Strengthening Constitutional Self-Government

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Partisan reporting and tracking dirty numbers

This huge New York Times article is a must read. Print it and save it. Much will be made of this either because of what it claims or implies about Bush "secretly" authorizing the NSA to eavesdrop on Americans (never mind that the thing was published today rather than yesterday or tomorrow), or because it will be seen to be nothing strange (or illegal) at all, if you read a couple of pages into the article you will see why. Let’s assume for the moment that the title of the article (and the first paragraph) is revealing of the truth in its stark naked simplicity. Let’s assume that. How does the New York Times know this piece of information? The answer is (as Powerline notes) probably this: someone within the so-called intelligence community leaked the information. Not good. The leaker ought to be found. (Do note that the White House asked the Times not to publish the article; the Times waited one year, apparently not that concerned about civil rights for that period; odd; and then why publish it today?). Note these pregnant paragraphs and the fact mentioned later that Congressional leaders from both parties were briefed and continued to be briefed about the program, as was the FISA court (also note that no one who had been briefed--Democrat or Republican--has taken the opportunity to comment on the program). I am betting that in the public debates about Patriot Act today (so far, it is defeated, and CAIR--ever so concerned about civil liberties--applauds the defeat) no Democrat who used this article to sow doubt about the Administration had been on the intelligence committee and been briefed. Did Rockefeller participate in that debate?

What the agency calls a "special collection program" began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism. The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists’ computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said.

In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.

Under the agency’s longstanding rules, the N.S.A. can target for interception phone calls or e-mail messages on foreign soil, even if the recipients of those communications are in the United States. Usually, though, the government can only target phones and e-mail messages in the United States by first obtaining a court order from the Foreign Intelligence Surveillance Court, which holds its closed sessions at the Justice Department.

There will be more on this, you can count on it.

Discussions - 17 Comments

Thanks, Peter, for the commentary. I hadn’t gotten around yet to reading the article, having only heard a breathless report on NPR that gave no indication of the context of the domestic eavesdropping or the rules under which it was conducted. The timing of the story, of course, is suspicious, apparently intended to help Democrats torpedo the USA Patriot Act reauthorization.

I wonder whether it will be used to complicate the Alito hearings as well.

Just to be clear (I’m not as bright as most in the audience), the "suspiciousness" of the timing has to do with Mr. James Risen’s book release, no?

PS and no doubt also with the fact they waited for a year to break the story. NYT: the true crusaders of civil liberties.

the Administration’s case for not publishing this story a year ago, then decided to publish it anyway. Why? What changed in a year to change the NYT’s mind? Surely it’s not that the threat of terror attacks has gone away. We’re still in serious danger, and I for one am glad to hear that the Administration was pushing so hard to find al-Qaeda cells on U.S. soil. Whoever leaked this info should be found and prosecuted.

Shorter conservative bloggers and pundits: The real scandal here is not that Bush authorized warrantless, probably illegal domestic spying, but that the American people found out about it. Conservatives are, as usual, the defenders of elitism (how dare the people, those peons, be informed what the President is up to for their own good!) and moral relativism (it’s OK if a Republican president does it).

As for the tortured explanations as to why the Times sat on the story, the reports have made that pretty clear: the administration told them not to, and the Times, like most mainstream media outlets, is quite deferential to the government, and only conservatives, with their self-pity and paranoia, could possibly think that the "MSM" is out to get them (liberals may be a little paranoid these days, but that comes with the territory of being shut out of power; conservatives have the unseemly paranoia of the powerful who think the powerless are out to get them). It’s only now, that Bush’s government is losing some of its power, that the Times has the nerve to publish this. To their shame; the people had a right to know about this last year.

MA states "probably illegal" then launches into what is becoming the usual Leftist talking points.


Three years of Congressional briefings and judicial oversight and what we have in the Leftist response to a program specific to international communications to avert terrorist attacks is the unsubstantiated mantra "IT WAS ILLEGAL!"

The Left and its mouthpieces like the NYTimes don’t get the benefit of a doubt from me any more. It’s been "get GW" 24/7 and dead Americans won’t stand in their way.

Nice timing from the Times. Senate lefties and RINOs threaten to filibuster the Patriot Act. The filibuster will need an excuse to be sustainable. Times provides excuse.

No doubt the MSM will pursue Time’s leakers of critical national security info as zealously as they pursued Plames’s.

dave, if you’d been reading anything outside the conservative media in the last week, you’d have noticed that there were reports that there were enough votes to sustain a filibuster, several days before the Times story appeared. The Patriot Act was already as good as filibustered; the Times story simply provided one more reason why the Bush administration can’t be trusted on national security -- but only a bubble-dwelling fool would think that the article made the filibuster possible.

Three years of Congressional briefings and judicial oversight and what we have in the Leftist response to a program specific to international communications to avert terrorist attacks is the unsubstantiated mantra "IT WAS ILLEGAL!"

Well, unlike conservatives -- who claim to be against big government but in fact worship the power of government as long as Republicans are in charge -- we lefties actually have a healthy suspicion of government power and an understanding that secretive, warrantless spying is something that government can’t be trusted with.

If you want to proclaim that when the government does it, it’s not illegal, fine; just admit that you are, as most conservatives are, a cheerleader for big government and government power.

To say nothing of the fact that, after a year, they released the story the day after the greatest foreign policy achievement since the fall of the Berlin Wall.

MA is the fool. If HE would read anything but the Leftist MSM he’d know that these NSA protocols were being scrutinized all along, and that there was no abuse whatsoever. Just another Leftoid nitwit who couldn’t care less if Amerikans get blown away.

M.A. said: "the Times story simply provided one more reason why the Bush administration can’t be trusted on national security..." But there haven’t been anymore attacks, MA. How exactly is the Bush administration supposed to prove to you guys it’s doing a good job?

What law was broken? Specifics, please. (For starters, "warrantless" searches are not always illegal, so using that language hardly establishes your point.)

Well, since you asked...

The law which was broken was the Foreign Intelligence Surveillance Act (United States Code 50, ss1801 et. seq.) passed in 1978. It was updated by the USA PATRIOT act in 2001 and further updated in the Intelligence Authorization Act for FY2002. The FISA defines the legislatively authorized limits on the executive branch with regards to wiretaps within this country for intelligence and security purposes. The FISA specifies that if a wiretap is needed for national security purposes it must be approved by a Foreign Intelligence Surveillance Court. In 2004 there were 1748 such requests made and NONE were denied, additionally, the law specifies that in such a case where law enforcement can claim that there are extraordinary circumstances that require quick response to national security threats the wiretap can begin before an application to the court for authorization can be made as long as the court is notified within 72 hours.

This activity is an illegal overstepping of executive authority. If the appropriate court was not notified of these wiretaps then it does not matter who else in the house or senate happened to have been notified. The FISA, a duly legislated act of congress, was illegally ignored. This is an impeachable offence, BTW.

As to how this will stack up to the Plame affiar, in this case the NYT has a good legal basis for keeping its sources confidential. It was reporting _an actual crime being committed by the executive branch_ and will only have to point out to the court that FISA authorized the executive branch to easily achieve its goals legally and then bring up NYT vs. US (403 US 713, the "Pentagon Papers" case) to justify its release of a report which does not endanger national security (since there was a legal alternative available) but which does serve the public interest by revealing illegal activity by the executive branch.

Dear Mr. Thompson:
Here is what I have found in my efforts check your legal analysis:
§ 1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information…if …(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers

(foreign powers, BTW, is defined to include al qa’eda)

U.S.C. 18, 2516 provides a means of obtaining a court ordered wiretap. It does not provide a prohibition from obtaining a wiretap without a court order, nor does it provide for criminal prosecution nor impeachment for obtaining a wiretap without a court order.

Could you be more specific as to what subsection was violated and what subsection provides for criminal prosecution and or impeachment? Otherwise, STFU.

Yes, my reading of the law is that there was no violation as well. But, for the sake of argument, let’s say there was some technical violation. Two points: 1) there is no way in Hell that this Congress would impeach Bush, so go find another wet dream. 2) Given what we know about who was being ’spied’ on, the American people will be adamantly against impeachment (as they were with Clinton). There’s a real possibility this will backfire on the MSM and the Limocrats.

I might add that, if Bush does somehow end up impeached for this, at least he’s going down serving his country. Clinton was impeached over nothing but personal appetities.

FISA permits the government to monitor foreign communications, EVEN IF they are with U.S. citizens. A FISA warrant is ONLY needed if the subject communications are WHOLLY contained in the United States and involve a foreign power or an agent of a foreign power. Today’s Los Angeles Times writes that the program "was designed to enable the NSA to monitor communications between Americans in the U.S. and people overseas suspected of having ties to terrorist networks." Fine. That’s not illegal or even unusual. Also, we have no idea at this time of what Bush’s executive order actually says, we have no idea what conduct we’re supposed to be offended about. Perhaps the executive order expanded the authority of the NSA or expedited the processing of wiretaps. We just don’t know. Bush is correctly refusing to publish the executive order because doing so might jeopardize ongoing operations. Do his critics even care a fig about national security? Not that I can tell. The leakers should be found and punished.

Your impeachment fantasy is a joke, by the way. Feel free to peddle your nonsense somewhere else.

I received my first credit loans when I was not very old and it supported my family very much. However, I require the short term loan as well.

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