That said, Mona brings up some interesting yet fatally flawed points.

On the NSA program, no one knows the details of this program. No one in Congress anyway. I have seen legal analyses arguing both the legality and illegality and frankly, I think it kind of silly to predict what SCOTUS would do if the issue ever came before them. The technical aspects of the program remain hidden which means 1) We don’t know for sure whether there was “eavesdropping” i.e. actually having a human being listen in on calls and read emails of more than a handful of people, and 2) how come critics never, ever, ever, mention that ONE SIDE OF THE CONVERSATION TAKES PLACE OVERSEAS? Or that the liklihood of two American citizens having their calls captured in this digital dragnet are as close to zero as you can get?

Critics of the NSA program present a lot of smoke but no fire. And the kicker is of course, that Democratic members of Congress - with half a dozen exceptions - are not calling for an end to the program! So what Mona is saying is that a program that presents a close legal call that even the political opposition is not calling on it being ended should be stopped?

BTW- the Administration has been forced into this “dealmaking” because of an illegal leak of classified information. Some intel type took your attitude Mona. Which is fine for you since you’re not in a position to harm national security. But someone committed a crime and will go to jail because in their overarching hubris, they decided that they - unelected as they were - have more moral authority than the President of the United States.

Just thinking about that kind of arrogance takes my breath away.

Please search “Mona” at any of: Left2Right, the Swiftboat Vets message board in the months before the election, InDCJournal, and I think I have a few comments from the pre-election period at Captain’s Quarters. I voted for George Bush in 2004.

For example, you claim that the Administration would lose 8-1 if the NSA Terrorist Surveillance Program ever came before the Supreme Court and point out that the Administration is avoiding putting the program up for trial as evidence to support your claim.

Yup, and even Hugh Hewitt has noted that the Bush Administration is engaging in unusual “dealmaking” with the FISA court rather than appealing any adverse decisions that would put the legality of their warrantless surveillance at issue. Paraphrasing, Hewitt said this hinted at a lack of trust in their legal theories (theories Hewitt agrees with). You and I have interacted at Protein Wisdom (and I believe I may have been posting Bush-supportive things there in ‘04, as well, but more likely at InDC.) So you might recall that I posted the Hewitt statements and and his discussion of the WaPo article addressing that the Administration won’t appeal FIS Court decisions that pertain to the relevant program. I linked to them at PW.

This program would lose, overwhelmingly, in the SCOUTS. I suggest you google Volokh Conspiracy for Orin Kerr’s analysis, if you doubt me. I’ve told you the many other legal experts– REPUBLICANS — who agree.

I voted for Bush. I’m a lawyer. I understand how extreme are the legal theories the Bush Administration is standing on, utterly oppose them, and am competent to confidently predict that the SCOUTS would as well — which the Bush Administration also knows. That is why a mediocrity like Harriet Miers was chosen (and Hewitt has said that, too, approvingly) — she would have been a reliable voice in support of these bizarre theories. Sam Alito is not such.

Do you have anything other than your assertions to back up anything you claim about the Bush Administration?

For example, you claim that the Administration would lose 8-1 if the NSA Terrorist Surveillance Program ever came before the Supreme Court and point out that the Administration is avoiding putting the program up for trial as evidence to support your claim.

But that’s ridiculous. The American Judicial system doesn’t try moot cases. You need an individual or group with standing to challenge the program. It’s beyond idiotic to demand the Administration challenge itself. So until you can prove to us that a person with standing was being prevented from filing a challenge in Court by the Administration, there’s nothing to all your shrieks.

Honestly, is there any solid reason why I or anybody else should believe you or any of your other appeals to authority (including your laughable screeches that you voted for Bush in 2004)?

This entire thing just illustrates the cynical use of leaks to undermine the Bush Administration by Democrat partisans in the Executive Branch with the active collusion of the Press. The reason the Administration is down in the polls has a great deal more to do with the success the Press and their friends in the Democrat Party have had in pressing forward the narrative that Bush “lied”, “misled”, “manipulated”,”cherry-picked” and/or “exaggerated” the nation into War on Saddam Hussein’s Iraq and is violating the law willy-nilly without actually having to substantiate their assertions.

Off-topic … but let me focus on the BushLied™ narrative …

The fact is, the New York Times and its cohorts made the cynical and completely unethical decision to play on the ignorance of the American people on how Intelligence is gathered, analyzed and presented to the decision makers in American government, in order to conduct a long running political assassination campaign on President for no other reason than partisanship just before the 2004 elections. Unfortunately, it seems that there are still many members of the White House staff, who resolutely hold on to the idea that there is nothing worthwhile in actively defending the Administration’s use of pre-War Intelligence because it would be “re-litigating” the case for the War on Saddam Hussein’s Iraq. This pose is a hybrid of arrogance, hubris and stupidity. The Bush Administration should never have conceded, through its silence, the WMD argument against Saddam Hussein.

Mendacious MSM boosters like Jay Rosen over at PressThink like to pretend that the justification for the war is no longer a pertinent topic of discussion, even as they work day and night to establish and shore up the narrative that the President deliberately used false Intelligence to send American soldiers to die in Iraq for some nefarious reason or other. Most normal people can differentiate between Bush
“lying”/”misleading”/”manipulating”/”cherry-picking”/”exaggerating”, and operating from honest belief. Most normal people would find no fault with the man who does the latter (especially if target is someone like Saddam Hussein) … which, I guess, is why the American Press is desperate to convince the American people that the President did the former.

But the fact remains that it was the overwhelming consensus of the Intelligence Community that Saddam still maintained stockpiles of WMDs and was running programs to create more. It is right there on the front page of the 2002 NIE on Iraq.

Anyone with any experience in Intelligence matters knows that it is not possible to overstate the importance of this issue of “consensus”.

There are literally hundreds of thousands of pages of information on almost every single nation on Earth at the CIA, DIA, NSA, INR, NRO, etc. On top of those pages of raw Intelligence data are thousands of pages of analysis of that data prepared by the agencies’ analysts. Mali poses no threat to America, but you’d better believe that there is a great deal of paper about that nation at Langley.

Iraq was/is an entirely different kettle of fish. The amount of information on the country must have been massive. It is the analysts’ job to sift through this information, come to conclusions, attach a certain level of confidence to them, and present the finished product to their superiors who futher work on it and present their findings upward till it gets to the President and other decision makers (which includes Senators and Representatives on the Intelligence Committees). At each step, conclusions by the analysts are accepted or rejected.

This is not a science. It involves a huge amount of estimation, extrapolation, reconciliation and consensus-building, using information
already known about the subject/target in question. In other words, the analysts who prepared the 2002 NIE didn’t just use information gathered exclusively from 01/21/2001 but information going all the way back from the 1970s.

Despite what the Press and their allies the Democrats would have the nation believe, there are ALWAYS caveats and dissenting views among the analysts. There are literally thousands of them working in more than a dozen agencies. How can there not be differences of opinion? How can there not be many differences of opinion?

This is why reaching a consensus on what the Intelligence means is so very important. There is not enough time in the world for the President (or anybody else) to read (and follow up) on the monstrous amounts of analysis reports produced at the agencies every single day. So what happens is that the reports are condensed all the way up the chain to the DCI who presents his report (which is the consensus of his analysts) to the President as the definitive word from the Intelligence Community as regards a particular subject.

Tenet described it as a “slam dunk” that Saddam had WMDs. This had been the consensus view since the Reagan Administration (note how many Democrats were fulminating about Saddam’s WMDs in the 1990s up until 2003). Are we honestly expected to believe that the Intelligence Clinton based his decision on to launch Operation Desert Fox had no caveats and dissenting views? Yet did any Democrats (or Republicans for that matter) accuse him of lying when he said Saddam had WMDs? Is anyone so accusing him now?

Is there any plausible reason for Bush, considering Saddam’s history of brutality, obfuscation, lies and deception to have rejected the conclusion reached by the vast majority of the nation’s Intelligence agencies as well as EVERY other nation’s (UK, France, Germany, Israel, Russian, Jordanian, etc.) Intelligence agencies, about Saddam and WMD?

What the New York Times and its cohorts have been doing for the past two years is simple enough. They get Leftist partisans at the Intelligence agencies, like Mary McCarthy, not to mention the Democrat staff of the Congressional Intelligence Committees, etc. to leak these minority conclusions that had been discarded in the course of preparing Intelligence for upper level consumption and tout them as definitive proof that the “Administration” was “informed” that there were no WMDs, Saddam could never ever consort with terrorists, etc. and therefore the President “lied”, “misled”, “manipulated”,”cherry-picked” and/or “exaggerated” Intelligence to start a war for fun, profit and/or pat on the head from Daddy.

Mona’s original contention was that we made it through the cold war without black holes and torture. I and others disagreed, although none contended it was standard government policy. Then or now.

As for whether torture has ever ever ever been approved at the highest level? I don’t know. As Mona herself said, only those with access to classified information know that. It is against our national morals, but I can’t pretend the Presidency is filled with easy choices. Truman decided to drop the bomb for the greater good. I can’t rule it out that a president might similarly allow someone to be tortured for the greater good. But I’ve got no inside information.

This is wandering far from Rick’s post. However, I will add that there are many instances where one might say their morals made it more important to break their vow of secrecy than to keep a secret, but our society does depend on some secrecy. But they can’t be allowed to do it.

A defense attorney, for example, must never secretly reveal to the press that he believes his client is guilty even if he believes society has a right to know a murderer walks among them. A prosecutor must never make up evidence to prosecute someone he truly believes is guilty, even if he believes in his heart of hearts it will help more people than it harms.

We count on many to keep their secrets. It is as vital to society as any other responsibility we delegate.

In other words when 3000 Americans are murdered, for Mona it’s no big deal because they are just Americans but for Gaia’s sake America must treat her existenial killers with kindness and humanity.

Mona you are torturing Americans with your humanity.

Does this loss include federal retirement benefits ?

Are you saying this was approved? It happens in every war, but to my understanding the military has always opposed it.

This is simply bizarre. I’m at a right-wing site where now several of you have insisted that America has always tortured people. Previously, I’ve only encountered that from anti-American leftists trying to depict us as evil, corrupt & etc. I’d always insisted whatever torture took place was aberrational and not officially approved, because we are not depraved like Stalinists.

Further, you are in no position to know how many people have been tortured, water-boarded or whatever. No one is, except those with access to the classified data.

If Mary McCarthy is lying, she should be shunned as a political hack for the rest of her life.But she was given a polygraph and fired, and is threatened with prosecution, so it hardly seems likely that she divulged mere fantasies. The other reason I beleive her, is that Bush fought tooth and nail to prevent the anti-torture legislation, but it passed by a veto-proof majority. In his signing statement, however, he made clear he feels entirely justified in flouting that law, just as he has FISA. He feels that way about any law that remotely touches on national security.

Our laws cannot bind that man, because he refuses to adhere to them. The federal courts would smack him silly, but it has been hard to find anyone with standing to bring the matter to litigation. The SCOTUS decided in ‘52 that Congress and the President share national security powers, and that when Congress legislates, it almost always wins; it was held that this must be, even during war, or else we lose the rule of law.

That case has been frequently discussed by SCOTUS in the last several years, and applied. That case, Youngstown, not some FISA review panel dicta, is why Bush would lose, as he should.

Yes. I’ve never been sure what to call myself there after I “came out” as Mona, since there were those who only knew me as Hypatia. So I settled on calling myself “Hypatia” in quotes.

You continue: To date every court decision including the only one ever made by the FISA appeals court, every president to hold office since the passing of FISA,the writings of the founding fathers, and numerous legal scholars support the Presidents argument.

There are zero court decisions holding in support of the President’s legal position, and several that indicate he’d lose Scalia and likely even Thomas. There is one setence of dicta from a FISA Review Panel that his supporters like, but that issue was not briefed and was not argued or ruled on. That is why it is dicta — having no precendential value at all.

Bush would lose in the federal courts. Period. He knows it, and that is why he is moving heaven and Earth to keep the matter out of litigation. Orin Kerr is not a left-winger, and that is his assessment. Neither is Doug Kmiec, who is as conservative a Republican as exists on the planet (contributes every now and again to NRO), and who taught me Con Law. He frets about discussing whether the program is legal or not, but has said it could have been so only as an emergency matter in the immediate aftermath of 9/11. He tries to exonerate Bush by refering to bad legal advice.

The first person to approvingly mention impeachment was Bruce Fein, an arch-conservative Con Law scholar from the Reagan DoJ. I can’t exaplin all the legal reasons why all of these lawyers know Bush would lose, not within the limitations of this comments section. But I can say that as a lawyer who voted for Bush in ‘04, and one who is competent to read the relevant case law and to determine the posture of the SCOTUS members, I am as certain of how they would rule as I am of any legal question I can think of.

Now, when I pay my taxes, I really do want a CIA that waterboards less than 12 people over 5 years of war, including the mastermind of 9/11 Sheikh Khalid (sp?) after conventional methods did not work. He’s the friggin’ definiton of a ticking bomb scenario, sorry Mona.

and plenty of people were tortured in the cold war…you do realize American troops tortured prisoners in Viet Nam?

If the leaked program was not real, then it couldn’t be classified. You can’t classify something that doesn’t exist. Therefore you can’t bust someone for leaking a nonexistant program.

2nd: We don’t have evidence that she didn’t try proper channels first. We don’t have evidence that she did either.

3rd: We don’t have evidence that she was the original leaker. The Priest story cited multiple sources. It’s possible she confirmed what Priest already knew from European sources.

4th: If Ms. McCarthy get’s busted (as she should if what we know now is the full story), then why did Sen Hatch get a pass back in Sept. 2001? Or Duetch, or any number of others? Hatch’s leak was certainly worse than Ms. McCarthy’s since he exposed sources and methods that led to a sorce drying up. http://www.nationalreview.com/geraghty/geraghty200310010843.asp