Greenwald argues:
One of the most revealing aspects of the NSA scandal has been the way in which Bush followers have been running around shrieking that national security has been damaged and treason has been committed by the New York Times. All of that is based upon the Times' disclosure that Bush ordered the NSA to eavesdrop without judicial oversight (rather than with it). Now that the initial screaming and demands for hangings are dying down a little, his followers are confronted with the fact that this accusation makes no sense whatsoever, since whether we eavesdrop with judicial oversight or without it can’t possibly be of any use to terrorists.
... So the diabolical, unprecedentedly dangerous terrorists who pose an existential threat to the U.S. that is equal to or greater than that posed by the Soviet Union are, in John’s mind, so uninformed, unsophisticated and stupid that they never heard of or knew about the 30-year old public law that defines the powers of the U.S. Government to engage in surveillance for foreign intelligence purposes. They never heard of FISA or knew anything about it until the Times published its story.
And now the cat is out of the bag – now, thanks to the Times, they know that we have this law called "FISA" and have become aware that we do this thing called "eavesdropping" and now they will be able to thwart us. Is that supposed to be satire?
GREENWALD'S HEAVY-HANDED SARCASM ASIDE, HE REALLY ARGUES THAT WHAT BUSH AUTHORIZED WAS CONSTITUTIONAL AND LEGAL. How did he do this? Simple.
This post argues that the leak coudn't have harmed USA security because al Qaeda and its affilates must presumably know that they are being eavesdropped upon. If this is the case, then the eavesdropping is NOT unreasonable and is therefore entirely CONSTITUTIONAL according to Article IV - which only prohibits UNreasonable searches and seizures.
As you may know, there are at 28 types of warrantless searches and seizures which are routinely done by law enforcement all the time. Among the many reasons courts have always permitted these is the fact that they are each reasonable.
Therefore, since nobody communicating with al Qaeda or their affiliates can reasonably expect their conversations to be private, the POTUS-ordered NSA intercept program was constitutional.
It is also INCONTROVERTIBLE that the leakers broke the law. The Intelligence Whitleblower Protection Act signed by Clinton in 1998 provides a legal way for a whisleblower to "blow the whistle" on questionable government activity which is classified. The leakers did NOT use this means; they went to the press. This is against the law. Plain and simple. The leakers broke it.
[Which leads to this question: WHY DID THEY DO IT THIS WAY?! The answer is simple: They knew that the intercepts - although controversial - were legal and constitutional, and that therefore they wouldn't get anywhere using the legal whistle-blowing process. Therefore, they leaked it to the NYTIMES right before the 2004 election because they thought it could harm the president's re-election bid. This is the only logical explanation for why they leaked and when they leaked. It's another example of how the clandestine community attempting a virtual coup d'etat against Bush.]
I also take issue with Greenwald's argument that the NYTIMES and the leakers are not traitors (Greenwald argues that the leak was harmless to our national security because jihadoterrorist must already assume they don't have secure communications. And he argues that a harmless leak can't be treasonous.) HE IS WRONG AGAIN.
The NYTIMES committed treason because the only beneficiary of the leak was the enemy. HOW? Though the leak may not have been an earth-shattering NEWS to the jihadoterrorists, the leak nevertheless CONFIRMED to the enemy what they may have merely presumed or suspected.
Confirming details of the speed and range of intercept activity does actual harm to our efforts to collect useful and ACTIONABLE intelligence, and that obviously aids the enemy. HOW?!
Confirmation alerts the enemy that they MUST seek other less interceptible means to communicate - such as by courier, or by other means. They CAN do this, AND these extra efforts make it tougher for us to learn about and prevent attacks - ESPECIALLY HERE IN THE USA. This is incontrovertible. And it proves potential HARM - of a potentially catastrophic level. (Remember, a successful terrorist attack can cost US thousands of lives and trillions of dollars and tens of thousnads of lost jobs.)
In conclusion: Greenwald UNINTENTIONALLY helps prove that: (1) the intercepts are constitutional; (2) the leakers are criminals; and (3) the leaks hurts national security and aided the enemy. Thanks Glenn Greenwald. I hope your comrades on the Left learn have learned something as well.
This post argues that the leak coudn't have harmed USA security because al Qaeda and its affilates must presumably know that they are being eavesdropped upon. If this is the case, then the eavesdropping is NOT unreasonable and is therefore entirely CONSTITUTIONAL according to Article IV - which only prohibits UNreasonable searches and seizures.
As you may know, there are at 28 types of warrantless searches and seizures which are routinely done by law enforcement all the time. Among the many reasons courts have always permitted these is the fact that they are each reasonable.
Therefore, since nobody communicating with al Qaeda or their affiliates can reasonably expect their conversations to be private, the POTUS-ordered NSA intercept program was constitutional.
It is also INCONTROVERTIBLE that the leakers broke the law. The Intelligence Whitleblower Protection Act signed by Clinton in 1998 provides a legal way for a whisleblower to "blow the whistle" on questionable government activity which is classified. The leakers did NOT use this means; they went to the press. This is against the law. Plain and simple. The leakers broke it.
[Which leads to this question: WHY DID THEY DO IT THIS WAY?! The answer is simple: They knew that the intercepts - although controversial - were legal and constitutional, and that therefore they wouldn't get anywhere using the legal whistle-blowing process. Therefore, they leaked it to the NYTIMES right before the 2004 election because they thought it could harm the president's re-election bid. This is the only logical explanation for why they leaked and when they leaked. It's another example of how the clandestine community attempting a virtual coup d'etat against Bush.]
I also take issue with Greenwald's argument that the NYTIMES and the leakers are not traitors (Greenwald argues that the leak was harmless to our national security because jihadoterrorist must already assume they don't have secure communications. And he argues that a harmless leak can't be treasonous.) HE IS WRONG AGAIN.
The NYTIMES committed treason because the only beneficiary of the leak was the enemy. HOW? Though the leak may not have been an earth-shattering NEWS to the jihadoterrorists, the leak nevertheless CONFIRMED to the enemy what they may have merely presumed or suspected.
Confirming details of the speed and range of intercept activity does actual harm to our efforts to collect useful and ACTIONABLE intelligence, and that obviously aids the enemy. HOW?!
Confirmation alerts the enemy that they MUST seek other less interceptible means to communicate - such as by courier, or by other means. They CAN do this, AND these extra efforts make it tougher for us to learn about and prevent attacks - ESPECIALLY HERE IN THE USA. This is incontrovertible. And it proves potential HARM - of a potentially catastrophic level. (Remember, a successful terrorist attack can cost US thousands of lives and trillions of dollars and tens of thousnads of lost jobs.)
In conclusion: Greenwald UNINTENTIONALLY helps prove that: (1) the intercepts are constitutional; (2) the leakers are criminals; and (3) the leaks hurts national security and aided the enemy. Thanks Glenn Greenwald. I hope your comrades on the Left learn have learned something as well.
UPDATE: JOE KLEIN of TIME corroborates my analysis (hat tip the invaluable and brilliant POWERLINE):
It would have been a scandal if the NSA had not been using these tools to track down the bad guys. There is evidence that the information harvested helped foil several plots and disrupt al-Qaeda operations.
There is also evidence, according to U.S. intelligence officials, that since the New York Times broke the story, the terrorists have modified their behavior, hampering our efforts to keep track of them—but also, on the plus side, hampering their ability to communicate with one another.
7 comments:
rebmarks;
thanks for reading and commenting.
your analaogy is dumb and you are wrong.
congress cannot pass a law that constrains the constitutional power of the potus.
even clinton - WHEN HE SIGNED THE INTELLIGENCE WHISTLEBLOWER PROTECTION ACT - asserted this. as did EVEY president since FISA was enacted. including carter.
is that too hard to udnerstand?
Sass Sunstein - a distinguished liberal constitutional law professor and John Schmidt - clinton's #2 as DoJ make this argument.
check out what carter and clinton each said regarding FISA WHEN THEY WERE the POTUS, when they authorized court-orderless seacrhes and seizures.
FY convenience: here'sClinton in 1998 - when he signed HR 3594:
Presidential Statement on Intelligence Authorization Act
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release October 20, 1998
STATEMENT BY THE PRESIDENT
Today I have signed into law H.R. 3694, the "Intelligence Authorization Act for Fiscal Year 1999." The Act authorizes Fiscal Year 1999 appropriations for U.S. intelligence and intelligence-related activities.
The Act is the product of the dedication and effort of many people in the Congress and my Administration. I believe that the Act will help our Nation maintain a strong intelligence capability and preserve the safety and security of our country. [...]
Finally, I am satisfied that this Act contains an acceptable whistleblower protection provision, free of the constitutional infirmities evident in the Senate-passed version of this legislation. The Act does not constrain my constitutional authority to review and, if appropriate, control disclosure of certain classified information to the Congress. I note that the Act's legislative history makes clear that the Congress, although disagreeing with the executive branch regarding the operative constitutional principles, does not intend to foreclose the exercise of my constitutional authority in this area.
REPEAT:::
note that the Act's legislative history makes clear that the Congress, although disagreeing with the executive branch regarding the operative constitutional principles, does not intend to foreclose the exercise of my constitutional authority in this area.
ALSO FY INFORMATION: ACCORDING TO THE NYUTIMES - the NSA inrecept proigram was highly focused:
EXCERPTS FROM THE 12/15/05 NYTIMES ARTCLE (IN ORIGINAL SEQUENCE) -
"Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications." ...
Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation's legality and oversight. ... Defenders of the program say it has been a critical tool in helping disrupt terrorist plots and prevent attacks inside the United States.
Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans, the officials say. In some cases, they said, the Justice Department eventually seeks warrants if it wants to expand the eavesdropping to include communications confined within the United States.The officials said the administration had briefed Congressional leaders about the program and notified the judge in charge of the Foreign Intelligence Surveillance Court, the secret Washington court that deals with national security issues. ...
While many details about the program remain secret, officials familiar with it said the N.S.A. eavesdropped without warrants on up to 500 people in the United States at any given time. The list changes as some names are added and others dropped, so the [TOTAL] number monitored in this country may have reached into the thousands over the past three years, several officials said. Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored at one time, according to those officials. ...
Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States including American citizens, permanent legal residents, tourists and other foreigners is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation....
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. ...
Until the new program began, the N.S.A. typically limited its domestic surveillance to foreign embassies and missions in Washington, New York and other cities, and obtained court orders to do so. ...
Since 2002, the agency has been conducting some warrantless eavesdropping on people in the United States who are linked, even if indirectly, to suspected terrorists through the chain of phone numbers and e-mail addresses, according to several officials who know of the operation. Under the special program, the agency monitors their international communications, the officials said. The agency, for example, can target phone calls from someone in New York to someone in Afghanistan.
Warrants are still required for eavesdropping on entirely domestic-to-domestic communications, those officials say, meaning that calls from that New Yorker to someone in California could not be monitored without first going to the Federal Intelligence Surveillance Court. ...
After the Sept. 11 attacks, though, the United States intelligence community was criticized for being too risk-averse. The National Security Agency was even cited by the independent 9/11 Commission for adhering to self-imposed rules that were stricter than those set by federal law. ...
Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."
Administration officials were also encouraged by a November 2002 appeals court decision in an unrelated matter. The decision by the Foreign Intelligence Surveillance Court of Review, which sided with the administration in dismantling a bureaucratic "wall" limiting cooperation between prosecutors and intelligence officers, noted "the president's inherent constitutional authority to conduct warrantless foreign intelligence surveillance." [HYPERLINK AND EMPHASIS ADDED - RELIAPUNDIT]
But the same court suggested that national security interests should not be grounds "to jettison the Fourth Amendment requirements" protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, "is a very difficult one to administer."
-------(end NYTIMES excerpts).
OKAY...
ACCORDING TO THE NYTIMES (and their sources):
This program was limited to intercepting the INTERNATIONAL electronic communications of between 500 and maybe 2,000 people in the USA (OVER THREE YEARS, and regardless of their citizenship), and up to 7000 known agents of al Qaeda and their affiliates (WHO WERE OVERSEAS).
This seems like EXTREMELY targeted and focused surveillance to me, and not anything like a "wholesale domestic spying scandal" - which is how the anti-Bush factions are portraying it.
I think that people who are portraying this as a major scandal - one which reveals actions which are illegal, unconstitutional and impeachable - are making a mountain out of a molehill. WORSE: for partisan political reasons, they are making a mountain (which damages our national secrity) out of a beneficial mole-hill.
IMHO, this POTUS ordered program does not even rise to a legal or constitutional problem even if SOME of the info garnered from it ends up allowing SOME of the suspects to be charged in a court of law.
After all, this is how the FISA COURT OF REVIEW decided the issue (in 2002) and - even more importantly - this is one of the MOST IMPORTANT CHANGES we wanted to make and did make after 9/11: we WANTED to "break down the wall" between international intelligence and domestic law enforcement, ESPECIALLY if it could prevent an attack.
The DFBI and DNSA and DDNI have said that this HIGHLY TARGETED AND FOCUSED program and others have prevented attacks.
Therefore it seems ENTIRELY good, if not essential AND appropriate to me.
And entirely legal and constitutional, at least according to:
an opinion, cited in that NYTIMES expose, written by the FISA Court of Review (which cited the SCOTUS and other federal district courts in their opinion), and which specifically held that the POTUS DOES have the right and authority to gather surveillance without a court order in order to garner foreign intelligence.
IN CONCLUSION: This isn't even a tempest in a teapot; this is a drizzle in a tea-cup.
hey remarks, thanks for coming abck for. really.
you ask:
(1) "... where do you think POTUS's power ends?"
just where the constitution says it ends. and i agree wioth the scotus that surveillance against DOMESTIC threats MUST ALWAYS get a regular court order. domestic measn NOT CONNECTED TO A FOREIGN POWER/AGENT/THREAT.
(2) you point out:
"Both Clinton and Carter ordered warrantless searches that were consistent with the provisions in FISA for warrantless searches/eavesdropping -- ie. that the attorney general certified that they did not involve US persons. Perfectly legal, and still perfectly legal..."
SCOTUS&FISCR HAVE RULED: If the primary target is a forign agent/power than it doesn't matter if some US person is surveilled inciodentally.
(3) you wrote: "Unfortunately, what Bush has been doing is warrantless eavesdropping of US Persons -- WHICH IS ILLEGAL UNDER FISA. "
It's NOT so black and white. if the programmatic effort is FROM overseas, and of foreign agents and IF the primary target is a non-US person then the surveillance is OKAY/LEGAL. FISCR has ruled on this. REPEAT: if NSA uses overseas listening staions them FISA doesn't apply.
Only is the primary target is a US person and if the calls are wholly within the USA does FISA necessarily come in.
FROM NRO: "... 1994, the Clinton administration argued that the president has "inherent authority" to order physical searches — including break-ins at the homes of U.S. citizens — for foreign intelligence purposes without any warrant or permission from any outside body. Even after the administration ultimately agreed with Congress's decision to place the authority to pre-approve such searches in the Foreign Intelligence Surveillance Act (FISA) court, President Clinton still maintained that he had sufficient authority to order such searches on his own.
"The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."
"It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities." [...]
In her testimony, Gorelick made clear that the president believed he had the power to order warrantless searches for the purpose of gathering intelligence, even if there was no reason to believe that the search might uncover evidence of a crime. "Intelligence is often long range, its exact targets are more difficult to identify, and its focus is less precise," Gorelick said. "Information gathering for policy making and prevention, rather than prosecution, are its primary focus."
The debate over warrantless searches came up after the case of CIA spy Aldrich Ames. Authorities had searched Ames's house without a warrant, and the Justice Department feared that Ames's lawyers would challenge the search in court. Meanwhile, Congress began discussing a measure under which the authorization for break-ins would be handled like the authorization for wiretaps, that is, by the FISA court. In her testimony, Gorelick signaled that the administration would go along a congressional decision to place such searches under the court — if, as she testified, it "does not restrict the president's ability to collect foreign intelligence necessary for the national security." In the end, Congress placed the searches under the FISA court, but the Clinton administration did not back down from its contention that the president had the authority to act when necessary.
------- end NRO excerpt.
All presdients prior to Bush have asserted this power; it is power vested by the constitution into the POTUS as CinC.
I suggest you read the Sass Sunstein article he posted at the Univ. Chicago Law School website.
all the best.
This is a long post, taken straight from a post at Volokh. It should all be in quotes (of quotes?), don't know the protocal. It helped me follow the various threads of the arguements.
Alan J. Meese
Cabell Research Professor of Law
College of William and Mary
1) By a September 14 resolution, Congress has authorized the use of "all necessary and appropriate force" against the organization that perpetrated the September 11 attacks, an organization that is still active.
2) That same resolution recognized that the "President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."
3) In implementing Congress's authorization of military operations, the President is functioning as the Commander-in-Chief of the Armed Forces. The Commander-in-Chief power is conferred by the Constitution, and not by Congress. Congress cannot strip the President of this power.
4) The Commander-in-Chief power includes the power to initiate offensive and defensive military actions against the foe designated by Congress. Such operations by necessity require the Commander-in-Chief to gather actionable intelligence.
5) Congress could not by ordinary legislation abrogate the President's Commander-in-Chief power or assign it to other actors, even judges. For instance, after declaring War against Japan in 1941, Congress could not require the President to obtain a warrant before bombing the enemy or shooting down enemy warplanes. Nor could Congress require the President to obtain a warrant before intercepting the enemy's battlefield communications, even if the battelfield was on American soil, as it was after the Japanese invaded Alaska in 1942.
6) The President does not lose his power as Commander-in-Chief if the enemy allies itself with residents of the United States. If, during WWII, residents of Alaska were sending radio signals to Japanese intelligence officers, Congress could not require the President to obtain a warrant before listening to those communications. In the same way, if a US resident with known ties to Al Qaeda is making a phone call to Mullah Omar's number in Afghanistan, Congress may not require the President to obtain a warrant before listening in.
7) In 2002, the FISA Court of Appeals itself said that the President has the inherent authority to conduct warrantless searches and that Congress could not abridge that authority. That language was dicta, however. It's my understanding that other appellate courts have reached similar conclusion, i.e., that the President possesses such inherent power as Commander-in-Chief.
8) It seems to me that those who take the contrary position must also argue that Congress may tell the President whom to appoint as head of the joint chiefs, tell the President how to evaluate his military commanders, tell the President whom to appoint to be Secretary of Commerce, tell the President he cannot veto a bill, etc. Such a position makes Congress supreme, contrary to the text and structure of the Constitution.
9) Let me close with a quote from Joseph Story about the Commander-in-Chief power.
"Of all the cases and concerns of government, the direction of war most peculiarly demands those qualities, which distinguish the exercise of power by a single hand. Unity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power."
Allowing Congress to tell the President how to conduct military operations contravenes the framers' vision of "Unity of plan, promptitude, activity, and decision."
Let me also add two things:
1. Gathering military intelligence pursuant to an authorization of force is, in my view, an exercise of the power as Commander-in-Chief and not legislative. It does not matter that the enemies are in this country, or that they happen to be American citizens. If, during the Korean War, the President suspected that an American citizen in Hawaii was sending signals to a Chinese submarine hoping to sink a departing fleet, I don't think the effort to listen in on the conversation would be "legislative." At the same time, I realize that trying to pigeonhole these things might be a spurious exercise and might be answering the wrong question.
2. Presumably the President would argue, consistent with the dicta in In re Sealed Case, 310 F.3d 717, 742 (F.I.S. Ct. of Rev. 2002) that Congress cannot, via FISA prevent him from conducting otherwise reasonable searches and thereby interfere with his powers as Commander-in-Chief. The President could argue that allowing Congress to interfere with the President's powers would contravene Article II and thus offend the Rule of Law.
Meese on the Fourth Amendment Argument:
First, the text of the Amendment merely forbids unreasonable seizures and searches. It does not purport to require warrants. Instead, it simply provides that, if an officer seeks to obtain a warrant, he must demonstrate probable cause to obtain one. Thus the amendment regulates the issuance of warrants, but it does not require them.
5) Here it's helpful to recount the history behind the warrant clause. The ordinary remedy for an unreasonable search would be a trespass action, brought before a jury in state court. (Recall that the 1789 constitution did not require the creation of lower federal courts. Plus, an action against a federal officer might not meet the diversity of citizenship test for federal jurisdiction if there were federal courts.) By limiting the availability of warrants, the clause prevented Congress from thereby immunizing federal officers from trespass actions in state court. And, a federal officer who could not obtain a warrant would then have to "take his chances" before a local jury, which would be the final word on "reasonableness."
6) What though about current law? Hasn't the Supreme Court ignored the text and said that officers "ordinarily" must obtain a warrant supported by probable cause? Not really. Take the classic seizure, an arrest for a felony. So long as an officer has probable cause, he need not obtain a warrant to arrest a felon, even if the felon is unconscious and the officer can obtain a warrant in 1 minute by telephone. Ditto for an arrest of someone who commits a misdemeanor in the presence of the officer. (As, for instance, when a police officer pulls one over for reckless driving and arrests one "on the spot," even though he could easily obtain a telephonic warrant.) In other words, the vast majority of seizures need not be supported by a warrant under current law. Indeed, some seizures may take place even without probable cause, although these must be brief, i.e., 1 hour.
Ditto for a search of the felon incident to arrest, the search of a car, the search of a container in a car, the inventory search of a car that is impounded (which may take place with no probable cause), an administrative search of certain businesses, etc. As I understand things, depending how you count, there are two dozen "exceptions" to the warrant requirement, though in fact it seems like the exceptions swallow the rule. Plus, these exceptions apply even if the police could very easily obtain a warrant, e.g., even if the car is immobilized.
7) Finally, and most pertinently, so far as I know, the Supreme Court has never held that the President, Acting as Commander-in-Chief, must obtain a warrant before intercepting communications between a US resident and an enemy with whom we are at war. In fact, the Court has expressly reserved the question.
8) But, to reiterate, the question whether the President's searches violated the 4th Amendment would be answered simply by asking if the search is reasonable, and not by applying some extra-constitutional presumption that a warrant must be involved.
To further support the AUMF argument is part of the SCOTUS ruling in Hamdi:
"The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government’s alternative position, that Congress has in fact authorized Hamdi’s detention, through the AUMF."
I think it is evident that they give certain deferential weight to what the AUMF authorized, if it authorized detention, would it not authorize specific intelligence gathering ? SCOTUS does not address the government's plenary auhtority / 'inherent powers' because they agree with the government's contention of Congressional authorization 'through the AUMF'.
SCOTUS agreed even though the law states:
"No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress" (18 U.S.C. s 4001)
The AUMF did not specifically address this law, just as it did not specifically address FISA.
You say anyone talking to Al-Qaida should expect that they're being listened to, so no eavesdropping is unreasonable. Ok, so warrants need only be issued for unreasonable searches?
Every single one of your 28 explanations is deemed reasonable because the process of obtaining and maintaining warrants can serve as a practical hindrance to law enforcement. The FISA court does not present that sort of obstacle. In fact, it specifically negates those sorts of obstacles. There was no good (reasonable) reason to bypass the courts unless Bush intended to spy on people he couldn't get warrants for. It's thus perfectable reasonable to assume that Bush was using this power inappropriately--to violate the 4th Amendment rights of people like me , by spying on us when we organized marches against the war.
I can't think of a single reason to circumvent the whistleblower act besides the fact that the whistleblower's complaint would, unambiguously, be disregarded irrespective of its merits before the law. Remember, this is the exact same administration that threatened the job of the OBM's chief actuary if he so much as TOLD CONGRESS THE ACTUAL COST OF THE MEDICARE BILL before it was voted on. Are you going to tell me it that didn't happen? Besides do you know the leaker didn't try to use the whistleblower statute? It would certainly fit the timeframe. Or perhaps this is just one of those laws--like laws against obstruction of justice--that only liberals have to follow?
Are you going to tell me this leak was treasonous and tangibly more harmful to national security than the Plame leak? Consider the following from a Republican's blog:
"It's also patently ridiculous to equate the Plame leak with this one. And forget about the disclosure of her identity for a minute. Dismantling a CIA front operation is serious business. The government can't exactly setup energy consultancies with offices in strategic countries around the world on a moment's notice. Especially ones which specialize in intercepting WMD on the black market. How many of those do you think we had before Novak sold what was left of his soul? Brewster Jennings was lost to an act of Benedict Rosenberg-magnitude treason."
How did the enemy benefit from this leak? How did this confirm what they merely suspected. It is immaterial to a terrorist whether or not FISA has approved the tap of his phone. They KNOW that we have the potential to monitor them. Again, whether or not FISA authorized the wiretap is COMPLETELY IRRELEVANT.
So, we've established that the enemy is not, in any way, shape, or form, a beneficiary of this leak. Who is? Patriotic Americans like me who only SUSPECTED Bush thought he was above the law, a fact which has now been CONFIRMED.
Ok, now that we're friends, let me level with you. You know what pisses me off most about Bush? It's not that he's too stupid to be President, but that he's a chickenshit. Only a coward would demand loyalty pledges to get into his reelection rally, only a coward surrounds himself with yes-men, only a coward with daddy problems would have played dress up on a an aircraft carrier to look tough, and only a coward would equate dissent with disloyalty.
See, Bush didn't have the balls to go to war.
Bush had a hard-on to go to war. There's a world of difference. This juvenile little-shit of a man did the Arsenio Hall fist-pump as he was about to announce the initiation of hostilities in Iraq. He took to the war with precisely the enthusiasm of a 17 year old betting on his first NBA playoffs. If this cowardly little man had been born so much as upper middle class, with his talent and ambition, he would be a nobody today. He's a joke, you guys have the worst "Dear Leader" complex this side of the DMZ.
Basically, you can't argue that the warrantless wiretaps were reasonable because they were to be expected, then turn around and argue that the enemy somehow benefitted from this disclosure of the obvious(let alone that the enemy is the "sole beneficiary" of this heroic leak). The only "disclosure" was that Bush was circumventing the courts, which doesn't harm national security or impact the enemies strategy in any way.
gabe,
i agree wqith Jane Harmon - ranking D in the House Select Intel Committee: the leaks damaged national security.
i prove why in another post. look around.
also: joe klein of TIME agrees.
thanks for commenting. come beack. you'll learn a lot!
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