18 January 2006

The President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable

I really was stunned to hear a radio talk host defend the practice of illegal wiretapping based on the notion that the U.S. has not been attacked in the same fashion that occurred on 9/11/01. Pushing aside, for a moment, distressing concerns of accountability — without public record of who/what was being tracked, secret electronic eavesdropping serves as a powerful device to tarnish agents of political opposition, curtail any criticism of unjust executive branch actions, stifle whisteblowers and wickedly twists justice to suit purely partisan goals — I find the sentiment that safety should nullify constitutional freedoms extremely troublesome.

It would be akin to arguing for a complete ban of any firearms, as the statistics are clear that in nations where such stricter gun control is in effect, the homicide rate is significantly lower than in the U.S.. Along the same line, supporting a comprehensive implementation of an all inclusive Orwellian style surveillence program to ensure nobody would ever be subjected to violent assaults wouldn't require much of a logical leap. We do possess the technology to accomplish such a program, even if it would be an expensive implementation. Now, I am not arguing for either of these proposals, and in fact, abhor the sacrifice of freedom for the sake of safety.

Regarding the Bush adminstration's usurpation of the Constitution, here are some thoughts from a real conservative and reaction to a recent speech by Al Gore on the matter.

The New York Times ownership suppressed for one year the leaked information in the paper's possession that the Bush administration was violating the Foreign Intelligence Services Act and was spying on Americans without court warrants. Had the New York Times not placed a gag in its reporter's mouth and suppressed the story, Bush may have gone down in defeat as the new Richard M. Nixon. Clearly, the New York Times is failing the obligations of a free press.

Bush is angry at the New York Times and at the government officials who leaked the story that Bush illegally spied on American citizens. Both may be prosecuted for making Bush's illegal behavior public. By ignoring Gore's speech, is the New York Times signaling to Bush that the newspaper is willing to be a lap dog in exchange for not being prosecuted?

With the US media now highly concentrated in a few corporate hands, has the Democratic Party reached the conclusion that opposition is no longer possible?

Once Bush places Sam Alito on the Supreme Court, he will have a high court majority friendly to his claims that his executive powers are not constrained by congressional statutes or judicial rulings. Once a president is held to be above the law, whether for reasons of his role as commander-in-chief or any other, he can no longer be held accountable.

Conservatives should fear this more than anyone. The separation of powers and our civil liberties are our most precious property rights. They are our patrimony from the Founding Fathers. We are stewards of these rights, which we hold in trust for our descendants. How can any conservative fail to realize that Bush's attack on these rights is the ultimate attack on property? It is astonishing to watch conservatives wave the flag while they are transformed into subjects to be dealt with as presidential authority decides.

Nothing is going to be done done about it by Congress, because, we are now in the grip of a one party state, where allegiance to an imperial presidency is a bigger priority than adhering to the supreme law of the land.

It's also alluded in neoconservative circles all about the New York Times liberal bent, but yet the Times sat on this story for over a year, and as Mr. Roberts noted, did not devote any coverage to a challenging speech from a presidential candidate with the most votes in the 2000 election (and also the candidate, if a full recount would have been conducted, that would have tallied the most votes in Florida too).


Well, the lefties have their scripts hardened for this one with their talk of a GWB dictatorship, the Constitution in shreds, unbounded power grabs, illegal wiretaps, etc. All predictable. However, ol' Bob is struggling with this one. My position is they better not be tapping my phone and emails but if they monitor an overseas phone call based on a well intentioned belief valuable intelligence can be obtained that prevents bad shit then OK. I believe, for what its worth, GWBs primary motivation is the safety of Americans because 9/11 happened on his watch. It doesn't mean I'm not concerned about the surveillence but the posting is overboard. Although there's a lot about this we don't know, may never know, and may not want to know, I'm certain there's more info coming. PS Any Presidential candidate that can't carry his own state should shut up permanently. And, no less than the NYT did recount the Florida vote but didn't get the result they wanted.
Wrong, Bob. The fact is, a full recount in Florida 2000 would have given election to Gore (yes, I realize that Gore did not request a full recount, only a partial recount that may or may not have put him ahead, depending on the standard applied).


Bottom line is, in either tally:

1. More people in the U.S. voted for Gore.

2. More people in Flordia voted for Gore, even if just a partial recount was conducted, if "common sense" was allowed to prevail and "overvotes" where it was plainly obvious Gore was the voter selection OR under a full recount where Gore would have prevailed.

One must read further into the story than the headlines…
I don't want to re-hash the 2000 election. But, again, I'll contend anybody can find a website they believe proves their opinion. The site you reference has an article stating Americans are stupid. Right. I still think presidential candidates who can't carry their own State should get a job at some drive-up window and shut the hell up. Also, if the NSA is reading this, I apologize for the word hell.
In the beginning, I decided to join the campaign to impeach your "smirking chimp", my "dum'ass botch". As evidence for that, you'll soon be invited to click on a hyperlink.

Before doing so, however, I would like you to read through the rest of this text. In case, you'd like to know, the U.R.L for your blog, specifically, AZplace, is found at the third hyperlink on the list below ... ah, please remember, no clicking until AFTER reading the entire text.

Perusing your blog, I believe I arrived at what is a reasonable inference. That is, both you and your readers would welcome news that indicates the campaign to impeach the president is increasing in both vigor and breadth. Ah, you'll find that evidence by clicking on the second enclosed hyperlink.

As for my plan for capturing Osama, you'll find it by clicking on the first listed hyperlink:




.he who is known as sefton
Bob Azvote wrote:

The site you reference has an article stating Americans are stupid.

And your claiming they are not? LOL
The 80% in the middle are NOT stupid. The 10% on both fringes?
LOL. You are funny and witty.

I just think of the statistic that 43% of Americans have not read a book in the last year.
-- According to the National Endowment for the Arts on the 2002 US Census Bureau statistics http://www.usatoday.com/new...

More American teenagers can name three of the Three Stooges than can name the three branches of government (59% to 41%)
-- http://www.constitutioncent...'Poll.shtml

Democracy or dominion?

When the American public pays little attention to political affairs, it pays the price. The question today is the same as it has been earlier in U.S. history--how great a price?

THE AUTHORS OF A HIGHLY REGARDED TEXTBOOK, American Public Opinion, include an aggregate analysis of more than 2,000 "pop quizzes" surveying American political knowledge since the 1930s. Only 13 percent of the adult public could answer correctly at least 75 percent of such questions. And only 41 percent got at least 50 percent right. Despite an enormous increase in the average American's level of schooling over the same period, the authors conclude that "Americans are no better informed about political matters than they were 50 years ago." (1)

Ignorance about U.S. foreign policy and the world is even more shocking. Forty percent of respondents in one poll believed Israel to be an Arab nation. (2) When asked what percent of the U.S. budget was spent on foreign aid, the median response was "20 percent." The actual amount is less than 1 percent. (3)

More: http://bailey83221.livejour...
I lived in the former USSR for over 2 years. I think the level of ignorance on many subjects was slightly less, but comparable to Americans.

In my opinon, the difference between Ukrainians and Americans is that Ukrainians today don't have the arogance or feirce nationalism is characteristic of Americans.

From what I understand, during the USSR as Soviets Ukrainians were fiercly nationalistic, but I don't know if they were ever as arrogant as Americans. They definatly do not have either of these characteristics today...
Grammar corrections...

I lived in the former USSR for over 2 years. I think the level of ignorance of Ukrainians on many subjects is slightly less, but comparable to Americans.

In my opinon, the difference between Ukrainians and Americans is that Ukrainians today don't have the (1) arogance or (2) fierce nationalism characteristic of Americans.

From what I understand, during the USSR, Soviet Ukrainians were fiercly nationalistic, but I don't know if they were ever as arrogant as Americans.

They definatly do not have either of these characteristics today...
Quoting Homer Simpson - "Statistics are misleading - 64.85% of all Americans know that". I should clarify my statment regarding Americans are not stupid. I do not believe mere memorization of data implies wisdom or superior intelligence. I meant Americans are not stupid because they generally do the right thing: take care of their families, improve themselves, take some enjoyment in life occassionally, etc combined with a healthy amount of distrust for all levels of government, the media, and left wing and right wing screamers. Americans arrogant? Yes with some justification. Never in the history of the world has any country done so much in return for so little. Now, as for your arrogance, you seem to imply if Americans were more like you they would not be stupid. I find that stupid.
LOL--I won't be baited...
Here is an interesting take from a highly regarded UC law professor Cass Sunstein. This is an interview conducted by Hugh Hewitt.

University of Chicago Professor Cass Sunstein on the NSA intelligence kerfuffle.

HH: Yesterday, you heard me talking with my friend John Eastman, my colleague at Chapman Law School, and Erwin Chemerinsky, my longtime friend, one from the right, one from the left. And we were all agreeing that my guest, Cass Sunstein, is one of the go-to guys when it comes to Con law in the United States, and it's my pleasure to welcome Professor Sunstein to the Hugh Hewitt Show. Professor, great to have you on. Thanks for making the time.

CS: Thank you so much. It's my pleasure.

HH: Now, just a little bio here. You graduated from Harvard College in '75, and Harvard Law School in '78. Do you know Bob Rosenthal? He was my proctor as a freshman at Harvard.

CS: I don't know that name.

HH: I thought he was the managing editor of the law review the year that you were on it. But nevertheless, we'll come back to that.

CS: Big place.

HH: Now Professor, you're the author of the Con law textbook that many of us use in the classroom. You've written a great deal about this. Is it fair to describe you as a man of the left?

CS: I don't think so. On some issues yes, but I don't consider myself that.

HH: How about a liberal?

CS: That's fine.

HH: Okay. A liberal. That's how I usually call liberals, so we get them on the ideological spectrum. But nevertheless, you wrote a post which I have linked to at Hughhewitt.com, called Presidential Wiretapping: Disaggregating the Issues, which I think is very useful, and I'd like to walk through it. First, did the authorization for the use of military force from 2001 authorize the president's action with regards to conducting surveillance on foreign powers, including al Qaeda, in contact with their agents in America, Professor?

CS: Well, probably. If the Congress authorizes the president to use force, a pretty natural incident of that is to engage in surveillance. So if there's on the battlefield some communication between Taliban and al Qaeda, the president can monitor that. If al Qaeda calls the United States, the president can probably monitor that, too, as part of waging against al Qaeda.

HH: Very good. Part two of your analysis...If...whether or not the AUMF does, does the Constitution give the president inherent authority to do what he did?

CS: That's less clear, but there's a very strong argument the president does have that authority. All the lower courts that have investigated the issue have so said. So as part of the president's power as executive, there's a strong argument that he can monitor conversations from overseas, especially if they're al Qaeda communications in the aftermath of 9/11. So what I guess I do is put the two arguments together. It's a little technical, but I think pretty important, which is that since the president has a plausible claim that he has inherent authority to do this, that is to monitor communications from threats outside our borders, we should be pretty willing to interpret a Congressional authorization to use force in a way that conforms to the president's possible Constitutional authority. So that is if you put the Constitutional authority together with the statutory authorization, the president's on pretty good ground.

HH: And then I want to jump out of your analysis for a moment, and go to the steel seizure case, and to Justice Jackson's concurrance, because a lot of the analysis is saying the president is acting contrary to Congressional intent, citing some FISA sections, which I think are wrongly read. But nevertheless, if you read the AUMF the way you do, and the Constitution the way it is plausibly read, that would put us in the highest zone of presidential authority, under Justice Jackson's three-part analysis, wouldn't it?

CS: That's right. And just as in the Hamdi case, it's easy to remember the Court said that that was specific authorization to detain our enemies, so too a natural incident of war is the power to engage in surveillance of our enemies. So it would be odd, I think, to understand the authorization not to include the power to engage in surveillance, when al Qaeda is communicating with people who are unfriendly to us.


HH: Now if...would your analysis change if the Congress reconvened, and then passed a specific law saying we did not mean that. Would that...this is for the non-lawyers in our audience...would that in any way affect his inherent Constitutional authority?

CS: No. And then we'd have a huge question, which is whether Congress has the Constitutional power to negate the president's authority to monitor communications from our enemies. And that would be a big and unresolved Constitutional question. It would be unfortunate if the Congress of the United States stopped the president from doing something which Congress already probably is best understood to have allowed the president to do in the authorization to use force.

HH: Now let's move over to the Supreme Court. On Sunday, I posted at my blog, United States V. United States District Court of Eastern Michigan, also known as the Keith Case, because I believe it affirmatively shows that the Supreme Court has not contradicted the president's power here. Do you agree with that analysis?

CS: Yes. That's clearly right. What that Court says is that for domestic surveillance that don't involve foreigners or foreign threats, the president needs a warrant. But now we're onto the last question, which is whether there's a Fourth Amendment requirement of a warrant. And the Supreme Court has never said that in circumstances like this. The lower court seemed to suggest otherwise.

HH: That's why I wanted to come back and do your middle one in the middle, because now we've got the Constitutional issues out on the table. There are some arguments the other way. I want to be fair to people who are arguing, because they haven't been really fair to the president's position. You could make arguments the other way. But by no means does the...in my opinion, do they have remotely as strong a case as the advocates for the Constitutionality of what the president has done. Do you agree with that assessment, Professor?

CS: Well, what I'd say is that the Department of Justice is the president's lawyer, and they have a duty, the lawyers there, to protect the president's Constitutional prerogatives. I actually worked there myself around the same time that Chief Justice Roberts was in the Justice Department, and that's the Department of Justice's job to protect Constitutional prerogatives of the president. But in this case, it's not as if the Department of Justice is stretching badly to protect the president. It's not as in the what I think is the unfortunate torture memo, where the Justice Department really was stretching. Here the Department of Justice is making more than plausible arguments. If you put me to it, is the president right on this? It's very complicated. I think he has...he probably has the better argument. As you say, there are complexities.

HH: What year were you in the OLC, Office of Legal Counsel?

CS: In '81, under Carter and Reagan.

HH: Okay, so you actually had to deal with the use of force issue, surrounding the operation that went badly in the Iranian desert. Were you there at the time?

CS: I was there during some of the legal discussion. That's correct.

HH: You see, that's what I thought. And that would give you a very different view. I came into Justice as a special assistant to Smith doing the FISA work afterwards, and it gives me a different perspective on this. Now let's get to FISA. This is the hardest nut to crack, because we don't know the facts. And why are the facts important here?

CS: Well, if the president is just restricted to al Qaeda, and al Qaeda's friends, then he's on very firm ground under the authorization. If, on the other hand, the president has been engaging in wiretapping of people whose connection to al Qaeda is very uncertain and indirect, then the authorization is less helpful for him.

HH: But the Foreign Intelligence Surveillance Act itself, I often hear...today, Lanny Davis, another one, said the president could have just gone to the FISA court. Why didn't he? And Vicki Toensing and others have been trying to explain they have a probable cause requirement, and they have some other technicalities associated with that process that make it cumbersome. Do you find...

CS: I think there are a couple of things going on there. It's not the most cumbersome thing in the world, but it is something that the president, when national security is on the line, isn't excited about having to go through a procedure where it's conceivable he's going to lose...unlikely, but conceivable. There's another point in the background, really, which if you were there, you know, which is that the president believes here that these are very sensitive Constitutional prerogatives. And this isn't a Republican or Democratic thing. This is something that cuts across political affiliations of the president. And so the notion that in a case as sensitive as this one, he is under a legal responsibility to go through something that may be more time consuming than appears, may be more leaky than appears. Even if he doesn't think it's likely to be leaky, that's something that a president is not likely to think is necessary.

HH: So if we assume, and I do, that FISA is Constitutional, if it puts into place an arguably exclusive means of obtaining warrants for surveillance of al Qaeda and their agents in the United States, does the president's avoidance of that necessarily make him a law breaker? Or does it make the FISA ineffective insofar as it would attempt to restrict the president's power?

CS: Yeah. I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11.


HH: Professor Sunstein, have you ever been contacted by mainstream media about this controversy?

CS: A lot. Yeah.

HH: And have you spent a lot of time trying to walk the reporters through the basics?

CS: Yes.

HH: Who's contacted you, for example? The New York Times?

CS: Well, I wouldn't want to name specific ones. It's a little bit of confidentiality there, but some well known ones. Let's just say that.

HH: Let me ask. Have you been quoted in any papers that you've seen?

CS: I don't think so.

HH: Do you consider the quality of the media coverage here to be good, bad, or in between?

CS: Pretty bad, and I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional. So the problem with what we've seen from the media is treating this as much more peculiar, and much larger than it actually is. As I recall, by the way, I was quoted in the Los Angeles Times, and they did say that in at least one person's view, the authorization to use military force probably was adequate here.

HH: Do you think the media simply does not understand? Or are they being purposefully ill-informed in your view?

CS: You know what I think it is? It's kind of an echo of Watergate. So when the word wiretapping comes out, a lot of people get really nervous and think this is a rerun of Watergate. I also think there are two different ideas going on here. One is skepticism on the part of many members of the media about judgments by President Bush that threaten, in their view, civil liberties. So it's like they see President Bush and civil liberties, and they get a little more reflexively skeptical than maybe the individual issue warrants. So there's that. Plus, there's, I think, a kind of bipartisan...in the American culture, including the media, streak that is very nervous about intruding on telephone calls and e-mails. And that, in many ways, is healthy. But it can create a misunderstanding of a particular situation.

HH: The libertarian panic that you referred to, I actually believe that that probably did prompt a lot of the original egregiously wrong analysis. But now I'm beginning to be concerned that the media is intentionally ignoring the very strong arguments defending what the president did. Do you believe that's taking place?

CS: I don't like accusing anyone of intentionally ignoring anything. So I believe with respect to people, whatever their political views, you should have charity, and assume until it's proved wrong that they're acting in good faith. It's still early in this, by the way. And I think the tide is turning a little bit in terms of the legal analysis. If it turns out that this goes on for months, and facts don't come out that are worse than the facts we now have, then it looks...then it will look like a continuing panic, which would be worse than what we've seen just in a couple of days.

HH: Have you had a chance yet, Professor Sunstein, to review the William Moschella memo on the program that was sent today to Senators Rockefeller and Roberts, and Congresspeople Hoekstra and Harman?

CS: Yeah, I've read that.

HH: Did you find it persuasive?

CS: I thought it was good. It was a solid job. I thought there were a couple of things that, you know, these are the president's lawyers, and they're not going to be neutral. I think it was definitely more on than off. The analysis of the Fourth Amendment issue was brisk and conclusory. All that was said was that the Fourth Amendment requires reasonableness, and this is reasonable. Chief Justice Roberts would demand something a little bit better than that, as would any good judge. The analysis of the case you mentioned, that is the United States against United States District Court was...I guess the lawyers were just tendentious. But I don't think it was...I think it was a good, solid analysis. Better than what we've seen, let's just say, from Congress so far.

HH: All right. Now let's talk about how this gets to the courts for review, because I frankly don't see any way for this program to get to the courts for review, unless and until any of the information is used against the suspect, if that suspect is capable of actually finding that out. Do you see judicial review of this occurring in any way?

CS: You're completely right. You have to find someone who has standing to object to this. And so what you'd have to find is an American citizen whose been tapped, or intruded on in a way that results in harm. Now if someone's phone has been tapped, and there's been nothing done with it, there's an argument that there's standing there. But it's very possible this won't be litigated at all.

HH: Let's turn, then, to the person who leaked it to the New York Times. I discussed this with Senator Jon Kyl last hour, Senator Cornyn yesterday. It is clear to me that a federal crime has occurred. Do you agree with that?

CS: I'm not sure. What's the statute that this would violate?

HH: The release of classified documents, and it's in 18USC something. I don't know. It's just that if something's classified, you cannot give it to someone.

CS: And the existence of the program was itself classified?

HH: Yes.

CS: Well, then if so, absolutely.

HH: When you were at Justice, did you get the sense of compartmented information clearances, and all the briefings that went with that?

CS: Sure did.

HH: And were they as adamant in your years as they were in mine about the penalties that would attach to the release of such information?

CS: It was implicit. I mean, no one, when I was there, so far as I know, would even spend a second thinking of leaking classified material. That was the most obvious thing in the world. If you think about doing it, you've thought too much.

HH: And if...are you...

CS: It was a moral requirement, not a...when we were there, we wouldn't leak. It was a moral requirement. It wasn't we were afraid of crime, it was we wouldn't do something that was wrong.

HH: I agree with you on that. And my question is do you think damage to the United States' national interest may have occurred as a result of the leak of this material?

CS: I think it might have. I really hope not, but I think it might have. I mean this is a program which...whose efficacy might well depend on its being secret. That would be...if so, then that would be very, very harmful.

HH: Professor Cass Sunstein, I want to thank you for spending a half hour with us. Very, very interesting conversation. I appreciate as well the law blog, and we'll continue to look forward to reading it. Maybe we can have you back as this unfolds.

CS: My pleasure. I enjoyed it.

HH: Thank you.
Nixon advocated the same imperial presidency that you do. 30 years ago you probably would be arguing the same way.

"Official: Army Has Authority to Spy on Americans"

"“Contrary to popular belief, there is no absolute ban on [military] intelligence components collecting U.S. person information,” the U.S.Army’s top intelligence officer said in a 2001 memo that surfaced Tuesday.

Not only that, military intelligence agencies are permitted to “receive” domestic intelligence information, even though they cannot legally “collect” it,” according to the Nov. 5, 2001, memo issued by Lt. Gen. Robert W. Noonan Jr., the deputy chief of staff for intelligence.

“MI [military intelligence] may receive information from anyone, anytime,” Noonan wrote in the memo, obtained by Secrecy News, a newsletter from the non-profit Federation of American Scientists in Washington.

Defense Department and Army regulations “allow collection about U.S. persons reasonably believed to be engaged, or about to engage, in international terrorist activities,” Noonan continued."

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