Editore"s Note
Tilting at Windmills

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January 1, 2006

RESISTANCE AT JUSTICE ON WARRANTLESS SEARCHES....After the Bush administration's warrantless-search program came to light, one of the early talking points used to defend the program's legality emphasized Justice Department support. As Condoleezza Rice explained on Meet the Press, the initiative "has been reviewed not just by the White House counsel but by the lawyers of the Justice Department."

On its face, this wasn't exactly a persuasive defense. To hear Rice and others tell it, the warrantless spying was permissible because Harriet Miers, John Ashcroft, and Alberto Gonzales told him the president he could get away with it. But as it turns out, there's a lot more to the Justice Department's "approval" of the program than the White House talking points let on.

A top Justice Department official objected in 2004 to aspects of the National Security Agency's domestic surveillance program and refused to sign on to its continued use amid concerns about its legality and oversight, according to officials with knowledge of the tense internal debate. The concerns appear to have played a part in the temporary suspension of the secret program.

The concerns prompted two of President Bush's most senior aides - Andrew H. Card Jr., his chief of staff, and Alberto R. Gonzales, then White House counsel and now attorney general - to make an emergency visit to a Washington hospital in March 2004 to discuss the program's future and try to win the needed approval from Attorney General John Ashcroft, who was hospitalized for gallbladder surgery, the officials said.

The unusual meeting was prompted because Mr. Ashcroft's top deputy, James B. Comey, who was acting as attorney general in his absence, had indicated he was unwilling to give his approval to certifying central aspects of the program, as required under the White House procedures set up to oversee it.

When Comey balked, Card and Gonzales literally had to go to Ashcroft's sickbed to ask him to sign off on the warrantless-search program. What's more, according to the article, even Ashcroft was reluctant to go along, fearful that there was inadequate oversight and limited legal justifications for such sweeping presidential authority. So what happened? According to the New York Times, "It is unclear whether the White House ultimately persuaded Mr. Ashcroft to give his approval to the program after the meeting or moved ahead without it."

The article suggests, however, that Ashcroft may not have been convinced.

What is known is that in early 2004, about the time of the hospital visit, the White House suspended parts of the program for several months and moved ahead with more stringent requirements on the security agency on how the program was used, in part to guard against abuses.

The concerns within the Justice Department appear to have led, at least in part, to the decision to suspend and revamp the program, officials said. The Justice Department then oversaw a secret audit of the surveillance program.

What did the audit conclude? It's hard to say; the Times doesn't report on whether abuses were discovered during the review or not.

As for the story behind the story, it appears that there's something of a revolt underway at the Department of Justice. There's no way the NYT could get this story, with these details, unless several in-the-know Justice officials decided it was time to start talking.

Indeed, it may be part of a trend. DoJ officials recently leaked word, for example, that attorneys in the in the Civil Rights Division concluded that Georgia's poll-tax law was discriminatory against minority voters and should be blocked from implementation, but they were quickly overruled by Bush-appointed higher-ups. Moreover, the lead attorney in the government's landmark lawsuit against the tobacco industry recently told reporters that her politically appointed bosses undermined her team's work on the case. And earlier this month, the Washington Post reported on leaked memos showing that DoJ officials concluded, unanimously, that Tom DeLay's re-redistricting scheme in Texas violated the Voting Rights Act -- but once again they were overruled by Bush's political appointees.

When the Justice Department starts leaking like a sieve, and all the news embarrasses the White House, you know Bush has a problem.

Steve Benen 10:12 AM Permalink | Trackbacks | Comments (67)

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Comments

"John, the sooner you sign this, the sooner I take my foot off the air hose."
cf.
"Now that they're attached, we're going to start with low voltage to demonstrate our capabilities. I learned this at the
School of the Americas."

Posted by: Tirebiter in Sector R on January 1, 2006 at 10:20 AM | PERMALINK

If Ashcroft didn't sign off on it, then that would be a miracle.

Posted by: jri on January 1, 2006 at 10:24 AM | PERMALINK

Too bad responsible people at State, Justcie, Defense, and the CIA didn't start bringing these things up about 18 months ago.

Posted by: jimbo on January 1, 2006 at 11:03 AM | PERMALINK

MUST BE LOYAL TO THE PARTY...MUST BE LOYAL TO THE PARTY...repeat after me...

Posted by: Dancer on January 1, 2006 at 11:08 AM | PERMALINK

Thank god the NY Times has got our best security interests at heart.

So I wonder what the NY Times reporters do and don't know about this story? I wonder what they are holding back from us, why they chose to release the story when they did, etc.?

Yes, I trust them to choose correctly what portions of a story to report and when to report it, knowing that they will do so in...somebody's...best interest.

Hey NY Times, just give us everything. We're smart enough to handle it. Or at least as smart as you.

I'm sick of anonymous leaks and reporters metering the truth in small doses.

Posted by: Red State Mike on January 1, 2006 at 11:13 AM | PERMALINK

As Condoleezza Rice explained on Meet the Press, the initiative "has been reviewed not just by the White House counsel but by the lawyers of the Justice Department."On its face, this wasn't exactly a persuasive defense. To hear Rice and others tell it, the warrantless spying was permissible because Harriet Miers, John Ashcroft, and Alberto Gonzales told him the president he could get away with it.

What you are witnessing is the corporate officer and directors business judgment rule defense from the Model Business Corporation Act-

A director is entitled to rely on:
(2) legal counsel, public accountants, or other persons retained by the corporation as to matters involving skills or expertise the director reasonably believes are matters (i) within the particular persons professional or expert competence or (ii) as to which the particular person merits confidence.

Our MBA President- A man who has been an officer and director on many failed corporations - is bound to be intimately famaliar with that rule.

Of course, there is the pesky requirement that the Officer and Director be acting in good faith...

Posted by: molly bloom on January 1, 2006 at 11:18 AM | PERMALINK

What are the implications if Ashcroft didn't sign-off on Mr. Bush's warrantless wiretaps? What does Mr. Ashcroft have to say about this?

FYI - Excellent Article Debunking Bush

http://www.opednews.com/articles/opedne_mick_you_051231_president_or_king_3f.htm


Posted by: osage on January 1, 2006 at 11:28 AM | PERMALINK

Slightly off topic. While the NYT did not publish the wiretap/datamining story for a year, why didn't the 'anonymous source' contact another paper to get the story out sooner?

If the anonymous source was attempting to whistleblow before the election, I wonder why there wasn't a greater effort made.

Posted by: bcinaz on January 1, 2006 at 11:36 AM | PERMALINK

I find it interesting that they talked to Ashcroft in early 2004. Ashcroft recused himself from the Plame case and assigned Fitzgerald at the end of 2003, after Christmas. Was that related to his gall-bladder surgery? How do these factors interplay?

I'm starting to get the picture that for all his faults (from my perspective), he still understands what the Constitution is, and why separation of powers is important.

Posted by: Doctor Jay on January 1, 2006 at 11:36 AM | PERMALINK

You KNOW there's got to be serious illegality going on when even John "Let the Eagle Soar" Ashcroft has misgivings about signing off on something Bush desperately wants.

Putting all trolls on notice here: You will not be taken seriously until you answer the obvious question as to why Bush could not seek a warrant (FISA, which approves over 99% of all such requests, even allows the governement to seek a warrant up to 72 hours AFTER wiretapping has begun, so urgency could not possibly be the reason, because the law already allows for that possibility).

Posted by: chuck on January 1, 2006 at 11:39 AM | PERMALINK

"Day by day and almost minute by minute the past was brought up to date. In this way every prediction made by the Party could be shown by documentary evidence to have been correct; nor was any item of news, or any expression of opinion, which conflicted with the needs of the moment, ever allowed to remain on record. All history was a palimpsest, scraped clean and reinscribed exactly as often as was necessary." pg 36
1.
http://www.gerenser.com/1984/quote.html

I think we are there. Look at how the reasons for destroying Iraq have changed over the last 3 years.

Furthermore, am I now under surveillance? God forbid I should question King George's motives.

Posted by: Tom Nicholson on January 1, 2006 at 11:49 AM | PERMALINK

This presents still another piece of evidence in the case against Bush on the wiretaps.

Bush has one bare defense of his nearly indiscriminate use of wiretaps: he needed to do so to defend us against terrorist attacks. Unhappily for him, that drug loses more of its potency with each passing day.

On the other side is a vast array of opposition, including many Republican members of Congress, and it now appears, Bush's own Justice Dept.

Now, the issues here are, or at least can be made to seem, fairly complex. But there is one way the American public knows how to cut through all the complexity in a proposed action: do those in charge fall entirely along party lines when it comes to supporting or opposing it?

If the opposition to Bush's wiretaps went all the way to the very heart of his administration, the Justice Dept itself, then there's no way his "I was fighting terrorism" spin could possibly do the work here.

Democrats should push this issue for all it's worth. Inherently, it can't possibly blow back against them in the face of such clear opposition even with Republican ranks.

Posted by: frankly0 on January 1, 2006 at 11:50 AM | PERMALINK

man, for somebody who's not a lawyer, Condoleeza Rice sure knows how to parse some words. next thing you know she;ll start talking about what the meaning of "is" is.

Posted by: susan on January 1, 2006 at 11:56 AM | PERMALINK

Very few people understand the intricacies of advanced technolgies such as data mining which are essential tools that we have to use for defending the homeland.

No wonder that DOJ lawyers, who are typically english and sociology majors, had no comprehension of what the President was trying to do.

Posted by: tbrosz on January 1, 2006 at 12:05 PM | PERMALINK

That, of course, would be the "optimistic" interpretation. The other interpretation is that Bush is systematically undermining the independence and professionalism of various units in the Justice Department.

Since the fate of the Republic apparently rests for the moment on the ability of the Justice Department to conduct honest and vigorous investigations of powerful members of Congress and the Administration, I am worried, seriously worried.

Posted by: Bruce Wilder on January 1, 2006 at 12:06 PM | PERMALINK

Who was harmed?

Posted by: Walter E. Wallis on January 1, 2006 at 12:08 PM | PERMALINK

While the WH has announced that it will investigate the security leak involved in the NY Times exposure of the illegal wiretaps, isn't it pretty obvious that that investigation will never come to fruition?

How plausible is it that the WH really wants the whistleblowers here to be provided with so much public visibility that they would be able to present their own side of the story -- and indeed would be practically obliged to do so to frame their own legal defense most effectively, asserting that their acts were in the clear public interest? Could the Bush WH possibly want this public debate?

The "investigation" is simply a sham, intentionally, I'm sure, going nowhere. It's entire point is to pretend that some dreadful damage has been done to national security when in fact nothing of consequence, except politically, has taken place.

Posted by: frankly0 on January 1, 2006 at 12:11 PM | PERMALINK

I have a feeling that what Dems should be doing with the "investigation" into the NY Times leak is encouraging it, not discouraging it -- let them find out who is involved, and let them indict them, and see where that really goes politically.

Of course, the investigation will NEVER be allowed to come to a head. And then the Bush WH should be asked: so why'd you drop the case, if it involved such a huge breach of national security?

Posted by: frankly0 on January 1, 2006 at 12:23 PM | PERMALINK

I was too disgusted to read the articles, but have they announced an attorney to be in charge of the snoopgate leak investigation? Crony, loyalist, or typical DOJ employee?

Posted by: B on January 1, 2006 at 12:43 PM | PERMALINK

Dems to Republicans: We double dare you to complete the probe into the NYTimes leak.

The people running the WH are such idiots. They know exactly one tactic, attack your opponents. The idea that sometimes this might be counterproductive is beyond their synaptic capacity.

Posted by: frankly0 on January 1, 2006 at 12:43 PM | PERMALINK

Who was harmed?

Posted by: Walter E. Wallis on January 1, 2006 at 12:08 PM | PERMALINK

The ideal -- once revered by Republicans, because it was convenient for them to pretend to believe in it -- that no man is above the law.

Posted by: Califlander on January 1, 2006 at 12:45 PM | PERMALINK


Very few people understand the intricacies of advanced technolgies such as data mining which are essential tools that we have to use for defending the homeland.

No wonder that DOJ lawyers, who are typically english and sociology majors, had no comprehension of what the President was trying to do.

I understand it, plenty. What do you want to know about it? Your intimations of its importance aren't indications of anything.

We didn't need warrantless searches or data mining to have prevented 9/11: all we needed was someone wise enough to have taken the all-too-evident warnings seriously. What abrogation of our rights will give us that?

Posted by: Jeffrey Davis on January 1, 2006 at 12:52 PM | PERMALINK

And if the leaker turns out to be a Democrat, what possible downside for the party actually exists? That he/she let the issue sit for a year, as 'bcinaz' states? Especially since all avenues for legitimate dissent was blocked..?

If so, they must have known what an obstacle they were up against.

Posted by: wishIwuz2 on January 1, 2006 at 12:54 PM | PERMALINK

Who was harmed?

Me. I don't want to live in an authoritarian state. Do you?

Posted by: Jeffrey Davis on January 1, 2006 at 12:55 PM | PERMALINK

"Who was harmed"

Guess you were not fighting in Korea to uphold our Constitution and democracy. Go back to your Cognac and dreams of The French Battalion deserting you, Wally.

Posted by: thethirdPaul on January 1, 2006 at 1:03 PM | PERMALINK

tbrosz: No wonder that DOJ lawyers, who are typically english and sociology majors, had no comprehension of what the President was trying to do.

Let's assume that is true. What should be the next step taken by the President of the United States?

Posted by: justmy2@hotmail.com on January 1, 2006 at 1:07 PM | PERMALINK

test...

Posted by: justmy2 on January 1, 2006 at 1:10 PM | PERMALINK

Then, on Saturday, December 17, in his radio broadcast, Bush admitted that the New York Times was correct - and thus conceded he had committed an impeachable offense.
>>>In sum, this is big-time, Big Brother electronic surveillance.
http://writ.news.findlaw.com/dean/20051230.html

So the real crime is the leaker? Folks, we have lost our democracy, the checks and balances so carefully crafted in Philadelphia all those long years ago lie in ruins.

Posted by: Tom Nicholson on January 1, 2006 at 1:24 PM | PERMALINK

Let's assume that is true. What should be the next step taken by the President of the United States?

Um...resignation?

Posted by: Davis X. Machina on January 1, 2006 at 1:26 PM | PERMALINK

"Who was harmed (by the NSA spying)?"


Me.

So long as another American is not free from this abuse then I also know none of us is free from Bush.

Posted by: MarkH on January 1, 2006 at 1:44 PM | PERMALINK

"Who was harmed?"

Well, I think that there are two ways to answer that: first - how would we ever know, since we'll be told that everything they've done has saved lives, whether they prove it or not (most likely the latter); second - on any level beyond the mere metaphoric we are, were and are being harmed. We either believe what the Constitution and our elected leaders say, or we are no different from those we profess to oppose. That should seem pretty obvious.

Posted by: horatio on January 1, 2006 at 1:44 PM | PERMALINK

Two NYTimes bits I enjoyed also:

In Lichtblau's and Risen's article about Comey's doubts, they reveal (catch me if I'm wrong here) that Ashcroft who was allegedly in the hospital with gall bladder problems (painful for not terribly serious) and then it turns out he was in there with pancreatitis (one of the outcomes of heavy drinking and quite dangerous). Did I read that right? New Year's morning blurry eyes?

Oh, and the Times "public editor"(=ombuttkisser) actually went after Keller and Sulzberger, gloves off. The Times seems dissatisfied with the deep hole it dug itself during Plame-Miller -- it has to sharpen the shovels and dig deeper.

Posted by: PW on January 1, 2006 at 1:49 PM | PERMALINK

Oh, and an article in the WaPo today reveals NSA didn't keep the fruits of its domestic eavesdropping to itself. No, it spread the goodies around to other entities, including the Pentagon.

Posted by: PW on January 1, 2006 at 1:52 PM | PERMALINK
In Lichtblau's and Risen's article about Comey's doubts, they reveal (catch me if I'm wrong here) that Ashcroft who was allegedly in the hospital with gall bladder problems (painful for not terribly serious) and then it turns out he was in there with pancreatitis (one of the outcomes of heavy drinking and quite dangerous). Did I read that right? New Year's morning blurry eyes?
Gallbladder problems can cause pancreatis. What happens is gallstones form, then drift into the pancreas. Sometimes removal of the gallbladder is the only possible fix.

I should know -- my father had his gallbladder removed a few years ago after several bouts of pancreatis. He has never been a "heavy drinker".

Pancreatis is debilitating -- very painful and requires hospitalization. The gallbladder operation itself is fairly trivial (it can be done orthoscopically in most cases, with minimal incisions) but as with any such surgery, the patient is on a narcotic for a few days.

Given Ashcroft was almost certainly under the influence of medication at that point -- hydrocodone or heavier -- I'm not sure whether his wavier is any damn good. In fact, if I understand the procedure right, it isn't. He turned over authority until his hospital stay was over, preciesly because he couldn't make rational and informed decisions for the duration of his hospital stay and recovery.

It'd an interesting legal question -- could Ashcroft actually authorize this before Comey handed back the authority?

Posted by: Morat on January 1, 2006 at 1:54 PM | PERMALINK

Putting all trolls on notice here: You will not be taken seriously until you answer the obvious question as to why Bush could not seek a warrant (FISA, which approves over 99% of all such requests, even allows the governement to seek a warrant up to 72 hours AFTER wiretapping has begun, so urgency could not possibly be the reason, because the law already allows for that possibility).

That's already been batted around. A warrant requires probable cause, while it sounds like (only the NY times knows) the NSA was trolling by listening to huge torrents of data and then data mining to lead them to targets of interest.

And since no leads coming from this trolling could be used as evidence for a FISA warrant, they get stuck in an infinite loop of non-warranted observing.

Posted by: Red State Mike on January 1, 2006 at 2:02 PM | PERMALINK

...you know Bush has a problem.

I don't see the coming year as a good year for Bush despite his "hope". Bush had bad 2005 and he'll have worse 2006.

What with Patrick Fitzgerald still breathing down Bush and Dick Cheney's law breaking little necks over Karl Rove's lies and more Republican breaking ranks - Lets hope 2006 see Bush in to impeachment. Something that maggot has had coming since day one of this court appointed, worthless, taxpayer looting appointment so office.

Posted by: Cheryl on January 1, 2006 at 2:02 PM | PERMALINK

You KNOW there's got to be serious illegality going on when even John "Let the Eagle Soar" Ashcroft has misgivings about signing off on something Bush desperately wants.

Amen, brother, amen.

Posted by: JohnN on January 1, 2006 at 2:28 PM | PERMALINK

this emphasizes the direction that dems should be taking: the issue at hand has nothing to do with national security. It has to do with presidential lawlessness. Keep hammering that point, because it is the eseential vulnerability of the program: a man in panic - george bush - aware that he had ignored the 8/6/01 PDB, was bound and determined never to slip up that badly again (while, of course, his political team took care of covering up his failure and obscuring it when it came to light), and so he was willing to do anything.

and the real constitutional crisis here is this: short of either a supreme court judgement (and first we need someone with standing to get a case there) or impeachment (which, of course, isn't going to happen), there is nothing that can stop him from continuing to do it, and he has every intention of keeping this up.

he's proud of it.

it's the perfect bush moment in its own way: breaking the law is fine because he's a good man and he would enver break the law for a bad reason because all he's doing is upholding his job to protect the american people.

so it's not merely a matter of what have they been doing: it's that they intend to keep doing it.

so dems need to keep pointing out that every day this program continues, they are breaking the law.

and dems should be perfectly willing to say, if this is a good program, we'll get on board with ammending the law to allow it, but first, you have to show us this is a good program, constitutional and useful.

Posted by: howard on January 1, 2006 at 2:38 PM | PERMALINK

Who was harmed?

The bartender who has to refill your glass six times before 11 a.m. while listening to your bombastic saber-rattling, and never gets a tip.

Posted by: shortstop on January 1, 2006 at 2:38 PM | PERMALINK

Oh the lengths the Dems will go to
to put a cloud in peoples' eyes.

Why would a President, who has a compliant Congress, servile judiciary, and a submissive and fawning press have any need to get more power? Isn't his explanation that he just wanted to save us all from Islamists enough?

Posted by: tbrosz on January 1, 2006 at 2:42 PM | PERMALINK

Who was harmed?

Besides the US Constitution and the Rule of Law? We don't know. Because they haven't told us who was spied on without a warrant.

Gotta lay off the sauce Walter.

Posted by: Charlie's Auntie on January 1, 2006 at 2:47 PM | PERMALINK

"Stop waving the Constitution in my face..it's only a ^*&$%$& piece of paper."

God bless George. Didn't he swear to uphold this beautiful document?
http://www.usconstitution.net/gifs/docs/cpage1.jpg

Posted by: Tom Nicholson on January 1, 2006 at 2:51 PM | PERMALINK

Just one question to the breatbeaters here.

Apart from the abstract notions of damage to some equally quaint ideas of civil liberties, how has the NSA program that you are so hysterically ranting against affected you personally?

Posted by: neocon on January 1, 2006 at 2:53 PM | PERMALINK

You're damn straight, neocon. People make such a big whooping deal out of stuff that doesn't even affect them. This is like crying about, say, racial profiling or detention without counsel. Hell, I'm not a person of color, and I've never even BEEN to Cuba.

Posted by: shortstop on January 1, 2006 at 3:02 PM | PERMALINK

tbrosz: No wonder that DOJ lawyers, who are typically english and sociology majors, had no comprehension of what the President was trying to do

More likely that those DOJ lawyers comprehended all too well what he was trying to do and to whom! It will be interesting to see who got there e-mail's read and phone conversations transcribed.
But, fear not he will never be impeached. The Presidential line of succession after him is even more terrifying.

Posted by: aline on January 1, 2006 at 3:09 PM | PERMALINK

Apart from the abstract notions of damage to some equally quaint ideas of civil liberties, how has the NSA program that you are so hysterically ranting against affected you personally?

My God, what an intelligent, urbane argument! Truly, we are in the presence of a dizzying intellect. Cut right through that pretentious liberal posing with one well-placed, understated thrust quaint, really sums it up doesn't it. I salute you. You have converted me. I'm trading in my Prius for an Escalade, buying an automatic weapon, and making Michelle Malkin my homepage. Thank you so much.

shortstop - Happy New Year.

Posted by: LW Phil on January 1, 2006 at 3:15 PM | PERMALINK

Why does James Comey hate America?

Posted by: Pat on January 1, 2006 at 3:27 PM | PERMALINK

"Putting all trolls on notice here: You will not be taken seriously until you answer the obvious question as to why Bush could not seek a warrant (FISA, which approves over 99% of all such requests,"

This is demonstrably not true. The Times even bragged about how many were denied last year.

" even allows the governement (sic) to seek a warrant up to 72 hours AFTER wiretapping has begun, so urgency could not possibly be the reason, because the law already allows for that possibility)."

The answer is that the mechanism for getting FISA warrents is a bureaucracy DOJ has been reluctant to push the envelope such as in the Moussawi case. The volume of calls and the response time required (similar to the short window the crooks have before a stolen credit card is reported) make this impractical.

I originally agreed with you about retrospective warrants but they apparently ran into some ass coverers and got turned down. The president has clearly got the power as long as it only concerns calls with one participant overseas.

The technology has also outstripped the FISA mechanism. Also, it is useful to recall that FISA was another Congressional attempt, like the War Powers Act, to intrude on the president's war powers. Even Carter thought so.

This debate is a loser for Democrats, just like the Murtha debacle. Keep slugging away though.

Posted by: Mike K on January 1, 2006 at 3:32 PM | PERMALINK

Apart from the abstract notions of damage to some equally quaint ideas of civil liberties, how has the NSA program that you are so hysterically ranting against affected you personally?

If someone in the NSA or the Bush WH starts to use top secret, completely unmonitored wiretaps to keep tabs on, say, peace protesters, or, I don't know, gay activists, or other and assorted political enemies, how exactly do you expect ANYONE to know for sure that that's what's going on?

Sometimes you guys should just listen to yourselves.

Posted by: frankly0 on January 1, 2006 at 3:39 PM | PERMALINK

Apart from the abstract notions of damage to some equally quaint ideas of civil liberties, how has the NSA program that you are so hysterically ranting against affected you personally?

Just to follow up here a bit.

Look, if the President just decides that he's going to put out wiretaps on people and there are NO outside parties monitoring those wiretaps, and guaranteeing that only the "right sort" of people are being wiretapped, then we only have the President's word that he isn't wiretapping just any old person who suits his fancy, right?

And who is our President? A lying, petulant, whiny jerkface who loves nothing more than lashing out at his enemies in whatever way he can.

Oh yeah, he's the guy we all ought to trust when it comes to unmonitored wiretaps. That nasty little dick.

Posted by: frankly0 on January 1, 2006 at 3:46 PM | PERMALINK

frankly0 on January 1, 2006 at 11:50 AM:

Bush has one bare defense of his nearly indiscriminate use of wiretaps: he needed to do so to defend us against terrorist attacks.

Not even that; In an October 2004 speech, he stated:

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.

Yeah, I've posted that quote and link before...In light of this, it appears that Dubya was aware of the legal issues involved in spying on US citizens...Either he (1) intentionally ignored the Constitutional issues or (2) received questionable counsel regarding the Constitutional issues.

If things get hairy(er) for Bush on this issue, does anyone think that the spin will move towards (2)? If so, who falls on their sword for Dubya?

Posted by: grape_crush on January 1, 2006 at 3:54 PM | PERMALINK

The answer is that the mechanism for getting FISA warrents is a bureaucracy DOJ has been reluctant to push the envelope such as in the Moussawi case. The volume of calls and the response time required (similar to the short window the crooks have before a stolen credit card is reported) make this impractical...

Blah, blah, blah.

Why don't you come to terms here with a few small facts, Mike?

How about the fact that this illegal monitoring has been going on for four long years now, plenty of time for Bush to get the rest of the nation, or at the very minimum all of Congress, on board with the idea of using such a vast program?

If it's so important as you imagine, why wouldn't Bush have a slam dunk case here?

You want to pretend that Bush was acting in an emergency, and had to circumvent the law. Four fucking years is NOT an emergency, OK? It's an unconscionable and deliberate avoidance of the law, of the Constitution, and of any public scrutiny of his decisions and actions.

He thinks he's the King, accountable to no one.

Posted by: frankly0 on January 1, 2006 at 3:56 PM | PERMALINK

if so, who falls on their sword for Dubya?

Harriet to the rescue!!!

Happy New Year grape

Posted by: LW Phil on January 1, 2006 at 4:07 PM | PERMALINK

THe irony here is that, on the one hand, people like Mike are claiming that the Dems will be hurting themselves if they oppose Bush's use of these kind of wiretaps, but, on the other hand, it would have been just wrong for Bush to go to the public and the Congress over the last four years and make the case for such wiretaps.

They really can't keep their argument straight here, because, as usual, it's just incoherent concocted junk.

Posted by: frankly0 on January 1, 2006 at 4:08 PM | PERMALINK

Mike K on January 1, 2006 at 3:32 PM:

The Times even bragged about how many were denied last year.

So the FISA court was doing its job...What's your point?

The answer is that the mechanism for getting FISA warrents is a bureaucracy.

Seeing as how a warrant can be issued up to 72 hours after the event it is being issued for, it appears that your concern about bureaucray is...unwarranted.

DOJ has been reluctant to push the envelope such as in the Moussawi case.

Would it be because they understand that the rule of law should not be bypassed because it is inconvenient...or even necessary?

The volume of calls and the response time required make this impractical.

Are you sure that this is what the NSA was doing?

The president has clearly got the power as long as it only concerns calls with one participant overseas.

Um, no. There's a pretty big question about what the President's implied emergency powers entail...I'll even go so far to say that any 'emergency' that may have existed has been over for a while, now. As for 'war', Dubya announced 'Mission Accomplished' how long ago?

The technology has also outstripped the FISA mechanism.

Who leaked the specifics of the 'technology' to you, MikeK? Do you have any sort of clearance?

Also, it is useful to recall that FISA was another Congressional attempt, like the War Powers Act, to intrude on the president's war powers.

FISA was created because Nixon was wiretapping peace activists and political opponents. The War Powers Resolution (common mistake) was passed into law to define the conditions under which US armed forces can be deployed with/without a Congressional declaration of war.

Though it passed over Nixon's veto, the War Powers Resolution has been largely ignored.

Even Carter thought so.

"B-B-but the Democrats thought so too!" Standard rightie response...You can do better than that, can't you?

This debate is a loser for Democrats, just like the Murtha debacle. Keep slugging away though.

And you keep on dreaming away, though.

Posted by: grape_crush on January 1, 2006 at 4:55 PM | PERMALINK

LW Phil on January 1, 2006 at 4:07 PM:

Harriet to the rescue!!!

I was thinking more along the lines of "Gonzales Makes a Speedy Exit" or "Dubya's Card is Trumped."

Happy New Year grape

Happy New Year to you, LWPhil, and to everyone else...

EVEN PATTON.

(Now I gotta go stir the blackeye peas and ham)

Posted by: grape_crush on January 1, 2006 at 5:03 PM | PERMALINK

Thanks for the medical update, Morat!

Somewhere else today I read that Ashcroft during this period was questioned by Congress about NSA and FISA and testified that they'd never gone around FISA which, the writer proposed, is perjury.

Lots of speculation, few hard answers, and an administration which is trying to douse the fire by blaming the whistle blowers.

Posted by: PW on January 1, 2006 at 5:50 PM | PERMALINK

DOJ has been reluctant to push the envelope such as in the Moussawi case?

I saw Victoria Toensing make the same argument on C-Span and you know who demolished it. Judge Andrew Napolitano on FOX of all people. He stated the failure to get a warrant to open that briefcase was a failure of the judgement of the beauracracy not a failure of the law. I find it ironic that a Justice Department that isn't too shy to advocate holding Americans for years without trial, without contact with lawyers, that has supported coercive techniques many see as torture, is suddenly a shrinking violet on going to Court and getting a warrant. Go Figure.

Posted by: aline on January 1, 2006 at 6:04 PM | PERMALINK

However, one talking point seems to have legs, and we need to deal with it: intercepting communications going across our borders may have different legal status than just what would be done internally. This point was discussed on Sully's site and gave him pause. It can't just be dismissed, can it? What did FISA say about cross-border intercepts in particular? What do you all think?

Posted by: Neil' on January 1, 2006 at 6:08 PM | PERMALINK

LW Phil: shortstop - Happy New Year.

Same to you, Phil. I couldn't even bring myself to seriously address that idiot. (Although I suspect he's just a parody...even after years of evidence to the contrary, I cannot believe anyone could be that barbarically shortsighted.)

Happy new year to all. grape, good on you for making Hoppin' John. Got a pot of it boiling myself, with a side of mustard greens. Mmmmmm.

Posted by: shortstop on January 1, 2006 at 7:20 PM | PERMALINK

Neil', my overall answer is that even the perps don't think they have clear legal standing: all you have to do is see their convoluted arguments to see straw-clutching in its finest form.

the question remains what it has been from the start: american citizens have the right to certain expectations of privacy. This right has been enshrined in FISA. Until and unless FISA is changed, there are certain kinds of things the executive can't do, like have shift supervisors approve warrantless wiretaps that involve american citizens.

Posted by: howard on January 1, 2006 at 7:57 PM | PERMALINK

shortstop on January 1, 2006 at 7:20 PM:

good on you for making Hoppin' John.

Nah; no chili powder or rice in my blackeyes. I do have my own slightly special recipe, though, like any good southerner...

Posted by: grape_crush on January 1, 2006 at 8:20 PM | PERMALINK

Chili powder? No, no, no! Lots of garlic, onion, bell peppers and andouille. We agree on the concept, though. Good luck all year long to you and yours.

Posted by: shortstop on January 1, 2006 at 10:12 PM | PERMALINK

Wasn't Comey the one who appointed Patrick FitzGerald?

And hasn't Comey now left the Justice Dept.? I wonder if he was forced out; sounds like he didn't score high enough on the "loyalty" test.

Posted by: Nancy Irving on January 1, 2006 at 10:16 PM | PERMALINK

bcinaz asks:

Slightly off topic. While the NYT did not publish the wiretap/datamining story for a year, why didn't the 'anonymous source' contact another paper to get the story out sooner?
If the anonymous source was attempting to whistleblow before the election, I wonder why there wasn't a greater effort made.

I would say that any anonymous source who takes the risk of leaking a story this big to the NY Times would take a very powerful message from the fact that the Times did not publish. If you were the leaker, and you knew the Times was sitting on that big of a story, wouldn't you be concerned about how exposed you were. If The Times is friendly enough with the Administration to hold off publication, maybe other papers are as well? And if they're that friendly, might a friendly word get back to the Admin that the leak was occuring, and from whom?

I just keep replaying in my mind the final scene from "Three Days of the Condor" when disillusioned CIA researcher Redford tells his boss "They have the story," and the sinking feeling you get when his boss says "Yes, but will they print it." You know the fix is in, and Redford has become a very lonely man.

Posted by: GGordonL on January 1, 2006 at 10:32 PM | PERMALINK

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Posted by: 成都机票查询 on January 2, 2006 at 1:58 AM | PERMALINK

Howard wrote this: this emphasizes the direction that dems should be taking: the issue at hand has nothing to do with national security. It has to do with presidential lawlessness. Keep hammering that point, because it is the eseential vulnerability of the program: a man in panic - george bush - aware that he had ignored the 8/6/01 PDB, was bound and determined never to slip up that badly again (while, of course, his political team took care of covering up his failure and obscuring it when it came to light), and so he was willing to do anything.

I bet that the Democrats will tack this direction for a while, until they see that they will fall farther behind, and then they'll tack a different direction. "Keep hammering that point" isn't something that they are capable of. Their only success in 2005 came from their "Just say 'no'" response on SS reform. In their current disarray, the Democrats probably couldn't take advantage of convictions of all Republican Congressmen of bribe-taking in the Abramoff scandals.

Posted by: contentious on January 2, 2006 at 2:41 PM | PERMALINK




 

 

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