorization of the Use of Military Force did not repeal or amend FISA by implication (because courts have always tried to avoid such constructions), and the Commander-in-Chief power cannot be plenary, even in time of war, since such a view offends the plain text of Article I and the Bill of Rights.

It's always good to have to wind at your back going into the appellate process, but we should expect much (but hopefully not all) of the decision to be reversed.

The case is ACLU v. Alexander, No. 06-CV-10204 (E.D. Michigan, August 17, 2006) (PDF - 44 pages). More thoughts from Glenn Greenwald.

Who's criticizing whose analysis?

OpinionJournal, a/k/a Wall Street Journal:

In this environment, monitoring the communications of our enemies is neither a luxury nor some sinister plot to chill domestic dissent.

--But how do we know they're our enemies? Do we have, um, probable cause to think so? Or even just the less onerous standard of "reasonable suspicion"? Or, um, anything specific enough to get a FISA warrant?

New York Sun:

Yesterday's ruling follows the disclosure in December of an NSA program to listen in on calls between suspected terrorists abroad and those on American soil who might be communicating with them.

--But why do we suspect that they're terrorists? Because we have, um, probable cause or reasonable grounds to suspect it? Enough to get a FISA warrant?

NRO:

The lone judge in American history to order a president to halt in wartime a foreign-intelligence-collection program that has undoubtedly saved lives probably sympathizes with the journalists, and others, who are suing to stop the Terrorist Surveillance Program in which NSA intercepts foreign-U.S. terrorist communications.

--But how do we know that they're terrorists? Because we have, um, probable cause to know it? Enough to get a FISA warrant?

USA Today:

The NSA program applies only to international calls, and only those intercepted while tracking known or suspected al-Qaeda operatives.

--But how do we know or suspect that they are al-Qaeda operatives? Because we have, um, probable cause? Enough to get a FISA warrant?

It's not the wiretapping. It's the warrantless, stupid!

Similar thoughts from defcon:blog.

More of the same --

John McCain, Politician:

We need to have surveillance, we all know that, from the events of, that just took place a few day ago in London. So I disagree with it.

And who, exactly, is proposing that we should not have surveillance? Because Judge Anna Diggs Taylor certainly wasn't proposing that when she ruled that the NSA warrantless wiretapping program is both unconstitutional and an impermissible violation of FISA.

Washington Times:

It looks increasingly like this episode will end up damaging the anti-surveillance crowd's prospects.

If there is such a thing as the "anti-surveillance crowd," then I have not met any of them. Where exactly do the editors of the Washington Times see this "crowd"?

It's not the wiretapping. It's the warrantless, stupid!

Judge Richard Posner has yet again stepped up to the mic to defend the view that the War on Terror requires absolute deference by judges:

Monitoring, even when it takes the form of wiretapping or other electronic interceptions, need not be conducted under a warrant. The Fourth Amendment restricts warrants, as I have said, but warrantless searches are permissible as long as they are reasonable. The potential abuses of warrantless surveillance can be minimized, without judicial intervention, by rules limiting the use of intercepted communications to national security, requiring that the names of persons whose communications are intercepted (and the reasons for and results of the interception) be turned over to executive and congressional watchdog committees, and imposing draconian penalties on officials who violate civil liberties in conducting surveillance.

This is, of course, utter nonsense.

First off, Posner's "reasonableness always trumps warrants" view of the Fourth Amendment runs counter to Supreme Court precedent, especially Katz v. U.S., 389 U.S. 347 (1967), as well legal and popular consensus, and the plain text of the document (why mention warrants at all if they were not to be considered, whenever at all possible, a condition precedent to a search, whether reasonable or not?). There is also, it apparently needs to be reiterated, nothing in the text of the Fourth Amendment limiting it to "criminal matters."

But far more disturbing is Posner's irrational confidence in (hypothetical) "extra-judicial" checks on abuse of warrantless eavesdropping, and indeed on warrantless searches in general. A man who has seen, and made, so much law during his career ought to have a better understanding of the political process and its shortcomings, and of the limitless danger of relying solely on the good faith and ethical steadfastness of politicians, bureaucrats, regulators, generals and spies.

We shouldn't be so naive. We don't need to be so naive. So why are we becoming so naive?

"Al Qaeda" is simply not a good enough answer.

More thoughts at Balkinization.

President Bush's political mastermind is certainly not his legal mastermind*:

Presidential adviser Karl Rove criticized a federal judge's order for an immediate end to the government's warrantless surveillance program, saying such a program might have prevented the Sept. 11, 2001, terrorist attacks.

Rove said Wednesday the government should be free to listen if al-Qaida is calling someone within the U.S.

Of course, the government is free to listen in on al Qaeda — after it gets a warrant to do so (which would certainly be granted if it really is al Qaeda):

It is also rare for FISA warrant requests to be turned down by the court. Through the end of 2004, 18,761 warrants were granted, while just five were rejected (many sources say four). Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004. The four known rejected requests were all from 2003, and all four were partially granted after being resubmitted for reconsideration by the government.

It's not the wiretapping. It's the warrantless, stupid!

(*For that he has Harriet "Uniquely Qualified" Miers, remember?)

It's hard to keep up with all the developments regarding the conspiracy between the White House and Senate Judiciary Committee Lapdog Chairman Arlen Specter to "legitimize" the NSA domestic spying program — one summary is available here.

There's a lot of nonsense in the National Security Surveillance Act of 2006, and others are chronicling it. I would like to spackle in one observation that I have made before:

The bill would subject the program to a review to determine its legality by the Foreign Intelligence Surveillance Court (FISC), established by the 1978 Foreign Intelligence Surveillance Act (FISA).

A few hasty stitches on this meaningless "safeguard" --

--The FISA Court, staffed by federal judges chosen by the Chief Justice, is not designed to be a court of constitutional review. It is designed to issue FISA warrants (something it does quite efficiently — a fact that the apologists for warrantless wiretapping never want to discuss). Of course, any federal judge is competent to review the constitutionality of a law — they do it all the time. But they can do it responsibly and legitimately only when properly briefed by the parties and with the full resources normally available to a judge. That is not the case with the FISC or with its proposed "review" of the warrantless wiretapping program. This will be a strictly "ex parte" review. The FISA judges will only have the information that the NSA chooses to give it, and there will be no adversarial party, such as the ACLU or CATO Institute, arguing against it. Not to impugn the judges, but this "review" would be a kangaroo court.

--As I've blogged previously: whatever happened to the distinction between a law, or program, being valid facially but not as applied? How can you review the domestic spying program outside of the actual work it does? Just because a "program" may be constitutional and legal in the abstract, that does not mean it will be acting constitutionally or legally in every instance. This is not a difficult concept: the death penalty is "constitutional and legal," but not in every capital case. The federal income tax is "constitutional and legal," but not every IRS interpretation is. A party being infringed upon by the government has a due process right to a review of the infringement in his particular context. An aged declaration that "the program" is valid is meaningless and an affront to the principles of justice.

The Terrorist Surveillance Program (which is nothing of the kind — if we're so sure that they're terrorists then why not get a warrant?) is a program for wiretapping of American citizens on American soil. The people targeted by it — American citizens on American soil — deserve better than some Orwellian gobbledygook and creative wink-wink sham processes for validating it.

Shame on Arlen Specter and the other Judiciary Committee Republicans for this shameful vote against due process, judicial review, civil liberties and the American way.

Similar thoughts at Balkinization.

From the President's press conference earlier this afternoon:

The second bill before Congress would modernize our electronic surveillance laws and provide additional authority for the terrorist surveillance program. I authorized the National Security Agency to operate this vital program in response to the 9/11 attacks. It allows us to quickly monitor terrorist communications between someone overseas and someone in the United States, and it's helped detect and prevent attacks on our country.

The principle behind this program is clear: when an al Qaeda operative is calling into the United States or out of the country, we need to know who they're calling, why they're calling, and what they're planning.

But Mr. President, how do you know — or suspect — that the person is a terrorist or an al Qaeda operative? Because you have probable cause to that effect? If so, then why not get a FISA warrant — retroactively if need be?

Given that the program entails spying on American citizens on American soil, is that too unpatriotic a question to ask? Does asking it make me a "civil liberties absolutist," as some of your defenders perpetually insist? Does merely asking the question mean that I am supporting the terrorists? With all due respect, Mr. President, I think not.

It's not the wiretapping. It's the warrantless, Mr. President.

"That the Framers did not intend for federal judges to roam at large in construing the Constitution and laws of the United States but rather preferred and provided for resolution of disputes arising in a ''judicial'' manner is revealed not only in the language of [Article III,] Sec. 2 ... but as well in the refusal to associate the judges in the extra-judicial functions which some members of the Convention — Madison and Wilson notably — conceived for them. Thus, four times proposals for associating the judges in a council of revision to pass on laws generally were voted down, and similar fates befell suggestions that the Chief Justice be a member of a privy council to assist the President and that the President or either House of Congress be able to request advisory opinions of the Supreme Court." [Source.]

Leading constitutional scholar Bruce Ackerman echoes my criticism of the Specter "compromise" bill that would submit the NSA warrantless wiretapping program (d/b/a "Terrorist Surveillance Program") to some absurd sort of "one-time review" by the appellate panel of the Foreign Intelligence Surveillance Court:

The administration's bill ... grants the government the power to seek authorization for its surveillance programs from the special FISA court in what would be a mockery of a judicial proceeding. The FISA judges will only hear the president's side of the argument. They will consider the NSA program in the abstract, without the discipline of case-by-case judgments. And they may issue their decision in secret.

This is essentially the "facial versus as-applied" distinction I made in this post.

Ackerman goes further:

This system makes federal judges the handmaidens of the executive branch and forces them to go beyond their limited authority to decide concrete "cases" and "controversies." If this bill becomes law, it will generate a constitutional crisis.

I was never very good with the whole "Article III court versus Article I court" distinction — FISC would appear to be an Article III court. If so, then as every law school student learns (and sometimes forgets), the "judicial power" of Article III is limited to "cases and controversies" and federal courts are forbidden from issuing "advisory opinions." Which would pretty clearly suggest that the whole "FISA review" aspect of the Specter bill is patently unconstitutional. (Whether that automatically implies a "constitutional crisis," as Ackerman claims, is another matter altogether.)

Furthermore, as Ackerman notes, the FISA judges, while all duly appointed and confirmed to other federal courts, are not so appointed to the FISC — they are unilaterally appointed to that court by the Chief Justice. This also raises some core separation-of-powers concerns.

Bottom line: The Specter bill is not only bad policy, it is also bad statecraft.

In any case, the Ackerman article is meant for lay readers — so go and lay-read it.

ACS Blog recently ran a series of four posts in which University of Chicago Law School colleagues Geoffrey R. Stone and Richard Posner debate "Civil Liberties in Wartime." You may recall that I have been chronicling Judge Posner's increasingly bizarre views on warrantless wiretapping, data mining and the "trade-off" between liberty and security in the War on Terror. Posner is becoming increasingly lexicographical in his preference for the latter over the former (i.e., he is approaching a worldview in which, for all intents and purposes, no price, including emasculating the Bill of Rights, is too high to win the War on Terror).

Here are some verbatim excerpts from Posner's posts that illustrate his increasingly fringe position:

--I do not think that "restrictions of liberties should be a last resort."

--Civil liberties are valuable, but their values should be assessed in a practical, hard-headed way, rather than treated with quasi-religious veneration.

--I am not prepared to die at the hands of terrorists in order to defend the Miranda rule ... or the other arabesques that the Supreme Court in the Earl Warren era inscribed on the helpless text of the Constitution.

--Since the American public has already surrendered much of its communicative privacy by its profligate use of analog cell-phones, employers’ email services, and Web services such as Amazon.com and Google which create essentially indelible records of customers’ preferences, including political and sexual, I do not think the public would blanche at giving up a bit more to enable the government to monitor terrorist communications.

--What I think national security requires is a two-stage process. In the first, computer search programs search the world’s entire daily electronic traffic (to the extent feasible) for messages that are suspicious because of names or word clusters in the message, social security numbers or other personal identifying information besides names, the origin or destination of the message, and other suspicious characteristics. These messages, a minute fraction of all those screened by the search programs, would be listened to or read (as the case may be) by (human) intelligence officers.

--Computer screening is not a search, because a computer is not sentient.

I think that can all be summed up nicely in one word: scary.

What Posner, who essentially invented the field of "law and economics," so unforgivably forgets is that much of his position is based on wholly subjective preferences and not on objective standards. Perhaps he is not willing to die to defend the Miranda rule, but what if I am? Who is he, even as credentialed as he is, to insist that no one else demand "quasi-religious veneration" of the Bill of Rights? It cannot be shown, objectively, that his preferences are "right" and anyone else's are "wrong." And given that it is the Bill of Rights and basic civil liberties, should our competing preferences really be subject to a majority vote to see whose views win?

What is "the American way of life" that we are so desperate to defend, if not respect for the Constitution and for civil liberties? One wonders whether Posner, who is so insistent about not dying, would a generation ago have embraced the saying, "Better Red than Dead"?

There are ways, safe and effective ways, to prosecute the War on Terror without turning it into a war on the Constitution. One would have hoped that our preeminent legal scholars would understand this.

Score one for gridlock!

President George W. Bush has decided not to reauthorize the controversial domestic warrantless surveillance program for terrorism suspects and to put it under the authority of a secret special court, Attorney General Alberto Gonzales said on Wednesday.

"The president has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires," Gonzales wrote in a letter to Senate leaders.

"Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court," Gonzales said.

Of course, this doesn't mean that the White House won't just continue the program secretly, as the original TSP was always meant to be. But assuming that President Bush is increasingly concerned mostly with his legacy and not with trying to legitimize his past sins, I choose to remain optimistic.

Meanwhile, I hope Congressional Democrats don't take too much credit for this uplifting civil liberties victory — they really hadn't gotten around to doing anything about it. Without sounding too immodest, the blogosphere deserves the bulk of the praise for relentlessly keeping this story alive and accurate.

ACSblog has the letter from Attorney General Gonzales. More thoughts from Blakinization, Con Law Geek, Cato@Liberty, Liberty Papers.

UPDATE: As SCOTUSblog notes, this maneuver by the Administration may render the litigation over the TSP moot; Gonzales has filed documents with the Sixth Circuit informing them that, well, more documents are forthcoming. They will almost certainly be motions to dismiss.

Bottom line: The White House may simply be trying to avoid more embarrassing court defeats. Thank goodness for "activist" judges.

Even by Bush Administration standards, this is way too Orwellian:

A White House privacy board has determined that two of the Bush administration's controversial surveillance programs — electronic eavesdropping and financial tracking — do not violate citizens' civil liberties.
...
After several classified briefings, the board was reassured by the eavesdropping program's "multiple layers of checks and balances and accountability," [Lanny Davis, a former Clinton White House counsel and the lone Democrat on the panel] said. "The people running the program themselves are very well-trained and identified bright lines."
...
The board does not have subpoena power, and the White House can check its annual reports to Congress. The members serve at the pleasure of Bush, and Attorney General Alberto Gonzales has final say over whether officials must comply with the board's recommendations.

Two hasty stitches:

--If a partisan, powerless "privacy board" can be given enough access to the super-secret details of the NSA warrantless wiretapping program, then why can't a court? Why does the Administration continue to insist that the "state secrets doctrine" precludes judicial oversight, or at best allows one (advisory) court to review the program — once and only once — independent of any actual litigation?

--Does the Administration continue to pretend that the issue is simply "privacy" and not "legality"? Just because a program purportedly "respects privacy sufficiently" does not make it legal. This absurd "privacy board" puts the cart before the horse.

For example, the whole country might unanimously agree that the line-item veto is a great idea, but it's still unconstitutional unless and until the Presentment Clause is amended. Similarly, no mere majority, no matter how lopsided, can enable the criminalization of flag-burning without changing the Constitution — the First Amendment does not read polling data.

The same with warrantless wiretapping: neither the government nor its apologists get to "skip" the question of "Is it legal?" and jump straight to "Is it safe?" or "Is it wise?" This gaggle of impotent rubber-stampers should have been disbanded — or at least gagged — until the judicial review process (such as it is) was allowed to take its course. Their pronouncement that the program is hunky-dory is both prejudicial and propagandistic.

More thoughts from 27B Stroke 6.

The Bush Administration wants Congress to amend the Foreign Intelligence Surveillance Act ("FISA") to allow for more domestic spying:

Currently, under the 1978 Foreign Intelligence Surveillance Act, individuals have to be associated with a foreign terrorism suspect or a foreign power to fall under the auspices of the FISA court, which can grant the authority to institute federal surveillance. The White House proposes expanding potential targets to include non-citizens believed to possess, transmit or receive important foreign intelligence information, as well as those engaged in the United States in activities related to the purchase or development of weapons of mass destruction.

The proposed revisions to FISA would also allow the government to keep information obtained "unintentionally," unrelated to the purpose of the surveillance, if it "contains significant foreign intelligence." Currently such information is destroyed unless it indicates threat of death or serious bodily harm.

Two hasty stitches:

--Do you think this administration (which, recall, has previously dismissed FISA outright as either repealed by the AUMF, or just plain unconstitutional as an infringement upon the president's "unitary executive" power) would interpret the term "related to" expansively or narrowly? With enough strained logic, anything can be "related to" anything else. Merely visiting certain websites can be "related to" activities (defined how?) conceivably connected to terrorism. So could an ATM withdrawal. Or a phone call. The FIS Court already grants well over 99% of domestic spying warrant requests, so where exactly is the "warrant gap" that the administration insists is hampering it?

--The same logical flaw underpinning the NSA domestic spying program would apply to this new authorization — it can and will still ensnare American citizens on American soil. The government still needs only one party to the communication — or, now, "activity" — for the government to obtain a warrant. If the "activity" touches a U.S. citizen, then intentionally or not it's still domestic spying on American citizens. Into that bramble bush we have already ventured too far.

If anything, Congress should be reining in the FISA warrant complex and strengthening the standards for granting FISA warrants. And the whole question of the NSA's warrantless wiretapping program remains unresolved.

So perhaps "first things first" is the better position right now.

More thoughts at Liberty Papers.

To review: The White House had agreed in January to cease its NSA "Terrorist Surveillance Program," which authorized warrantless wiretapping of American citizens on American soil, despite the nearly universal consensus that the program clearly violated the plain text of FISA, and arguably the Fourth Amendment.

Now it appears that by "cease," they really meant "pause" --

But on Tuesday, the senior officials, including Michael McConnell, the new director of national intelligence, said they believed that the president still had the authority under Article II of the Constitution to once again order the N.S.A. to conduct surveillance inside the country without warrants.

During a hearing Tuesday of the Senate Intelligence Committee, Mr. McConnell was asked by Senator Russ Feingold, Democrat of Wisconsin, whether he could promise that the administration would no longer sidestep the court when seeking warrants.

"Sir, the president's authority under Article II is in the Constitution," Mr. McConnell said. "So if the president chose to exercise Article II authority, that would be the president's call."

I of course don't recall seeing the term "warrant" anywhere in Article II. Where does that word appear again? And what if Congress simply defunded the program? So much for "Article II authority."

The exchange came as the administration is seeking new legislation to update the surveillance act to expand the government's surveillance powers, in part to deal with vast changes in communications technology since 1978, when the measure was enacted.

Of course, FISA has already been amended eight times since 1978 -- including via the PATRIOT Act. It is not a "Carter-era law," it is a "Bush-era law."

The White House says that the outmoded rules embedded in the law mean that the government cannot eavesdrop on some telephone calls, e-mail and other communications that do not involve Americans or impinge on the privacy rights of people inside the United States.

Okay fine -- but if the proposed changes are so innocuous, then why stonewall Congress? As the anti-rights crowd might say, "If you're not doing anything wrong, then why not let us look inside?"

Two more hasty stitches:

--Are these the maneuverings and prevarications of "wise men," or of typical politicians and bureaucrats?

--Speaking of typical politicians, will any of the current presidential candidates step forward to declare unequivocally that he or she would, upon taking office, immediately and unconditionally abolish the Terrorist Surveillance Program and cease any and all warrantless spying on American citizens on American soil and strictly abide by the plain text FISA and the Fourth Amendment?