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Posted by on Dec 31, 2005 in At TMV | 24 comments

Justice Department Investigates NSA Spying Leak

The Justice Department has opened an investigation into who leaked what is being billed as highly classified information about a top-secret National Security Agency program that President George W. Bush used to do warrantless domestic spying.

Brace yourself now for a slew of issues and recriminations to swirl around this issue such as:

  • The specific legality or lack of it to do the wiretaps. What do the laws specifically say? What was implied and in what law and what do experts say about that?
  • Comparisons between the administration’s energy and attitude in going after this leaker versus the Plamegate case and the administration’s attitude towards that — and whether drawing comparisons is apples and oranges or involves the same fundamental issue.
  • Growing concerns over whether prosecutors will again threaten some journalists with jail if they don’t cooperate in this probe, how news outlet top management will respond to legal threats, and the impact of all of this on use of this info in the future.
  • Partisans digging in their heels to also take the position their party bigwigs take.
  • Americans who are genuinely concerned by the conflict between the need for top-notch national security with the need to protect at all costs cherished civil liberties. The not-so-nice bottom line question not usually voiced in public is: are we in a new era where the risk of the government NOT pulling out all stops to keep tabs on terrorists constantly re-evaluating their own ways to get info out and kill should outweigh protections designed in less brutally perilous times? Or given the polarizing, partisan nature of a political-base-oriented Bush administration that has credibility problems is that too big a risk?
  • A push for Congressional hearings on this whole issue and the administration’s policy, particularly if the government is aggressively seeking to find who gave the info to the press.

The New York Times reports:

The investigation apparently began in recent days following a formal referral from the agency regarding the leak, federal officials said on condition of anonymity.

The program, whose existence was revealed in an article in The New York Times on Dec. 16, has provoked sharp criticism from civil liberties groups, some members of Congress and some former intelligence officials who believe it circumvents the law governing national security eavesdropping.

President Bush and Attorney General Alberto R. Gonzales have vigorously defended the program as a legal, critical defense against terrorism that has helped prevent attacks in the United States. They say the president’s executive order authorizing the program is constitutional as part of his powers as commander in chief and under the resolution passed by Congress days after the Sept. 11, 2001, attacks authorizing the use of force against terrorists.

Trent Duffy, a White House spokesman, told reporters in Crawford, Tex., where the president is on vacation, that Mr. Bush did not request the investigation.

“The leaking of classified information is a serious issue,” Mr. Duffy said. “The fact is that Al Qaeda’s playbook is not printed on Page One, and when America’s is, it has serious ramifications.”

Remember that reports indicate GWB warned the Times that he felt publishing this material would hurt national security. The paper clearly concluded differently. The AP adds this:

“It’s pretty stunning that, rather than focus on whether the president broke his oath of office and broke federal law, they are going after the whistleblowers,” said Anthony D. Romero, executive director of the American Civil Liberties Union.

Romero said a special prosecutor from outside the Justice Department needs to be appointed. “This confirms many of the fears about Gonzales’ appointment — that he would not be sufficiently independent from the president and that he would play the role of a crony,” he said.

Indeed: Attorney General Alberto Gonzales has already made it clear that he’s defending the administration on this issue. If he’s the one in charge of the problem there will be charges that it’s politically motivated and perhaps even triggered by Presidential ire. If Gonzales is running the show, expect this issue to be argued along partisan lines. MORE:

Duke University law professor Scott Silliman agreed that the Justice Department is taking the wrong approach.

“Somebody in the government has enough concern about this program that they are talking to reporters,” Silliman said. “I don’t think that is something the Justice Department should try to prosecute.”

Douglas Kmiec, a Pepperdine University law professor, said the Justice probe is the next logical step because the NSA is alleging a violation of a law that prohibits disclosure of classified information.

“The Department of Justice has the general obligation to investigate suspected violations of the law,” Kmiec said. “It would be extraordinary for the department not to take up this matter.”

And so you have it: the quintessential tug-of-war between the whistleblower (whose career and future freedom may be constrained) and the idea that if something is going on in the government that is seemingly illegal or wrong someone needs to speak out so the public knows about it. The former is legality; the latter a question about what to do about what is perceived by the whistleblower as a legal moral issue. MORE:

The NSA probe likely will result in a repeat of last summer’s events in Washington, where reporters were subpoenaed to testify about who in the administration told them about Plame’s work at the CIA. New York Times reporter Judith Miller spent 85 days in jail for refusing to reveal her sources.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the Plame investigation was about “political gamesmanship.” But, she said, the NSA leak probe is frightening.

“In this case, there is no question that the public needed to know what the New York Times reported,” she said. “It’s much more of a classic whistleblower situation. The public needs to know when the government is engaged in things that may well be unconstitutional.”

One reason why the government’s decision is likely to spark more political turmoil is the administration’s contention that this is what it must do to protect the United States and that there will be no apologies or compromise about that. The Los Angeles Times:

Today, as it has in the past, the NSA refused to comment on whether it has asked for such an investigation. It also has not confirmed whether it continues to conduct surveillance on U.S.-based persons without a warrant, even after President Bush confirmed that he had authorized the secretive agency to do so….

….In a letter to Congress last week, the administration said the nation’s security outweighs privacy concerns from those who were monitored.

But top-ranking senators from both parties have been preparing questions for administration officials at upcoming hearings on the controversy. Some questions aim to pin down the administration on the issue of wholesale versus individual surveillance, according to congressional staffers.

Yes, indeed. Between this investigation and the issues it raises and the Jose Padilla case now before the Supreme Court and the issues it raises one thing seems clear: one way or another, the United States at the end of 2006 could be significantly different than it is today. Big issues. Big decisions. Big consequences..


–Glenn Reynolds, aka InstaPundit: “My guess is that the New York Times editors are going to wish they hadn’t called so loudly for an investigation of the Plame affair.”

Mark Kleiman:

One blogger — I’d be grateful for a pointer to a link — made another point I’d like to hear more of. The ability to spy on domestic conversations is obviously abusable. And we already know that Tom DeLay tricked the Department of Homeland Security into tracking the whereabouts of Texas Democratic legislators who had fled to Oklahoma to try to block a quorum for DeLay’s redistricting scheme. And we know that DeLay got away with it. So if the question on the table is “Will the Republicans abuse domestic-security powers for political purposes?” we know that the answer is “Yes.”

Ed Morrissey:

The pattern of leaks clearly shows that members of the intelligence community want to fight a war — but rather than fight a war against the terrorists that killed thousands of Americans and want to kill millions more, they’ve chosen to fight one against the elected civilian government of the US. For some strange reason, those who claim to love civil liberties have decided to take the side of the unelected bureaucrats in this Coup Of The Thousand Leaks. When partisan hatred meets with professional egotism, the resulting bedfellows turn strange indeed. The Justice Department needs to put an end to this wholesale dismantling of the national defenses that have kept the US safe from attack for the past four years, and do it quickly.

Americablog: “Frauds. Because leaking damaging information during wartime is such an anathema to the Bush Administration.”

Gateway Pundit: “After numerous media leaks jeopardizing national security operations in the past several months, it’s about time!”

Taylor Marsh: “Our petulant president is finally getting an investigation he believes in….So, operation “I can to eavesdrop!” is in full swing, led by Terror Guy’s chief tricky Dick-like dirty tricks lawyer, Alberto “let them drown by waterboarding” Gonzales. Because our president will not be denied his due, which he believes is to snoop wherever, whenever and into whatever he wants. Ah, it’s good to be king.”

Michelle Malkin has (as usual) a great series of news and weblog links and gives her own blunt assessment. Here’s a small part of it:

1) Won’t be long before we start hearing the Bush-haters at the Times and elsewhere moaning about how this probe is a waste of time/distraction from the important business of Congress/politically motivated(!).

2) Look for the Plamegate apologists to argue that the NSA leaks were “good” leaks, justified in the name of safeguarding civil liberties and the national interest, and should therefore be exempt from criminal prosecution.

By contrast, they argue that disclosures about Valerie Plame were “bad” leaks worthy of pulling out all prosecutorial stops–though no one has been charged with leaking classified info, and even if they did, the adverse effects on national security are infinitesimal compared to the damage done by the NYT/NSA leaks.

The Carpetbagger Report: “Inevitably, the right’s talking points will tell us that the administration’s critics are hypocrites. We wanted the Justice Department to probe the Plame leak, they’ll say, but not the “snoopgate” leak. But if Bush’s political allies can’t see the difference between exposing official wrongdoing and exposing a CIA agent to help cover up bogus pre-war claims, there’s just no hope for them.”

The Talent Show:

I know you guys will do everything in your power to ensure that news doesn’t hurt Junior’s feelings, but after reading five or six articles on this and seeing the coverage by CNN, I can’t help but think that you’re collectively avoiding the use of the word “whistleblower”.

Which is odd since it’s obvious to everyone that the President’s domestic spying program is illegal. That’s not the opinion of some pissed off blogger either. It’s a demonstrable fact that it’s a crime for the President to order wiretaps without judicial oversight. Pointing this out isn’t petty partisan politics, it’s keeping the public informed…

Sister Toldjah: “Good. I hope they find out who leaked this. Whether Dem or Republican, the person(s) responsible must be held accountable for a leak that *truly* has the potential of damaging our national security (unlike Lamega .. er, Plamegate).”

For Dee: “So the Justice Department finds a leak by one of their own on a top secret matter – and they investigate. Which leads me to a question: When should we expect Karl Rove to be fired?…This is a smoke screen to take pressure off the President for authorizing a program that is against the law. This White House gets nothing done. It deflects, spins, and changes the subject as much as possible. When are they going to have a press conference and say, “Hey – this is what we did. We accomplished something?”

Blogs For Bush: “This begs the question: Why does the radical left oppose fighting the war on terror?”

Drinking Liberally: “How stinking charming is it that the WH now denounces leakers??? Is Abu Gonzales leading the way, all of a sudden?”

Right Wing Nut House:

Will the career prosecutors and investigators at the Department of Justice dig into this investigation and carry it out with the sustained vigor and intensity it deserves? Or will they simply go through the motions and tiptoe around the press as they normally do, fearing the anger of the editorial boards of the New York Times and Washington Post?..I am frankly not very hopeful that much will come of this investigation. The DOJ has never been very aggressive in the area of national security leaks to the press, seeing it as a First Amendment issue rather than a national security one. And unless some kind of link can be found in some of the leaks, I doubt whether a Special Prosecutor could be appointed.

Digby: “I assume this also means that nobody from the White House will be able to comment in any way since there is an ongoing investigation. And that means no matter what comes up, Scotty is required to stonewall. Even when he doesn’t want to. Thems the rules.”


I’m glad that it’s happening so quickly. However, we all can imagine the political firestorm that will be a by-product of this investigation, especially with the 2006 elections upcoming. No doubt there will be much political posturing on this matter from both sides of the aisle .

Another factor that may fill all of us with dread: the subpoenas of New York Times editors and reporters to whom the information was leaked. Without a doubt, some or all members of this group will be willing to go to jail rather than give up their sources. Certainly, this would be cast as a noble act of journalistic martyrdom. However, an even nobler act would be for those who leaked the program’s specifics to come forward and save these editors and reporters the trouble.

A Rose By Any Other Name:

It’s about darn time! There should be someone charged with treason in these last two “leaks” of information. The “black” prisons and the NSA “listening in” are both national security issues. If the ACLU and the liberal MSM have their way, they will have all the details of these programs on the front page of the papers and then we can expect the terrorists to take full advantage of it. We are at war. It is necessary for some things to remain undisclosed for the safety of all of us. Why is this such a difficult concept for so many on the left to realize?

Seedrum Musings looks at this issue using a piece written by former Nixon administration member John Dean. A key quote:

Bush, says Dean, “may have outdone Nixon: Nixon’s illegal surveillance was limited; Bush’s, it is developing, may be extraordinarily broad in scope. First reports indicated that NSA was only monitoring foreign calls, originating either in the USA or abroad, and that no more than 500 calls were being covered at any given time. But later reports have suggested that NSA is ‘data mining’ literally millions of calls�and has been given access by the telecommunications companies to ‘switching’ stations through which foreign communications traffic flows. In sum, this is big-time, Big Brother electronic surveillance.” As for Bush’s criminal investigation into the leak, Dean says, “Such a criminal investigation is rather ironic�for the leak’s effect was to reveal Bush’s own offense. Having been ferreted out as a criminal, Bush now will try to ferret out the leakers who revealed him.”

–Crooks And Liars gives you a VIDEO of a recent Dean interview on the warrantless wiretaps and how he views it in legal and historical terms.

Powerline: “Great news. This makes two; the leaked story about secret detention facilities in Europe is also under investigation. I doubt that anything short of the sight of bureaucrats doing jail time will slow down the torrent of illegal leaks from the federal agencies, so let’s get on with it.”

The Heretik has its usual stylish and content-heavy excellent take. A small segment: “Where some have a night vision that sees power’s shadowy hand pulling us further into the darkness, others see a treasonous leak that deserves death punishment in the light of day. Some sacrifices must be made. Liberty and Security. You are either with us or against us. Give me liberty or give me death. Literature and history are filled with the Theme of the Traitor and the Theme of the Dagger’s Blade.”

Running Scared also has a long analysis that needs to be read in full. A few key excerpts:

I’d have thought it would have been fairly difficult for most of the prominent conservative bloggers to step up to they keyboard and get very excited about this….The trouble with this is that these are the very same bloggers who were calling the Plamegate leak investigation a “waste of time” and saying that it was “no big deal” and people should just “get over it?” It may be hard to justify those two approaches when they are put to a side by side comparison…

Personally, I feel that this investigation had to take place and needs to move forward. As far as I’m concerned, the jury is still out on whether or not the President had the right to order warrantless domestic eavesdropping. Some fair cases have been made on both sides and that will have to be decided in the courts. But we’ll need to ask ourselves when such leaks from inside the government are true “whistleblower” cases… But if the program turns out to be fully legal and constitutional, then that person would need to face consequences just as in the Plame case.

–The Mighty Middle’s Michael Reynolds does not mince words so you need to read his entire post. A tiny taste 4 U:

This is not about national security. This is not about keeping our country safe. It is about the deliberate sabotage of the rule of law and the assertion of effectively unlimited presidential power…I have no problem with wiretapping to protect national security…. But I have a very big problem with an executive branch that asserts unlimited powers. We have a system of laws. We have a system of checks and balances. The president is attacking that system of laws, attacking that system of checks and balances, attacking the foundations of our democracy.

The people who act as apologists for this presidential power grab are one with the Americans who tacitly accepted the red-scare Palmer raids after WW1, the interning of Japanese Americans in WW2, the blacklists of the 1950’s and the criminal activities of Richard Nixon during Viet Nam.

A Stitch In Haste’s attorney Kip Esquire writes:

Meanwhile, it’s important to remember that the law making it a crime to leak sensitive information to the media applies to the government source, and not to the New York Times, which is protected by the First Amendment generally and the so-called “Pentagon Papers” case specifically…

We are not talking here about disloyal subversives who disclose classified information to aid the enemy (e.g., outing an undercover agent) or for mere financial reward (e.g., selling secrets to foreign powers). This leaker was, as far as we know, a patriotic American trying to expose, for our own sakes, a dubious government program.

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  • So the DoJ is investigating who the whistleblower was in revealing Bush’s illegal actions.


    I always thought there were laws that protected whistleblowers who tell on officials break the law.

    Bush broke the law (4th Amendment) and instead of punishing him we are going to punish the person who did their civic duty and revealed this to the public?

    Someone is going to be punished for being patriotic and letting the public know?

    Wow, well I think it’s time to start taking bets on when we will become a fascist nation. Because really, it is no longer a question of if now, only a matter when.

  • *on officials who

  • Elrod

    Wow, Republicans really are off the deep end here. I think the real story here is that Bush fears impeachment and so he is pulling out all the stops in going on the attack. He can’t play defense. His robotic supporters are the same. They’ve offered no coherent defense of the legality of the NSA wiretaps so they charge those who exposed these illegal wiretaps as traitors. The irony is that this investigation, though not unexpected, will only keep the story in the news longer. BTW, remember all those Bushbots who thought Fitzgerald was going to indict Joe Wilson, or that the Plame investigation would blow back on the Democrats? Turns out, of course, that the indictment of a powerful, but previously unknown VP aide, seriously hurt Bush’s political standing in late October.

    Here’s another thing to consider. The leak was made in 2004. Bush knew about it since then. So why didn’t the Justice Department investigate it earlier? Surely the Justice Department could have investigated this without releasing more information to the press. It seems Bush has launched this investigation only because he was politically damaged by it, not because national security was placed in jeopardy.

  • AustinRoth

    What I find interesting is that those that attack investigating a obviously damaging leak have already determined, beyond any shadow of a doubt, that the eavsdropping was illegal (even impeachable!). Even though it has been going on since the 70’s, but suddenly now it is wrong because Bush is doing to stop terrorist attacks.

    I am opposed to any such wiretapping, and think the 4th ammendment has been violated repeatedly by every President since FDR, with the courts being eqaully guilty for allowing it. Don’t even get me started on drunk driving checkpoints and drug testing.

    And given the ruling over the years that we have no right of privecy over even our own bodies, and the obvious compelling national interest, I would be shocked if the courts didn’t ultimatly rule in favor of their constitutionality.

    However, if we are willing to accept those two earlier examples as being necessary for the the common good, how is this worse?

  • AustinRoth

    Oh, wait, I answered my own question earlier in my own post.


    Hang the Cowboy President from the nearest tree. Impeachment is too good for that varmit.

  • Hey AustinRoth, you already have your jackboots on I see.

    Nice to know that so-called “Americans” don’t give two shits when the President thinks he is a dictator because we are “in a time of war”.

    Don’t give me that shit “well FDR did it” and then say you are against the wiretapping.

    You’re a Bush apologist is all.

  • AustinRoth

    I am opposed to it, but that doesn’t mean it isn’t effective, or a fact of life, just one of many I disagree with but accept.

    As for you rsnarky Jackboots comment, it just goes to my previous posting that liberals, as a whole and with exeptions, can only resort to name-calling with those who disagree.

    My main point from the first point is that the question of legality and constitutionalty is very much indecided. Just go to the Volokh Conspiracy and read Orin Kerr’s outstanding analysis from 12/29 at 4:58 PM (against it being constitutional, BTW), and the almost 300 comments at this time, many or most by legal scholars discussing both points of view.

    And mainly with reasonable tones, logic, precendence and analysis to back up their views.

    As I said, the legality question is very open, and does anyone, other than reflexive Bush-haters, truly think that ANY President would authorize and publically admit to such a program if the vast, overwhelming legal analysis was solely on the side of un-Constitutionality?

  • Read the 4th Amendment sometime. Some of us respect the Bill of Rights–even in wartime.

    P.S. I’m not a liberal

  • Pyst

    Regardless of what other presidents supposedly did this before, Bush admitted to it, with a microphone in his face at a press conference. Like holy friggen hell!! The guy admits openly, and with that famous smirk that he has broken the law, and violated his oath to uphold the constitution and the right wing doesn’t give a shit. Infact these traitors defend his actions. I do not ever want to hear law and order Republicans used as a term ever again, because it’s a lie of the highest order and they know it. In the words of a great american, patriot, and founding father, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety”. The right only brings up the founding fathers for broad generalizations in which they normally bastardize, and misinterpret them badly. Such as religion, and now they even misinterpret them on of all things FREEDOM! Well Bush should lose his freedom over this misinterpretation. One last Franklin quote for the right wing….”Necessity never made a good bargain”. That’s to debunk the right wing excuse for wiretapping american dessenters, and peace groups NOT foreign terrorists.

  • A good collection of the swirling views. Thanks.

  • AustinRoth

    So Pyst, if eventually the Supreme Court rules the wiretap actions Constitutional, as I think they will, will you then hold him up as a paragon of the protection of Constitutional liberties? Of course not. You hate him, and everything about him, and no facts will get in the way of your opinion.

    That is fine and good, but it is an opinion that he broke the law, not a fact. That is a determination yet to come.

    For most of us, our own opinions do mean more than whatever any court says, anyway. As I implied in my earlier post, I think drunk driving checkpoints, random drug tests, drug-sniffing dogs used during traffic stops, etc., are all violations of the 4th ammendment, Supreme Court rulings be damned.

    And polls already show the majority of Americans support the wiretapping, as they do my other three examples, so our choices are to accept; become a revolutionary or radical; rant and vent uselessly; or emmigrate.

    I choose option 1. And peversely, this time I think I actually agree with it.

    Finally, this is not giving up liberty, in the Franklin sense. It is giving up privacy, but that has been long gone.

  • And polls already show the majority of Americans support the wiretapping,

    No they do not!

    Every single poll conducted asks if it is ok Bush approves domestic spying.

    Well shit, of course people think that is okay. I even think that is ok.

    Not one single poll I have seen mentions the warrantless part. The are missing the central issue. The issue is that Bush wants to completely disregard the 4th Amendment (something that your other examples do not do–you can make the case that they infringe on it but not completely ignore it).

    And this is most certainly giving up liberty. They only way warrantless searches will be legal is if a Constitutional Amendment is passed in order to override the Fourth Amendment.

    That is the only way.

  • Elrod

    While I agree with you on the Fourth Amendment in re DUI checkpoints and the other examples you cite, you are missing the significance of this NSA case. It’s about Bush violating the FISA law, not Bush violating the Fourth Amendment. I think Orin Kerr was exactly right. Bush can make a case that he’s not violating the Fourth Amendment (which the Courts have virtually neutered over the last 20 years anyway) but he cannot wiggle out of the FISA law. That’s what people are up in arms about. Why didn’t Bush obtain warrants – even after the fact – when the law required it? No other President has been accused of actually conducting warrantless electronic searches since FISA. Other Presidents have sought to change the law, certainly, but none have openly violated it. That’s why Bush’s case is different. Assuming Bush has actually conducted warrantless searches then he is in violation of the FISA law. I’m not sure what’s so outrageous about making that claim. I’d say the same thing if Clinton did it too.

  • what

    Where do I start hmmm… oh yes the torture memo, well said Alberto. Oops almost forgot the enemy combatants (gitmo) idea was great too. Here is a real good one, the abuse of prisoners, nice. A+ for the black prison idea Rummey. And now we have the spying on citizens, priceless! Folks this isn’t about hating Bush I don’t care if Abe Lincoln was the fucking president, I would still ask what the fuck is happening to our country. Look at what we are trying to justify! All because of national security. And now we are going after a whistleblowers because they violated national security over a program that is illeagal? What? We are all part of the HUMAN race, do you get it? For a president who claims to be born again, when does the golden rule come into play? Only with rich white people? What about turn the other cheek? More and more our actions are like the enemys actions, when do we become the enemy? Whats next presidential sponsered beheadings, in the name on national security.

  • AustinRoth

    Elrod – the central question (the one that ultimatly needs to be decided) is if FISA itself is constitutional. There are areguments in both directions (Orin says yes, others say no).

    Ever since these types of laws have started to be passed by Congress in the wake of Watergate and Vietnam, there has been little prediliction by either side to get definitive rulings on what, if any, limits Congress can place on the Executive branch over these types of issues, and the constitutionality of the underlying laws enacted. If nothing else, it will be good to get some of this resolved.

    My belief is that, however rationally you want to argue as Orin did, SCOTUS will rule in favor of the Executive branch. I feel that way due to the many rulings (drug tests, etc.) that seemed like open-and-shut 4th ammendment violations that were upheld. So why should we expect a different result this time, especially given that the Supreme Court is even more conservative and defferential to the Executive branch than what existed when those rulings were rendered?

    These current wiretapping actions also have a very strong argument for being upheld by national security needs, and being authorized by Congress by various Gulf War II actions.

    SCOTUS has traditionally allowed wide lattitude. So, putting aside what good libertarians think SHOULD be the result, what gives you serious pause that they actually would support Congress on this?

    As a kicker, if they did it would also almost certainly open the door to impeachment hearings, and it would be foolish to think that wouldn’t enter into their deliberations.

  • Thanks for the work here, Joe. Linked you. More on this at the new Heretik site: Theme of the Dagger’s Blade

  • Elrod

    If the Administration wanted to challenge the constitutionality of FISA then it should have taken the matter up in court instead of secretly violating it. Remember, as Orin Kerr pointed out, FISA was a response to several ambiguous Supreme Court rulings on wiretaps in the 1960s, not just a result of Nixon’s wiretapping of political enemies. The Supreme Court actually requested that Congress clarify the proper procedures for electronic surveillance in national security matters. This isn’t a case where the Executive branch tried to do something with respect to surveillance, Congress was silent on the matter, and the Court had to weigh between 4th Amendment rights in the abstract and Executive power. Most cases where the Court decides in the Executive’s favor are those where Congress was silent on the matter, not cases where Congress took a different position than the Executive. Overturning a law of Congress requires a much higher burden of constitutional test than a simple 4th Amendment case in the abstract. This is a case where the Court remanded the issue to the Congress, which responded with FISA.

    It’s worth noting that the Supreme Court appoints the FISA members – the FISA judge who just resigned was appointed by William Rehnquist. So, other than Charles Krauthammer and a few advocates of the imperial presidency, I don’t see any serious challenge to the constitutionality of FISA. In fact, the Bush Administration has never explicitly questioned the constitutionality of FISA. The argument of the Bush Administration is that FISA was too restrictive, not that it was unconstitutional. Bush attempted to say the AUMF superceded FISA, but none of the Senators present during the deliberations in the fall of 2001 agree (if original intent is the guide, AUMF clearly doesn’t supercede FISA).

  • alan

    The issue is serious enough to require investigation. Rumors from the LA Times and other places that this involved electronic screening of mesages, perhaps huge numbers are disturbing.

    If the issue were simply the monitoring of individuals without warrants then it’s disclosure would not constitute a threat to national security. The terrorists know that listening can start as soon as an officer percieves a danger and their is 72 hours to get a judge to sign off.

    If you are being watched and are truly suspicious there is no functional difference.

    So a threat to national security implies a program that does involve something like what the rumors claim. I have little doubt most terrorists assume this and use pgp and anon remailers so I’m not sure that much has changed here.

    Personally I am amzed that so many Bush defenders have no clear idea of what they are defending. It could be unexcusable.

    I can say a number of libertarians will shift their votes deciding the dems are the least evil party.

  • alan

    A number of people have criticized Congress, but according to Ms. Spaulding’s Wapo editorial

    As a former legal counsel for both Republican and Democratic leaders of the House and Senate intelligence committees, I’m well aware of the limitations of these “gang of eight” sessions. They are provided only to the leadership of the House and Senate and of the intelligence committees, with no staff present. The eight are prohibited from saying anything about the briefing to anyone, including other intelligence panel members. The leaders for whom I worked never discussed the content of these briefings with me.

    It is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response.

    It seems that the small number of individuals who were told were prohibited by law from revealing anything. So people like “bull Moose” are attacking them for not being able to singlehandedly run an investigation on highly classified material.

  • “There are differences between felons and whistleblowers, and we ought to wait ’til the investigation occurs to decide what happened”

    Sen. Charles Schumer

    Well said, Senator.

  • JonAinLA

    I see many references to the fourth amendment to the Constitution as a rationale for forbidding this wiretapping program. However, I don’t see any references to the second amendment which gives powers to the President as the Commander-in-Chief. It is the latter that Bush has publicly stated as the basis of his authority. If Congress can direct the Commander-in-Chief on how to procedurally prosecute a war, the traditional separation of powers seems to be trashed. If so, then can we expect Presidential Executive Orders on how the Senate must structure their procedural rules (eg, mandatory votes on judicial appointments, etc) and to the House of Representatives on how many Subcommittees they may have?

  • If anyone is interested, I’ve done a little work on this topic, as well. The latest post is here. Previous posts on the subject are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.

  • I don’t see any references to the second amendment which gives powers to the President as the Commander-in-Chief.

    Wow, you are a fucking moron.

    I suggest you actually read the second amendment. Jesus christ, how can people be this stupid and own a computer?

  • dogfightone

    hey Senator Schumer……….How can this leaker be described as a whistleblower. He (or She) appearently gave this info to the reporter more than a year ago. If the leaker was so concerned about getting a wrong corrected, why didn’t that person take other action when they realzed that more than a year had gone by and nothing was being done. You know—do something unheard of—-LIKE GOING THRU THE WHISTLEBLOWER PROCEDURE. THEIR JOB WOULD BE PROTECTED, THEIR LIVEHOOD WOULD NOT BE IN JEAPORDY, AND THEY WOULDN’T BE FACING JAIL TIME. And for you, Mr. Risen—-how did you dream up the idea that the balance of power between the legislative and executive branch is to keep foreign policy in the center. THE PRESIDENT SETS FOREIGN POLICY -YOU MINI-MICRO-MORON.

    TITLE: NSA leak probe. An embarassing time for conservative bloggers?
    BLOG NAME: Running Scared
    Investigations into NSA leak begin

    It’s now been announced that

    TITLE: Megalomaniac – 3
    BLOG NAME: The Mighty Middle

    Joe Gandelman has an exhaustive round-up on the state of play in the domestic spying controversy. I haven’t read or heard anything yet to change my opinion that this all could have been done legally and that the president deliberately chose to do it il

    TITLE: Should the Warrantless Wiretap Leaker Have Immunity?
    BLOG NAME: A Stitch in Haste
    “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative governm…

    TITLE: What Comes Around, Goes Around
    Between the revelation of Valerie Plame’s identity in the Novak column and the recent indictments, a lot of the media was privately and openly wondering whether the investigation wasn’t a mistake. The worry was that prosecution of leaks would slam…

    TITLE: Connecting Dots Alarms The Washington Post
    BLOG NAME: Captain’s Quarters
    In the second non-scandal today, the Washington Post runs a Walter Pincus revelation that the NSA intercerpts from Bush’s program have been shared with law-enforcement agencies and other intelligence services in order to track people deemed threatening to the security…

    TITLE: First Roundup of ‘06
    BLOG NAME: The Anchoress
    Overheard in NY:
    Toddler boy: Look, Daddy! The airport!
    Dad: That’s the moon, Milo.
    –86th & 3rd
    The moon is where I feel like I’ve been! If I ever tell me kids they can have all their friends over, and that everyone can sleep …

    TITLE: Plans
    BLOG NAME: protein wisdom
    I'm going to take it easy today -- play with the kid, watch a few Bowl games -- but in the meantime, allow me to point you to Glenn Greenwald (and co.'s) latest, which charges me with being a mindless Bushbot ("the wingnut's wingnut" who "hates the first amendment," according to his commenters) because I simply will not see the light and just admit, as Chuck Hagel, William Safire, et al, have already admitted -- that Bush broke the law, trampled…

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