The ripples over President George W. Bush’s secret go-ahead for domestic spying, and his subsequent defense of it, have morphed into a bigger wave with the announcement that a federal spy court judge has quit in protest.
The Washington Post reports:
A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush’s secret authorization of a domestic spying program, according to two sources.
U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.
Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court’s work.Robertson, who was appointed to the federal bench in Washington by President Bill Clinton in 1994 and was later selected by then-Chief Justice William H. Rehnquist to serve on the FISA court, declined to comment when reached at his office late yesterday.
Look for some defenders of the White House spying to play up the Clinton-appointee angle…and downplay the Rehnquist selection. But, as you’ll see, this is NOT a partisan controversy by a long shot:
Word of Robertson’s resignation came as two Senate Republicans joined the call for congressional investigations into the National Security Agency’s warrantless interception of telephone calls and e-mails to overseas locations by U.S. citizens suspected of links to terrorist groups. They questioned the legality of the operation and the extent to which the White House kept Congress informed.
Sens. Chuck Hagel (Neb.) and Olympia J. Snowe (Maine) echoed concerns raised by Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, who has promised hearings in the new year.
Hagel and Snowe joined Democrats Dianne Feinstein (Calif.), Carl M. Levin (Mich.) and Ron Wyden (Ore.) in calling for a joint investigation by the Senate judiciary and intelligence panels into the classified program.
The hearings would occur at the start of a midterm election year during which the prosecution of the Iraq war could figure prominently in House and Senate races.
Not all Republicans agreed with the need for hearings and backed White House assertions that the program is a vital tool in the war against al Qaeda…
What this suggests is that you’ll have the Democrats backed by some GOPers demanding hearings and some of the rear-guard GOP defenders trying to either discourage or block hearings. Three words here: Watch Bill Frist. Meanwhile, two questions: (1) Will there be any other resignations over this controversy? and (2) Are more revelations in the offing on this story?
This is merely the latest twist in a bitter high-stakes controversy that entails partisan political positioning, concern over civil liberties, questions of legality, the issue of how far government should must/should go to protect its citizens, checks and balances, Congressional oversight, press disclosure of important information, leaking…and a host of other issues.
One issue that has come up is whether the Bush administration’s actions were in fact authorized in the Democratic Carter/Clinton administration. Republicans raised this issue but it was met with a detailed rebuttal.
In addition, new questions were raised about whether U.S. calls were picked up by the program, the New York Times reports:
A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.
The officials say the National Security Agency’s interception of a small number of communications between people within the United States was apparently accidental, and was caused by technical glitches at the National Security Agency in determining whether a communication was in fact “international.”
Telecommunications experts say the issue points up troubling logistical questions about the program. At a time when communications networks are increasingly globalized, it is sometimes difficult even for the N.S.A. to determine whether someone is inside or outside the United States when making a cellphone call or sending an e-mail message. As a result, people that the security agency may think are outside the United States are actually on American soil.
The Christian Science Monitor, in a piece that should be read in full, looks into some of the legal issues:
FISA was enacted to prevent domestic surveillance abuses that occurred during earlier administrations, including the Nixon White House.
Should the debate make it into a courtroom, at issue will be whether FISA preempts the president from taking actions as commander in chief in the war on terror that ignore or violate the surveillance statute.
“The president is simply off the rails,” says Marc Rotenberg, executive director of the Electronic Privacy Information Center, which closely monitors surveillance issues. Mr. Rotenberg says Bush’s reliance on the commander-in-chief powers “is probably overly broad and will be rejected.”
David Rivkin, a Washington lawyer and former Reagan and Bush I administration official, has a different perspective. “FISA was designed to deal with essentially peacetime counterintelligence and counterterrorism operations,” he says. “We are now at war.”
He says Bush’s secret NSA operation is “tantamount to trying to break Japanese military codes or intercept German communications during World War II.” The FISA requirement of judicial oversight of secret intelligence operations would mandate a war-fighting role for judges that the Constitution does not authorize, Mr. Rivkin says. “Where is it written in the Constitution that the president is supposed to exercise his commander-in-chief power based upon what a judge says or doesn’t say?”
Meanwhile, some reports suggest GOP strategists feel this controversy could help their party by accentuating its role as being strong on national security and that the Democrats appear weak on the potent issue and will pay for it in 2006.
These concerns are echoed by centrist blogger Bull Moose who, in a post that should be read in full, writes:
We are at war with a Jihadist enemy who wants us and our families dead. It is not clear that some of our elites recognize that fact or care any more. And some on the left fear that President Bush is a greater threat to our nation’s security and liberties than the Jihadists.
If the ACLU is upset about the Patriot Act, fine, It is their job to push the outside of the envelope. But it is another thing when a Party almost unanimously obstructs its reauthorization over minor objections after significant compromises have been achieved. And it does not provide any solace that Larry Craig and John Sununu were on the Democrats’ side.
When it comes to the War Against Terror, there is no room for right wing or left wing libertarianism. Of course, we should guard our freedoms and be vigilant for excesses. But, our robust democracy is not endanger. If international phone calls by terrorist suspects were monitored, good and fine. What is in question is whether some of our elites continue to believe that we are actually at war with a devious foe. Memories of 9/11 are fading and many act as if the threat has gone away.
On the political front, in the past month, there has been a systematic effort at self-branding by the Democratic Party, and it is not good. From the defeatist Iraq talk to the obstruction on the Patriot Act, the donkey is effectively “rebranding’ and “framing” itself as weak on national security. George Lakoff should be proud! Rather than the 2006 election being about the GOP’s weak ethics, it may be about the Democrat’s anemic defense credentials.
We live in a period that is similar to the Cold War in that there is an over-riding national security threat. The fundamental political and policy question is which party will the American people trust to defend the country and their families?
Meanwhile, experts are pondering why the Bush administration didn’t simply change the law instead of circumventing it.
Another fundamental issue may become: given that we live in a dangerous era, will Congress demand to keep its centuries-old oversight role or, because it’s controlled by the party that now controls the White House, leave this issue and other matters on the war in Iraq and the war on terror to the White House? Will there be demands for greater checks and balances or a belief that checks and balances take too long in an age of terror?
UPDATE: Vice President Dick Cheney both defends the administration and calls for a strong chief executive:
“I believe in a strong, robust executive authority and I think that the world we live in demands it,” Mr Cheney said. “I would argue that the actions that we’ve taken there are totally appropriate and consistent with the constitutional authority of the president. You know, it’s not an accident that we haven’t been hit in four years,” said Mr Cheney, speaking with reporters on Air Force Two from Pakistan to Oman.
On Capitol Hill, senators from both parties said the role of Congress could not be sidelined – even in wartime.
“I think the Vice-President ought to re-read the constitution,” said Democratic senator Edward Kennedy.
SOME OTHER WEBLOG VIEWS AND RESOURCES:
—Crooks And Liars: “”Do you think he’ll be smeared as an activist judge?”
—Michelle Malkin has her usual comprehensive linkfest roundup, this time of conservative bloggers and news stories.
—AMERICAblog writes about how some GOP conservatives are unhappy with Bush’s domestic spying and adds: “Forget our base. We ought to be targeting THEIR base.”
—Kevin Drum: “This program was the result of a panicky decision by a panicky president. As with its spiritual predecessors — the Palmer raids of the 20s, the internment of Japanese-Americans during World War II, the excesses of McCarthyism in the 50s, and the FBI’s COINTELPRO program in the 60s — cooler heads will eventually conclude that it was unnecessary and maybe even counterproductive.”
—IntoxiNation: “Now we are losing FISA judges over the actions of Bush. This means Bush is destroying a key asset in the war on terror and further aiding our enemy. The longer Congress takes to act on this the worse it will get. Isn’t it ironic that this is all coming out at the same time Congress is arguing the Patriot Act? We are seeing proof that Bush likes to overstep his authority and going unchecked is a dangerous act for him. Perhaps the Patriot Act should be tabled and Congress should take this issue up immediately to get it resolved.”
—Confederate Yankee: “No wonder President Bush has been at ease the past few days. While details of Bush’s NSA Executive Order to conduct warrantless surveillance on suspected terrorist operatives remains classified, the “smoking gun” case of Presidential misconduct made by the New York Times is showing signs of falling completely apart under the weight of Constitutional law and similar national security precedents made by previous presidential administrations.”
—Talk Left: “The President has not yet publicly reacted to Judge Robertson’s resignation. He’s probably glad, since it was Judge Robertson who halted the Administration’s military tribanal proceedings at Guantanamo back in November, 2004…To me it signals that Bush and his Administration have been deceptive with the FISA Court and using it to cleanse illegally interecepted communications. The new revelations about Bush’s executive Order confirmed this and Judge Robertson’s conscience told him he just couldn’t go along with it any longer.”
—Tom Watson calls it the “Bush Embolism” and tells you why.
—The Poor Man wonders why the administration felt it had to go this route…and gives you some possibilities.
—Politics In The Zeros: “How can you taint the work of a court that meets in secret, makes decisions that can’t be overruled, and rubber-stamps government requests for surveillance? But you gotta hand it to Dubya, he’s so repulsive even CIA/NSA-types can’t stomach him any more. It’s important to understand that in this ongoing battle between the White House and the CIA/etc. that both sides are slime. The CIA/Valerie Plame’s etc. are not the Good Guys because there are no Good Guys.”
—The Heretik (a fascinating site) as usual has a lot to say including this:
Declaring the president of the United States has some Constitutional authority and some statutory authority as Condoleezza Rice did yesterday and not being able to give even one example yesterday as Condoleezza Rice did yesterday because she is not a lawyer just makes obvious how bankrupt the declarations are…SAYING SOMETHING IS SO does not make it so. We live with a president who consistently believes restating his premise proves his premise. At some point people are going to have to take George Bush seriously both for what he says and what he does. That point is now.”
—Thorn In Paw: “It seems that there are honorable people in the government. Who knew? But now we have lost his services and lesser men will do his job.”
—Peter Dao predicts that in the end Bush will weather the storm. Read his whole scenario IN FULL but here are the last few points:
9. Polls will emerge with ‘proof’ that half the public agrees that Bush should have the right to “protect Americans against terrorists.” Again, the issue will be framed to mask the true nature of the malfeasance. The media will use these polls to create a self-fulfilling loop and convince the public that it isn’t that bad after all. The president breaks the law. Life goes on.
10. The story starts blending into a long string of administration scandals, and through skillful use of scandal fatigue, Bush weathers the storm and moves on, further demoralizing his opponents and cementing the press narrative about his ‘resolve’ and toughness. Congressional hearings might revive the issue momentarily, and bloggers will hammer away at it, but the initial hype is all the Democrat leadership and the media can muster, and anyway, it’s never as juicy the second time around…
…It’s a battle of attrition that Bush and his team have mastered. Short of a major Dem initiative to alter the cycle, to throw a wrench into the system, to go after the media institutionally, this cycle will continue for the foreseeable future.
The resignation seems to speak loudly, but what does it say? The resignation letter itself gives no reason. An anonymous source offers some context. The judge may see the process that he participates in as tainted and feel that he can therefore no longer be part of it. The judge may simply object to the procedure and feel that the resignation is an effective way to express that objection. That objection may be political opposition to the President, purely legal opinion, or some mix of the two. To the extent that it is legal opinion, it may not be an opinion that most judges, handling a fully briefed and argued case, would agree with.
—Gateway Pundit writes that the judge was called “Bush hating” in news stories.
—Ruminate This:
Were it not for their own very insistence on trying to force through the Congress an unnecessarily aggressive expansion of policing powers under the USA Patriot Act that kept Congress and the Washington media in town long past the normal beginning of the Christmas recess, this could have been a story that didn’t have legs because there was nobody around to hear when this particular forest tree fell. Because of their desire to not only reauthorize but to expand upon those 16 renewable provisions, however, Congress is still around, the media is still around, and nothing in those most recent “improved” poll numbers suggests to a lot of people in either group that this crowd has regained its status as an entity to be feared….the resignation of U.S. District Judge James Robertson is just going to provide the vitamins to make those legs grow bigger and stronger…
–Oxblog’s David Adesnik asks why if the Democratic leadership had been consulted on this program they didn’t object.
http://thinkprogress.org/ 2005/ 12/ 20/ drudge-fact-check/ trackback/ –>
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.