That’s the best description of heard used to describe the media-fueled outrage over the NYTimes book promo article (using the Common Dreams link as the original link to the NYTimes piece is now a PPV link) and subsequent reporting on domestic ‘eavesdropping’ (of foreign communications made on American soil, I might add) that was authorized by the President shortly after the 9-11 attacks.
That fitting description was made by David B. Rivkin and Lee A. Casey who are lawyers who served in the Justice Department in the Reagan and George H. W. Bush administrations. They have an opinion piece in the NYTimes today. Snippets:
The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat, have espoused the same view. 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. The attempt, by Democrats and Republicans alike, to dismantle the president’s core constitutional power in wartime is wrongheaded and should be vigorously resisted by the administration.
After all, even the administration’s sternest critics do not deny the compelling need to collect intelligence about Al Qaeda’s plans so we can thwart future attacks. So instead of challenging the program on policy grounds, most have focused on its legal propriety, specifically Mr. Bush’s decision not to follow the framework established by the 1978 Foreign Intelligence Surveillance Act.
In an effort to control counterintelligence activities in the United States during the cold war, the surveillance act established a special court, known as the FISA court, with authority to issue wiretapping warrants. Instead of having to show that it has “probable cause” to believe criminal activity is taking place (which is required to obtain a warrant in an ordinary investigation), the government can get a warrant from the FISA court when there is probable cause to believe the target of surveillance is a foreign power or its agent.
Although the administration could have sought such warrants, it chose not to for good reasons. The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps. Furthermore, the FISA court is not a rubber stamp and may well decline to issue warrants even when wartime necessity compels surveillance. More to the point, the surveillance act was designed for the intricate “spy versus spy” world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds. It was not drafted to deal with the collection of intelligence involving the enemy’s military operations in wartime, when information must be put to immediate use.
Read the whole thing.
On a related note, GOP Bloggers has a list of Democrats out there who have not been afraid to go on record as saying Bush was well within his authority as President to authorize the wiretaps.
(Cross-posted at California Conservative)
Related Toldjah So posts:
- Michael Barone on the MSM’s ‘eavesdropping’ coverage
- Brief history of warrantless searches
- Past presidents and the NSA
- Bill Clinton and the NSA
- WSJ: “Thank you for wiretapping”
- The Prez fires back
- Prez essentially says ‘let me do my job’
- The terrorists must be smiling
- “If 1941 Were 2005″
- The media’s war
- Winning in spite of defeatist attitudes
- The undermining of this war
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The Right can be as indignant as you would like but, bush broke the law and he must be impeached. The ends never justify the means. No man is above the law. We all have limits. And Alito believes in the legality of Dictatorship and is a danger to the republic. Sorry folks but your side will loose this argument hands down. Peace
Comment by steve @ 12/27/2005 - 9:08 pm
Its the argument that FISA is unconstitutional, because it encroaches on presidential power. While this argument has been made, it is far from settled. Orrin Kerr at Volokh.com has mentioned it already.
Comment by andrew @ 12/27/2005 - 10:23 pm
Andrew and Steve didn’t see this post I guess
Also, Andrew did not represent the entirety of Orrin Kerr’s arguments. Is that a lie? or a half truth?
Why the continued pattern of inaccurate accusations? Got no hope in life?
Comment by Baklava @ 12/27/2005 - 11:09 pm
The eggnog must have been particularly strong this year.
Baklava - I’m going to go with the eggnog theory, because I really can’t answer why the continued pattern of inaccurate accusations.
Comment by Ryan @ 12/27/2005 - 11:17 pm
I’ll speculate and say because they don’t want Democrat leaders anytime soon…
Comment by Baklava @ 12/27/2005 - 11:19 pm
“Also, Andrew did not represent the entirety of Orrin Kerr’s arguments.”
Just the part about separation of powers which is what this article mentioned.
Comment by andrew @ 12/28/2005 - 7:48 am
What concerns me is not that the President has this power for use against terrorism, but what else he can do with it. I’m all for catching terrorists however it can be done, but not for stopping all lawbreakers with the same voracity.
Say for example I call a friend of mine from years back, who has since become an Al-quaeda operative. The government will tap the call as they should, even though I am in no way a terrorist. During the call I mention that I recently broke into the mall jewelry store and stole $10,000 worth of diamonds.
The way the law currently stands, I would probably be arrested for the theft. I’m certainly not pro-burglary, but this is overstepping the line between rights and security.
In this case I’m for a one-way wall such as Gorelik advocated. If we are going to allow the NSA to have such spying power over terrorists (which I support), then we have to stop them from using this power over ordinary domestic crime with a new law. Otherwise we could indeed be at risk of losing our rights. This is only a step away from using the spying as a tool against political rivals imo.
Comment by Kevin @ 12/28/2005 - 8:18 am
Bak and Ryan,
Steve and andrew continue with their inaccurate accusations because they are in error, misinformed, and failed logic 101. Plus, they’ve both gotten pretty boring.
Comment by PCD @ 12/28/2005 - 8:25 am
hrm. where did my comments go?
Well. I only cited to orrin’s argument about separation of powers because that’s teh issue here.
Comment by andrew @ 12/28/2005 - 10:02 am
4th ammendment-Probable cause. And the lack of a formal Declaration of War. Those are the only arguments and because bush ignored both of them he broke the law and must be impeached. And anyone who continues to support lawlessness is not a patriot. Peace
Comment by steve @ 12/28/2005 - 10:30 am
steve, you are insane.
The President has powers under Article II of the Constitution that trump your petty arguments.
Comment by PCD @ 12/28/2005 - 10:34 am
Kevin wrote, “Say for example I call a friend of mine from years back, who has since become an Al-quaeda operative
I’d be HAPPY that I was a involved in helping the government catch Al Qaida. I might even write a book about how proud I was. That’s the difference between the Democrat obsessed (not wanting to reqaing Democrat power anytime soon) and me (who has the best interest of the U.S. at heart - not Al Qaida).
Comment by Baklava @ 12/28/2005 - 10:40 am
I must not have been clear
. The reason my phone call was tapped was because they already knew about my friend being in Al Qaeda (though I did not), but they used the spy info to get me for burglary, while my now Al Qaeda friend did not get in any trouble at all, nor did they find out anything useful to terrorist prevention.
Re-read my original post if you don’t mind with this post in mind Bak. I am curious to know if you are concerned about it as I am.
Comment by Kevin @ 12/28/2005 - 12:38 pm
Steve,
Probable cause - They are suspected terrorists. So it’s probable that they are worth spying on.
End of story.
And if you need a declaration of war to understand when we are in one, you must believe the last war we fought in was in WWII.
Comment by Kevin @ 12/28/2005 - 12:48 pm
I read your original post and you were clear. I don’t have to accept the premise if I never have nor ever will rob anything. The accepted premise is that I would be HAPPY to be involved in helping the government catch some Al Qaida. Lord knows it’s hard enought already.
I’m guessing you wouldn’t be happy as you’d be involved in some shady things… Great country to live in huh.
Thank you for your 12:48 post.
Comment by Baklava @ 12/28/2005 - 12:53 pm
No, I would be happy as well if an Al-Qaeda guy was nabbed (although in this hypothetical case he wasn’t). I would also be happy if a burglar was nabbed. But I am concerned over HOW the burglar was nabbed.
I’m perfectly willing to let the government impinge on my privacy to catch terrorists. This is life or death for the nation. I am decidedly not willing to let the government encroach on my liberty for something as mundane as burglary, murder, or drug-dealing. That is coming too close to a police-state for me. Of course Bush is not using this aspect of his power for anything except terrorists. But he or any future president could. Clinton in fact did use it to nab some mobsters.
I’m just not comfortable with the law as it stands. I’m ok with spying on terrorists, possible terrorists, foreign spies and such, but the information gathered should only be used to counteract those specific crimes imo, and a law should be created saying so.
Again, Bush has done nothing I disagree with. I’m only hoping for a law saying he can’t do anything I would disagree with.
Comment by Kevin @ 12/28/2005 - 1:29 pm
Kevin wrote, “I’m just not comfortable with the law as it stands.
I’m not comfortable with the terrorists existing.
Kevin wrote, “Again, Bush has done nothing I disagree with. I’m only hoping for a law saying he can’t do anything I would disagree with.
I’m for Bush doing what is right and the liberals not accusing Bush of doing something wrong. Let’s focus like a laser beam (little Michael Medved language) and focus on the real problem. This war on terror is being HAMPERED by the liberals and we need to start some proceedings to get them to stop.
Comment by Baklava @ 12/28/2005 - 1:43 pm
No Baklava, let’s not. Everyone knows that liberals are attempting to diminish our ability to conduct the war on terror (whether they intend to or not). We, as rational people have to ignore that and move on. We have to ignore the cries of “what about the terrorist’s feelings” or whatever they are spouting at the moment. We must do whatever it takes to catch them. But we HAVE to preserve our freedoms. It’s what makes us so great.
As I said earlier, I’m willing to lose some (any, to be more precise) rights to privacy (aka secrecy) to help our country catch terrorists. I’m not willing to sacrifice any privacy to catchg a murderer, thief, or jaywalker. Do you disagree?
Comment by Kevin @ 12/28/2005 - 2:17 pm
This is a nation of laws. If all of you dictatorial fascists want to live in a place that takes your rights away so that you can “feel” secure perhaps North Korea is a place you might want to live. The President is given limited powers except in a time of war. To be at war the Congress must pass a formal Declaration of War. In order to violate a persons “right to be secure in his person and papers” the law says you first must show “probable cause” and then have a judge or court issue a warrant. bush and Co. broke the law, in spirit and in fact, and must be impeached for the good of the Republic. Peace
Comment by steve @ 12/28/2005 - 2:37 pm
steve, for the good of the republic, people like you must be faced down and relegated to the dust bin of history. You are wrong and ignorant of the law and religion.
Can you quote article II of the Constitution? Why do you think an act of Congress trumps the Constitution?
Comment by PCD @ 12/28/2005 - 2:43 pm
How about Article II, Section IV? That’s the part about Impeachment when the President breaks the law. Not showing probable cause and getting a warrant before wiretapping a person is breaking the law. That is an impeachable offense under Article II Section IV. Do you have a different understanding of Article II? Peace
Comment by steve @ 12/28/2005 - 3:53 pm
steve, my you are myopic. We are not talking about domestic spying (What are you hiding?), but communications to known terrorists outside of the country. Are you talking to terrorists, steve?
Comment by PCD @ 12/28/2005 - 4:02 pm
“If all of you dictatorial fascists want to live in a place that takes your rights away so that you can “feel” secure perhaps North Korea is a place you might want to live.”
That’s an interesting comment coming from a self proclaimed communist!
Your posts are as hypocritical as they are irrelevant, Steve, get a new show this one has run it’s course.
Comment by NC Cop @ 12/28/2005 - 11:57 pm