Right Wing Nut House

If the Senate Judiciary Committee hearings on the NSA intercept program were a boxing match, the Democrats would be ahead on points after the first couple of rounds - but just barely.

AG Gonzalez acquitted himself well but was at a huge disadvantage. Because of the secrecy of the program, he was unable to reveal details that could have buttressed his case that the Administration’s warrantless interception of American citizen’s communications was inherently legal based on both exceptions to the FISA statute and the authority granted by the President by Congress when that body authorized the use of military force after 9/11.

Necessarily having to engage in generalities, the AG was at his worst when penetrating questions by Senators Leahy and Feinstein went to the nuts and bolts of whether or not the program spied on American citizens where both ends of the conversation took place in this country. He was at his best when he carefully outlined the program’s legal rationale in a very good opening statement that fleshed out the Department of Justice white paper originally claiming that the Authorization to Use Military Force (AUMF) was a trigger that allowed the President to use expanded powers granted him by the Constitution.

Exhibiting none of the personal attacks that came off so poorly in the Alito hearings, the Democrats mostly behaved themselves, even going so far as to suggest that the program may be necessary in order to protect the country. With the exception of Russ Feingold whose wildly exaggerated charges of illegality was in sharp contrast to the more subdued charges of his fellow Democrats, it was clear that the Democrats strategy was to point to certain inconsistencies in the Administration’s defense as it has emerged over the last 6 weeks and raise questions about both the legal justification for the program and the way it has been administered.

Republicans on the other hand performed a Kubuki dance with Gonzalez, making statements of support that Gonzalez would pick up and expound on. There were two notable exceptions. Senator Specter said he was “skeptical” that the AUMF rationale for the expansion of Presidential powers to justify the intercept program would fly. And Senator Lindsey Graham actually made what I thought was an excellent point:

“This statutory force resolution argument that you’re making is very dangerous in terms of its application for the future.” He added, “When I voted for it, I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche.”

Graham said that “it would be harder for the next president to get a force resolution if we take this too far. And the exceptions may be a mile long.”

I think Graham is exaggerating but his point is well taken. Perhaps it isn’t such a bad thing that Congress, when authorizing the use of force, think about how a President might use this power in the future.

From a political standpoint, the Democrats bloodied the AG when pointing out some of the President’s statements on the issue of warrantless searches in the past as well as the Administration’s curious reluctance to amend FISA to include the program despite several opportunities since 9/11 to do so. The AG’s explanation - that the President was concerned about the program’s secrecy - seemed a little lame and forced at times and I think the Dems scored. This WaPo article sums up some of the inconsistencies authored by Bush over the last several years:

It is one of several explanations on the topic from Bush and his aides, who have provided at least two separate rationales for why they did not ask for statutory authority for the program. Attorney General Alberto R. Gonzales said the administration had considered seeking legislation but determined it would be impossible to get, adding later in the same news conference that authorities did not want to expose the program’s existence. White House spokesman Scott McClellan has echoed the latter point, saying the administration feared that details of the classified program would be exposed publicly.

The subject is one of several elements in the NSA spying debate that have been clouded by apparent contradictions and mixed messages from the government since the program was revealed last month. The confusion has cleared up little in recent days, as the White House has embarked on a multi-pronged campaign to defend the legality of the controversial program.

Gonzales and other officials, for example, have repeatedly said that the Foreign Intelligence Surveillance Act (FISA), which governs secret surveillance in the United States, is too cumbersome to be applied to the NSA eavesdropping program. Yet the Justice Department raised concerns about a 2002 bill to loosen FISA requirements.

There is also an issue lurking in the wings that may come out and bite the Administration in the near future. And that is that the NSA program has undergone several revisions since it was initiated, mostly at the behest of lower level DOJ attorneys who feared the program went over the legal line and spied on Americans without a warrant. Attorney General Ashcroft apparently addressed many of their concerns but the information begs the question; how big is the scope of this program and are there other aspects to it that may in fact be illegal?

Democrats wish to call these witnesses but the AG brushed them off with the statement that they were all on board with the program in its current incarnation. If Specter and Graham were to vote with the Democrats to call the DOJ dissenters, expect the Administration to resist strenuously even to the point of claiming executive privilege in the face of subpoenas.

If it comes to that, there will be blood on the floor of the hearing room as the AG will be hauled back and forced to justify Administration intransigence. It won’t come to that if the Republicans hold firm but that should be an interesting sidebar to watch over the course of the hearings.

Anyone who spends much time researching issues on the internet knows full well the difficulty in trying to find non-partisan, objective, and rational discussions that would illuminate rather than obfuscate the facts through which one can make a well-thought out decision about where to take a stand.

And I don’t buy the canard that by delving into both sides of an issue, essential truths are revealed that can assist the interlocutor in finding the means to arrive at a rational position on questions of national import. There isn’t just a chasm between left and right on many issues, there is in fact a universe of difference - alternate realities where the inhabitants live by different physical laws and are governed by different passions, differing worldviews, and conflicting priorities that combine to make it impossible to get to the nub of the matter and uncover the essential factuality that should be driving the debate.

This is especially true on matters pertaining to Presidential power and how it has been exercised under the Administration of George Bush. You can learn virtually nothing by reading sites like this one or those on the other side of this issue simply because the personality and ideology of the President are seen through two prisms where the same facts cast entirely different colors of the rainbow. There is no gray contained in this kind of political spectrum analysis, only darker hues on one side and lighter ones on the other. As such, there is no way to assay the contradictory points of view, an effort that would entail the invention of entirely new colors to describe the reduction of both arguments to a form that would be intellectually useful.

I am not a lawyer. Nor am I a Constitutional expert. I am blessed with no special abilities except my own native intelligence and 52 years of life experience living in a free country where thought isn’t regulated and we are only limited in our search for knowledge by time and circumstance. So when I came to the conclusions contained in this article, I realized a brand new personal verity; humility is truth.

The Dutch priest and humanist Erasmus reached the very same conclusion more than 500 years ago. Admitting you don’t know everything can be a liberating experience as it was for Erasmus who saw the search for knowledge as an excruciating but exciting endeavor. The philosopher lived in extremely turbulent times, not unlike the ones we find ourselves today. He saw the divisions between Lutherans and Romanists which were tearing Europe apart at the time as symptomatic of a sickness of thought and reason that infected the elites and caused them to move the masses to murder and mayhem. “Beware lest clamor be taken for counsel” was an admonition of his that could be plucked from the 14th century and slapped across every computer monitor belonging to those of us who see politics as combat and ideas as weapons.

That said, when examining what powers that the executive branch of the federal government has gathered unto itself under the Bush Administration and whether this concentration of power is dangerous, it becomes necessary to look past the hagiographic rhetoric of the right and venomous bombast of the left in order to arrive at a conclusion that answers the fundamental question any thinking citizen of the United States should be asking; is it necessary to insure the security of the United States that we lose so much of our liberty?

Make no mistake. The Bush Administration, in the name of protecting us from the evil designs of our enemies, has asserted Presidential prerogatives and has at its disposal the technological means to seriously threaten many of the liberties we have taken for granted for more than 200 years.

I hasten to add that this does not mean that those liberties have, in fact, been violated. Only that the potential is there for national security bureaucrats to trample on some of the most cherished rights that have sustained this republic since its founding. Good intentions are not enough. Motives are irrelevant when dealing with the enormous power of the executive branch to violate our privacy, to peer into the most personal and precious aspects of our lives. The fact that corporations are now doing this with an ever growing sense of impunity is extremely troubling but an entirely different issue. When done in the name of national security, the government’s efforts to snoop take on the veneer of oppression if not in strict definition then certainly in spirit. Albert Camus said ” The evil that is in the world almost always comes of ignorance, and good intentions may do as much harm as malevolence if they lack understanding.” People who believe themselves to be acting as patriots or in the public good are just as dangerous as those who would use something like the NSA intercept program for nefarious purposes.

Since we will never know all the details of how the intercept program works, it will be impossible for anyone - left or right - to make a definitive determination as to whether or not the program violates the law. Humility is truth. But the question of its constitutionality is a different matter. In that respect, the issue is ambiguous enough that the exercise of authority by the President granted by both tradition and precedent would seem to indicate that George Bush is well within his rights to carry on with such activities. Not being a lawyer, I can only judge such a thing by what I read. And I find the arguments about the program’s constitutionality much more persuasive than those who argue that the President has no such power vouchsafed him by our Basic Law. Looking at history, a President’s power has always been pretty much what he says it is with significant exceptions. For those, the Congress and the Courts exercise their powers to rein in Presidential overreach. This is the essence of the separation of powers doctrine as I understand it and I believe that history bears me out on this.

So despite unanswerable questions about the project’s technical workings, there is a a strong - perhaps overwhelming - case to be made that the NSA intercept program is a lawful exercise of Presidential authority. That said, in order to answer the fundamental question regarding the accumulation of executive power under President Bush, one must look at the totality of actions taken by the Administration in the name of national security. And in this respect, there are very troubling indications that the President has gone too far in trying to secure the nation from a terrorist attack.

I say this not as a civil liberties absolutist but as someone who has been trying to come to grips with what can best be described as this Administration’s single mindedness about security and its impact on both the separation of powers and the personal liberty of individual Americans. I am deeply troubled by what I see as an incrementalist approach to the legitimate questions of our security and freedom. Take a little here, a little there, and before you know it, the executive branch has trespassed into areas that are not their province nor their business.

I am more than willing to trade a little “non essential” liberty for more security. Any rational person would be. What I am not willing to do is support the efforts of this Administration to rationalize the invasions of privacy, the warrantless searches, the indefinite detention of US citizens and legal aliens, the rejection of restrictions on interrogation procedures found in international treaties, and granting the national security state vastly expanded powers to gather domestic intelligence - all in the name of securing the homeland - without more specific approval from the Congress.

I can understand the give and take, the tug of war if you will that occurs between an executive branch that seeks to define its own authority to take action in the name of security and Congress and the Courts who either give their assent or seek to rein in these powers through legislation or judicial decisions.

But the absolute necessity for secrecy like that surrounding the NSA intercept program as well as actions taken by the FBI and DHS to protect us has created a culture that is accountable only to their own good intentions.

And that, from my point of view is totally unacceptable.

Time and again we have seen instances where Congress has either failed to act or has acceded to the Administration’s interpretation of the exercise of executive power without knowing all the facts. We’ve seen it with the prisoner issue and the refusal by Congress to clearly define the rights of those being held as enemy combatants. We have seen American citizens mistakenly picked up in dragnets and held for months at a time with no contact allowed with family or their attorney. There is the case of Cyrus Carr, an American citizen, held in Iraq for almost a year, despite being cleared within a few months of his incarceration. Then there was the anarchist jailed for linking bomb making sites on his webpage. He took a plea deal because he feared the prosecutor would bring him up on terrorism charges which could have added 20 years to his sentence.

These are not isolated incidents. And whether or not you think the people involved deserved what they got is irrelevant; what they deserved were the same protections that you and I enjoy under the Constitution. If you do not believe that, then I pray a day never arrives where your beliefs and politics are placed under similar threat. By limiting freedom for some, we limit it for all. And while I recognize that wide latitude must be given the government - especially in these extremely dangerous times - there simply must be limits. And those limits must be decided by the Congress and the courts.

If this all sounds as if I am of two minds regarding the clash between our liberty and security, you are correct. But in the end, I am taking the position that the Administration has overextended itself and is posing a threat to some of our most cherished freedoms. Perhaps some real good can come out of the examination of the NSA intercept program in Congress if it initiates a serious discussion of the issues that I’ve raised. I am not hopeful given the partisan political climate that surrounds these issues. But even the kind of rank partisanship demonstrated by members can be useful if it reveals some essential truths about what we as a people should be doing to protect ourselves from an enemy that seeks to destroy us.

UPDATE

Michelle Malkin discusses the author who inspired this post - Ben Franklin. Franklin’s admonition about liberty and security (which has been hijacked and distorted by the far left) was given in the spirit of his times. This was a period in American history that featured an almost unreasoning fear that the country would degenerate into an authoritarian monarchy or just as bad, a “mobocracy” where Congress and the President would be beholden to a rampaging citizenry who would trample individual rights.

We must look to our own times for the answers to our questions. Franklin’s Philadelphia was not threatened by nuclear or biological weapons. Nor were Franklin’s conversations in danger of being recorded or his “private space” so necessary to the flourishing of liberty in danger of being intruded upon. And I’m sure Franklin’s definition of what was “essential” about liberty was very much narrower than our own.

That said, Franklin had a point; it’s easy to define security. But what liberties are truly “essential?” Here Hamlet best guides us: “To Thine own self be true.”

Here’s a worthy cause we can all get behind.

Jay at Stop the ACLU is supporting blogger Debbie Schlussel’s effort to file an affidavit on our behalf as American citizens in the ACLU’s suit against the NSA. Debbie would like as many “interveners” as she can get. Here’s what she needs:

I will need everyone’s complete name and contact info (full name, phone number, e-mail address, complete U.S. snailmail address–you must be a U.S. citizen). If you have e-mailed me regarding this, I will respond via e-mail to you over the weekend and into next week, with an affidavit to sign (with notarized signature) and a brief agreement saying you agree to have me represent you in court for this matter and that I will not charge you any fees.

Debbie will not charge any fees but there are costs involved for filing the affidavit ($250) as well as other charges as we go along. That’s why Jay has a donation button at the bottom of this post. Please visit Jay’s site and sign up for the affidavit and also to give generously to this worthy cause.

Using so many qualifiers that one would think that they owned the franchise on the word “maybe,” the Congressional Research Service (CRS) has determined that the Bush Administration “probably” cannot claim the broad expansion of Presidential powers the President has relied on to justify the NSA intercept program:

President Bush’s rationale for eavesdropping on Americans without warrants rests on questionable legal ground, and Congress does not appear to have given him the authority to order the surveillance, said a Congressional analysis released Friday.

The analysis, by the Congressional Research Service, a nonpartisan research arm of Congress, was the first official assessment of a question that has gripped Washington for three weeks: Did Mr. Bush act within the law when he ordered the National Security Agency, the country’s most secretive spy agency, to eavesdrop on some Americans?

The report, requested by several members of Congress, reached no bottom-line conclusions on the legality of the program, in part because it said so many details remained classified. But it raised numerous doubts about the power to bypass Congress in ordering such operations, saying the legal rationale “does not seem to be as well grounded” as the administration’s lawyers have argued.

The murkiness contained in the CRS report is not their fault. There are still so many details of the intercept program that are classified that it is impossible to make any kind of determination as to whether or not the program is Constitutional and/or legal.

Then why write a report in the first place? Well, Congress asked them to, that’s why. Twenty-seven Congressmen sent the non-partisan adjunct to the Library of Congress a letter requesting their opinion on the legality of the program and whether or not the Department of Justice’s explanation held any Constitutional water. Under law, they were obligated to respond.

Their answer to both questions was a qualified “probably not:”

The 44-page report said that Bush probably cannot claim the broad presidential powers he has relied upon as authority to order the secret monitoring of calls made by U.S. citizens since the fall of 2001. Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before engaging in such surveillance when it passed legislation creating the court in 1978, the CRS report said.

The report also concluded that Bush’s assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force.

While this gives some ammunition to civil libertarian absolutists and partisan Democrats, what particularly struck me was the less qualified and stronger rejection by CRS of the rather sloppy Administration argument that Congressional authorization was contained in the “Authorization to Use Military Force” (AUMF) passed in the wake of the 9/11 attacks:

The report also concluded that Bush’s assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force.

“It appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here,” the authors of the CRS report wrote. The administration’s legal justification “does not seem to be . . . well-grounded,” they said.

Orrin Kerr has made the same argument and has pointed out that the DOJ letter was sent by the Office of Legislative Affairs. This bunch probably knew less about the technical details of the program than the rest of us know today thanks to the publication of the Risen book. So, in my opinion, the justifications by the Administration for the program will probably receive a much fuller treatment during the almost certain Congressional hearings on the matter.

All this CRS report does is muddy the waters on both the legality and Constitutionality of the NSA intercept program. Given their limited knowledge of the program and the near certainty that no definitive case could be made one way or the other, one has to look at the motives of those asking for the report in the first place. It seems pretty clear that Congress is very concerned (as they damn well should be) about any unwarranted expansion of executive power - even in time of war. As our friends on the left are so fond of saying, “War doesn’t make the President king.” This is very true but neither should it be the business of Congress to tie the hands of the President and emasculate his powers in matters of national security where the life and death of thousands - perhaps millions - of citizens is at stake.

This is the razor’s edge that our democracy is standing on right now. And the fact that Democrats are using the CRS report as a club to score partisan political points is typical but unhelpful. Perhaps it is too much to ask that we wait until more is known about the intercept program before leaping into either the abyss of executive power emasculation or the quicksand of an imperial Presidency. If we really put our minds to it, perhaps we could come down somewhere in the middle.

Given the rank partisanship on the hill, I wouldn’t hold my breath waiting for it.

UPDATE

John Hinderaker agrees with me on the ambiguity of the report’s conclusions - which either makes me very smart or the CRS report very obvious.

Hinderaker also skewers the Washington Post for their slanted coverage.

Bill Gertz has a story in today’s Washington Times that actually “broke ” almost two weeks ago; that a former NSA and DIA employee wrote a letter to the Chairmen of the House and Senate Intelligence Committee asking to testify about illegal surveillance activities of the federal government:

A former National Security Agency official wants to tell Congress about electronic intelligence programs that he asserts were carried out illegally by the NSA and the Defense Intelligence Agency.

Russ Tice, a whistleblower who was dismissed from the NSA last year, stated in letters to the House and Senate intelligence committees that he is prepared to testify about highly classified Special Access Programs, or SAPs, that were improperly carried out by both the NSA and the DIA.

“I intend to report to Congress probable unlawful and unconstitutional acts conducted while I was an intelligence officer with the National Security Agency and with the Defense Intelligence Agency,” Mr. Tice stated in the Dec. 16 letters, copies of which were obtained by The Washington Times.

The letters were sent the same day that the New York Times revealed that the NSA was engaged in a clandestine eavesdropping program that bypassed the secret Foreign Intelligence Surveillance Act (FISA) court. The FISA court issues orders for targeted electronic and other surveillance by the government.

Tice’s “whistleblowing” was accusing a fellow employee at the DIA of being an agent for China. What happened next is typical of what occurs in our intelligence agencies if you rock the boat; they go after your personal life.

He was ordered to take a psychiatric exam after which he was judged a “paranoid.” His clearance was yanked and he was given menial tasks like washing motor pool cars and working in the NSA warehouse. Eventually, he was fired, coincidentally or not, a week after testifying before Congress about persecution of whistleblowers and how they should be protected under the federal whistleblower statute.

Given the nature of his accusation against the employee and the fact that she continued to work there after the DIA investigated could mean any number of things. What it doesn’t mean is that the DIA is harboring a communist Chinese spy, something Mr. Rice insists is still the case.

Does this make him a paranoid loon? Well…you decide:

In April 2003, Tice sent an e-mail to the DIA agent handling his suspicions about a co-worker being a Chinese spy. He was prompted to do so by a news report about two FBI agents who were arrested for giving classified information to a Chinese double agent.

“At the time, I sent an e-mail to Mr. James (the person at DIA handling his complaint) questioning the competence of counterintelligence at FBI,” Tice wrote in a document submitted to the Inspector General. In the e-mail, he mentioned that he suspected that he was the subject of electronic monitoring.

Shortly after sending the e-mail, an NSA security officer ordered him to report for “a psychological evaluation” even though he had just gone through one nine months earlier. Tice believes James called NSA to ask them “to go after him” on their behalf.

The Defense Department psychologist concluded that Tice suffered from psychotic paranoia, according to Tice. “He did this even though he admitted that I did not show any of the normal indications of someone suffering from paranoia,” Tice wrote in a statement to the inspector general.

The culture in our intelligence agencies brooks no opposition so even though some of the things Mr. Tice himself describes sounds like a classic case of paranoia there is plenty of room for doubt. Then again, Mac’s Mind has some interesting information about why Mr. Tice’s clearance was revoked:

Word is that his security clearance (because he was misusing information and looking with unauthorized peeks into the co-worker’s background), was subsequently revoked - FOR CAUSE - or for those on the left - because he violated the terms of keeping a clearance. (HT: AJ Strata)

Having said that, it is unlikely that Tice would have any bombshells to deliver to the Committees. He says that these SAPS programs were “illegal and unconstitutional.” Now I’m sure Mr. Tice is a very smart fellow but I daresay he is neither a lawyer or a constitutional scholar which makes his charges ring a little hollow.

More importantly, why him and why now? My friend Clarice Feldman who is a frequent contributor at The American Thinker has some interesting information on that score. Apparently Tice is a member of a group called National Security Whistleblowers that sure has some familiar names:

Along with more familiar names like Daniel Ellsburg, you’ll see Lt. Col. Anthony Shaffer on the list. You’ll also find Ray McGovern and Larry Johnson. These are members of VIPS, the group that encouraged intelligence agents to leak, shopped Wilson and his story (Johnson was in the agency with Plame and is close to her.) As I noted earlier here, they seem to have been behind much of the Plame/Wilson story. I smell the same public relations/media campaign .The same phony claims of maltreated government employees. If Tice was a source for Risen, and it’s not clear he was, the reporter was certainly casting a broad net. For as Mr. Gertz notes in his article:

“Mr. Tice said yesterday that he was not part of the intercept program.”

Now what would our old friends Johnson and McGovern be doing in a group of whistleblowers? Both of those men came to prominence after they left government. In fact, both of them have been out of government for several years.

Something stinks here. And Clarice agrees:

The only significant difference between the original Plame/Wilson scandal and the revival at NSA is that the same folks who moaned about a major intelligence breach that had to be punished when Valerie Wilson’s desk job at the CIA hit print are now openly supporting a leaker and claiming he is entitled to protections – even though he hasn’t gone through the channels established by law.

Could the Johnson-McGovern crew have recruited this hapless ex-NSA employee in another PR effort to try and discredit the Bush Administration? Pure speculation, of course. But a strange and curious case indeed.

I guess if your name is Clinton, violating the law means never having to say you’re sorry…just make sure you’ve got a good enough lawyer:

A fund-raising committee for Senator Clinton’s 2000 campaign has agreed to pay a $35,000 civil penalty and to concede that reports it made to the federal government understated by more than $700,000 donations to a California celebrity gala held to benefit her Senate bid.

The agreement between the committee, New York Senate 2000, and the Federal Election Commission ends the campaign finance regulation agency’s inquiry into a complaint filed in 2001 by an entrepreneur who financed the fund-raising concert, Peter Paul.

“The civil payment assessed to New York Senate 2000 resolves the question of underreported in-kind contributions, and there will be no further action on this matter,” an attorney for the fundraising committee, Marc Elias, said.

If you’re interested, the Hollywood gala took in $721,000 and Hillary’s campaign reported that she realized $57,000. That’s not so bad. Just hope that when she’s President, she doesn’t name her Finance Chairman David Rosen Director of the Office of Management and Budget.

That won’t be likely since Mr. Rosen is under indictment for misleading the FEC on what was taken in on that star studded night. Another organizer of that same fundraiser, Aaron Tonkin, has already pled guilty to fraud in connection to other charity events unrelated to the Clinton fundraiser.

That’s some crew. Given the number of crooks, scofflaws, leches, loons, and galoots who were in her husband’s Administration, I suppose we shouldn’t be so surprised.

What’s surprising is that Hillary herself has escaped with nary a scrape on her sparkling reputation. This is strange, since Hillary apparently knew all about the effort to flim-flam the FEC:

New York Sen. Hillary Clinton personally negotiated some of the fees for a star-studded Aug. 12, 2000 Hollywood fundraiser, the event’s producer, Peter Paul, said in an interview aired on Sunday - as the event comes under increasing scrutiny by a Los Angeles grand jury and the Justice Department.

And in another sign of potential legal trouble for the top Democrat, a spokesman for the law firm championing Paul’s case said his client informed Mrs. Clinton that her finance director, David Rosen, had failed to accurately report costs for the event to the Federal Election Commission.

“Hillary Clinton personally called the producer of the concert part of this event,” Mr. Paul told Fox News Channel’s Eric Shawn. “She asked him to lower the fee that he was charging of $850,000 at my request. So I don’t understand how she could possibly say that she didn’t know.”

Poor Mr. Paul. He evidently isn’t familiar with the Clinton SOP: Deny, deny, deny. And if that doesn’t work, blame the Republicans.

Ed Morrissey believes that there are lessons to be learned from Hillary’s great escape:

In the end, this probably doesn’t hurt anyone too much, but it should remind voters of two important issues. One: the Clinton’s always seem to trod through the outer fringes of election law when it comes to raising money. Two: These Byzantine rules for designating cash in elections only delight attorneys and accountants, and in that order.

Yep. Which means that the next round of campaign finance “reform” that will most surely be pushed as a result of the Abramoff fiasco will have the shysters and pencil necks licking their chops in anticipation.

UPDATE

Michelle Malkin links to Peter Paul’s blog for a more lengthy rundown on Hillary’s complicity in hoodwinking the FEC.

Ever since the NSA intercept story broke nearly 3 weeks ago, it had been my position that before supporting or condemning the top secret program, I wanted to see details of how it actually worked.

From the beginning, I’ve had three concerns:

1. Was the program legal?
2. Was the program Constitutional?
3. Was the program necessary?

One might think that numbers 1 and 2 would be the same thing. But as I’ve learned from Orin Kerr and the Powerline guys, they are not. The program could in fact be Constitutional in that it did not violate either the Fourth Amendment or Article II of the Constitution which deals with the powers of the executive branch, while at the same time it could be illegal if the intercept program was specifically prohibited under the Foreign Intelligence Surveillance Act (FISA).

As for the necessity of the program, I always suspected that it was a vital tool in preventing another 9/11 but could not make that determination because many of the technical details were hidden from us.

I must confess that I’ve blown hot and cold on the issue, depending on who I happen to be reading at the moment. For example, John Hindraker has done some exhaustive analysis on the legality of the program, essentially saying that it appeared to be justified under FISA. He cited recent court cases that ruled in favor of the government where warrantless searches were concerned. While the analysis was thorough and answered some basic questions, I was troubled by some of the assumptions Mr. Hindraker was forced to make about how the program actually worked due to the fact that technical details were not forthcoming.

Hindraker also brilliantly elucidated the Constitutional arguments in favor of the program and the subsequent expansion of executive powers. This part was much more convincing - until I read Marty Lederman’s treatment of the same subject (with several excellent links outlining the liberal point of view on the issue). What is utterly fascinating is that two intelligent, learned people have come to differing conclusions using pretty much the same information. This leads me to believe that the legal arguments for or against the program will probably have to be adjudicated in a court of law.

As for Constitutionality, this has also been a murky issue thanks to our ignorance of the technical aspects of the program. However, with the publication of James Risen’s book State of War (extended excerpts here) some light has been shed on how the program actually worked that have eased many of the concerns I personally had regarding privacy rights. The jury, however, may still be out on whether or not the program was technically violating FISA.

Orin Kerr has analyzed some of the nuts and bolts involved in the program. Apparently, this New York Times article that followed up on the initial disclosures actually hit pretty close to the mark as to how the intercept program gathered communications:

Several officials said that after President Bush’s order authorizing the NSA program, senior government officials arranged with officials of some of the nation’s largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States’ communications networks and international networks. The identities of the corporations involved could not be determined.

The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches.

One outside expert on communications privacy who previously worked at the NSA said that to exploit its technological capabilities, the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.

The growth of that transit traffic had become a major issue for the intelligence community, officials say, because it had not been fully addressed by 1970’s-era laws and regulations governing the NSA Now that foreign calls were being routed through switches on American soil, some judges and law enforcement officials regarded eavesdropping on those calls as a possible violation of those decades-old restrictions, including the Foreign Intelligence Surveillance Act, which requires court-approved warrants for domestic surveillance.

Compare that with this excerpt from Risen’s book I stole off of Kerr’s post:

In addition to handling telephone calls from, say, Los Angeles to New York, the switches also act as gateways into and out of the United States for international telecommunications. A large volume of purely international telephone calls — calls that do not begin or end in America — also now travel through switches based in the United States. Telephone calls from Asia to Europe, for example, may go through the United States-based switches. This so-called transit traffic has dramatically increased in recent years as the telephone network has become increasingly globalized. Computerized systems determine the most efficient routes for digital “packets” of electronic communications depending on the speed and congestion on the networks, not necessarily on the shortest line between two points. Such random global route selection means that the switches carrying calls from Cleveland to Chicago, for example, may also be carrying calls from Islamabad to Jakarta. In fact, it is now difficult to tell where the domestic telephone system ends and the international network begins.

There have been reports that the spooks had to do a little arm twisting to get the cooperation of at least one of the Telecom companies involved. This leads me to believe that lawyers for the Telecom companies had many of the same concerns as the people in the Department of Justice and in the intelligence community who talked to Risen for his book - that the program was ambiguous enough that there was a possibility that it could be seen as technically violating the law or the Constitution.

Here’s Kerr on that:

Reading over this part of Risen’s book, it seems that most of the new surveillance program was not about domestic surveillance at all; most of it was about the surveillance of entirely international calls and e-mails that just happened to be routed through U.S. networks in the course of delivery. According to Risen, the program typically monitored about 7,000 individuals overseas at any given time, as compared to about about 500 people who were located in the United States. From an operational perspective, then, the big difference between prior NSA practices and the new program was that the NSA was using a back door into domestic provider switches in the U.S. to monitor communications that were mostly foreign to foreign.

With that kind of ambiguity, I can see why it may have been difficult to get FISA Court approved wiretaps. If it was virtually impossible to separate domestic from international traffic while monitoring these switches, what exactly would the spooks have been able to ask of a FISA judge? Even though the FISA Court has a notoriously low threshold for granting warrants, the NSA literally had nothing to take to the Court that would have necessitated wiretaps in the first place.

As for electronic communications like emails, here’s another excerpt from Risen’s book that should ease privacy concerns there as well:

While the Internet uses packets to send and receive information, the packets are really just digital ones and zeroes that computers use to communicate with each other. The ones and zeroes can be reassembled into text to be read by a human, but computers do not need to do this and generally will not. A computer surveillance tool programmed to look for all emails to the Internet account “bob@aol.com” does not actually look for the text “bob@aol.com.” To simplify a bit, the tool instead begins by looking for emails, and when it finds an email, it scans the right place in the email for the digital equivalent of “bob@aol.com,” which is 0110001001101111011000100100000001100001. If this exact sequence of ones and zeros appears in the right place, the surveillance tool knows that it has found an email to bob@aol.com and will copy and record the block of ones and zeros that represent the email so that someone can later come back, convert the ones and zeros into text, and read the email. If the tool has an advanced filter and is configured properly, the billions of ones and zeros that do not relate to emails or to the exact sequence of 0s and 1s that represent the target account will pass through the device and be forgotten.

This answers many of the privacy concerns but not all. For instance, once a target email was converted back into text, was there a branching out of that program to start targeting people who happened to be connected not to the original target, but to someone who had sent the email in the first place? In other words, I sure would like to know if you are directly communicating via email with a terrorist. But does the government have the right to target people who send you emails? And what of people who send that person an email? And on and on. It is not clear whether or not the program allowed for this kind of “branching out” of targets or not. In my mind, that kind of scattershot approach would be troubling if not downright illegal.

On the other hand, as Kerr points out, this was a “real time” intercept program and hence, there was no “capture” of emails or phone calls on a massive scale as some have been alleging. This would seem to make it legal under FISA which requires warrants for communications that are actually in the possession of the government. This is admittedly murky territory and I would defer to those with more knowledge of the subject than I.

As for the Constitutional issues, Kerr is not enamored of the Justice Department’s invoking Article II to justify the intercept program. Specifically, government lawyers are saying the President had Congressional authorization for the program thanks to the “Authority to Use Military Force” (AUMF) resolution passed by Congress authorizing the Iraq invasion:

As I have said before, I find the AUMF and Article II arguments unconvincing, so if that’s the right issue to be focusing on, I’m with Armando. But something seems fishy here. For example, the leakers of the story seem focused on the Fourth Amendment instead of FISA. Further, given the extremely small number of people within the government who know the details of the program, it’s not clear that DOJ’s Office of Legislative Affairs (the office that sent the letter) was briefed on the details of the program. That is, the DOJ memo may have been written by people who knew less about the monitoring program than we now know thanks to Risen’s book. (This may seem odd to you if you have never worked in the federal government; my guess is that it will seem less odd to those who have.) So Armando may be right, but I don’t think we know enough to be sure of that.

Do we know enough now about the workings of the program to make a judgment about its legality and Constitutionality? I think we know enough to say that there is no clear cut case to answer that question in the negative. Which brings us to the $64,000 question upon which such ambiguous questions must be resolved: Was the program necessary?

Vice President Cheney had some thoughts on that yesterday in a speech he gave before the Heritage Society:

Another vital step the President took in the days following 9/11 was to authorize the National Security Agency to intercept a certain category of terrorist-linked international communications. There are no communications more important to the safety of the United States than those related to al-Qaeda that have one end in the United States. If we’d been able to do this before 9/11, we might have been able to pick up on two of the hijackers who flew a jet into the Pentagon. They were in the United States, communicating with al-Qaeda associates overseas. But we didn’t know they were here plotting until it was too late.

If you’ll recall, the report of the 9/11 Commission focused criticism on our inability to uncover links between terrorists at home and terrorists abroad. The authorization the President made after September 11th helped address that problem in a manner that is fully consistent with the Constitutional responsibilities and legal authority of the President and with the civil liberties of the American people. The activities conducted under this authorization have helped to detect and prevent possible terrorist attacks against the American people. As such, this program is critical to the national security of the United States.

The left will set up a strawman by arguing that every action the Administration has taken to protect us is justified by 9/11 and that they are using 9/11 as an “excuse” to accrue vast amounts of power and attack the Constitution.

The grown ups among us recognize that argument for what it is; bunkum. It would seem idiotic to have to remind liberals on a daily basis that 9/11 actually happened and that our enemies are working constantly to duplicate the success of that attack and even surpass it in terms of American blood spilled. Concerns over the Constitutionality and legality of the intercept program are well and good. And if they could be argued in a calm, rational manner by both sides I would have some hope that we could come to some kind of understanding on the limits of executive power and some kind of sensible outlook on civil liberties in a time of war.

But you and I both know that is an impossibility. The only thing that concerns the left about this program is that they can use it as a political club to beat the Republicans over the head with come election time. After that, and if they are successful in becoming the majority party in the House, they will give full rein to their hatred of the President as they attempt to use the ambiguity inherent in the program to try and impeach him.

I pity them their madness. The damage they would do the the executive powers of the President with such an inquiry could in fact hamstring future Chief Executives in fighting the war on terror. And that is a circumstance that could spell disaster for all of us.

Lobbyist Jack Abramoff’s guilty plea on conspiracy, tax evasion, and mail fraud charges have started the Capitol Hill sleaze train a-rollin’ down the track and before it stops, there’s a chance that Republicans could find themselves on the outs after next year’s elections.

Abramoff and his partner Michael Scanlon are accused of influence peddling on a truly herculean scale. In exchange for lavish trips, dinners, (I’m sure someone will find some floozies in there eventually), and gifts, Congressmen - almost assuredly mostly Republican - gave up their vote on Indian gaming legislation. The two men ended up defrauding the Indians out of millions dollars in a complex scheme that has yet to be fully revealed but probably involves grandiose promises made by Abramoff of massive lobbying on their behalf while doing precious little in the way of actual work as well as siphoning off some of the $20 million in campaign contributions made by the Indians to conservative PAC’s.

Also, in some truly imaginative sleaze, Abramoff and another partner Adam Kadan faked a $23 million wire transfer so that finance companies would pony up $60 million which would allow them to buy a fleet of off-shore gambling boats in Florida. The scheme involved Congressman Bob Ney (R-OH) who actually went so far as to place comments in the Congressional Record that threatened the owner of the boats Gus Boulis.

What is it about politics that seems to attract these kinds of amoral people? Politics is a deathly competitive calling and the character of people who are more and more being attracted to the political culture in Washington (and to a lesser extent statehouses across the country) seem to reflect a kind of casual turpitude where venality and cynicism vie with high ideals and patriotism in a horrible mish mash of colliding special interests and grasping for power.

Are Congressmen made of the same moral fiber that their fathers and grandfathers were? Probably, but the opportunities for corruption have increased dramatically. There are many, many more lobbyists than there were even when I was in Washington 20 years ago. And every corporation worth its salt has a Washington office with a Director of Government Affairs who keeps an eagle eye on every law passed and every regulation proposed that would impact the company’s business in any way. And most of those companies (and unions of course) have Political Action Committees who are constantly evaluating and grading a Congressman’s performance, working hand in hand with the lobbyists to insure that on their issues, the Congressman is aware of who is buttering his bread come election time.

But what can you do? The Supreme Court has repeatedly ruled that campaign contributions are a form of free speech. And lobbying is also protected by the First Amendment’s “redress of grievances” clause. If you want to muck around with any of those two protections, you end up getting the kind of potential tyranny represented by McCain-Feingold and the FEC’s draconian measures against blogs. The law of unintended consequences is especially heavy in the area of First Amendment protections, something that so-called “reformers” never fail to miss. That’s why the more they reform, the more loopholes are created that the lobbyists and PAC’s are able to drive fully loaded semi’s through.

Whoever ends up being pulled down by Abramoff will represent the tip of the iceberg as far as corruption in politics is concerned. There has always been a fine line between influence peddling a campaign contributions and the fact that most of the rest of the sleaze that is a way of life on Capitol Hill and goes unrecorded - the cozy dinners, the exclusive golf games, the speeches in Aspen, Las Vegas, and other playgrounds - is a continuing blight on our system of government.

Abramoff isn’t exactly small potatoes but he does represent the tip of a very dirty iceberg. Maybe it will take a massive defeat by Republicans to get them to wake up and clean up their act. They can start by making sure that Tom DeLay doesn’t get anywhere near a leadership position even if he’s proved innocent of the trumped up charges by Texas Democratic partisan prosecutor Ronnie Earle. DeLay’s association with Abramoff stinks of the kind of fetid corruption reminiscent of 19th century cronyism and machine politics that Teddy Roosevelt fought the entire time he was President. Would that George Bush were half as brave in taking on the pleaders and hangers on who have corrupted Capitol Hill with the stench of money, greed, and power.

UPDATE

I’ll be updating this post for the rest of the day and probably into tomorrow as blogs weigh in.

Have to start with Michelle Malkin’s excellent round-up and her thoughts:

Maybe, just maybe, Beltway Republicans will finally be forced to get over their fear of challenging Abramoff pal and powerbroker Grover Norquist–not just on matters of political corruption, but on matters of national security.

Interesting take. Norquist has been too buddy-buddy with many Arab governments and individuals whose support of our War on Terror has been less than stellar. Might be time to clean the Republican party penthouse in addition to the cellar.

UPDATE 1/4

Captain Ed:

Regardless of which politicians get proven corrupt — and that means proven in court, not just allegations and indictments — both Republicans and Democrats will be well rid of them. Since the Republicans have controlled Congress for the past decade or more, we can fully expect this to ensnare more GOP politicians than Democrats. Money always finds its way to those whose power runs highest and whose ethics run lowest. And even if an honest and fair investigation and prosecution only convicts Republicans — I’m still looking forward to the housecleaning. Politicians enriching themselves on the public trust deserve to spend some quality time at Club Fed.

Well said. Dante reserved the 9th Circle of Hell for traitors to party and country. And by selling their votes for money and perks, any Congressmen caught up in the sleaze should suffer accordingly.

Betsy Newmark:

I guess that, like other scandals such as Enron, this new scandal will bring lots of calls to reform lobbying rules. Of course, they’ve tried to do this before, most notably in 1946 and then again in 1995, but such laws have been as ineffective in regulating lobbyists as campaign finance laws have been in regulating political contributions. There are already a ton of laws and regulations governing lobbyists. That is why Abramoff was investigated - because he broke laws.The tax code is full of regulations on interest groups.

Good point. What’s needed is a dose of morality not more laws and regulations..

I still haven’t come down firmly on one side or the other with regard to the legality or the necessity of the NSA intercept program. Chalk it up to a longstanding belief that just because the government is capable of doing something, doesn’t make it right…or even legal.

We still know so little about the program’s nuts and bolts that trying to resolve any legal ramifications is, well, just plain batty. I have great respect for the legal minds at Powerline, but their defense of the President’s power in this matter rests, I believe, on too many assumptions that at this point, are impossible to prove or disprove. They have done a first rate job in framing the Constitutional issues involved but their ultimate defense of the program leaves me a little cold.

In short, I want to see as many of the particulars of how the program operated as possible without revealing methodology and technological secrets that would compromise our security. What criteria was used to target citizens (or non-citizens residing here)? What criteria was used to flag any communications that were intercepted for later examination? And most importantly (something we may never find out) what were the technological impediments to using FISA to get warrants, even retroactively.

Since most of these questions cannot entirely be answered - and others relating to the extent and necessity of the program are still a total mystery - I find it puzzling that so many on the right would simply take the President’s word on this and defend the efficacy of the program without vital information that would either exonerate or condemn the Administration’s actions.

As for the left, their “arguments” can safely be dismissed as the rantings of a bunch of loons. I have yet to see a single, coherent rationale from anyone to the left of Andrew Sullivan as to why this program on its face is illegal. Sullivan is an hysteric and civil libertarian absolutist - but at least he has a rational basis for opposing the very idea of warrantless surveillance.

Others are simply mouthing nonsense. “King George” or “Bush the dictator” and even the ever-hopeful use of the word “impeachment” is, given all that his still hidden from us about the program, jaw-dropping idiocy and worse, partisan claptrap disguised as faux outrage over what may turn out to be something that is totally necessary to the safety and security of the United States.

The President himself sounds confident that he did the right thing - perhaps too confident:

“This is a limited program designed to prevent attacks on the United States of America, and I repeat limited,” Bush said before flying back to Washington after six days cloistered on his ranch in Crawford, Tex. “I think most Americans understand the need to find out what the enemy’s thinking.

“If somebody from al Qaeda is calling you, we’d like to know why.”

I’d also like to know why a known al Qaeda operative is calling someone here in the United States. What I question is does the surveillance program then sprout wings and fly to other domestic phone numbers of people who aren’t being called by al Qaeda but instead are simply caught up in the merciless technology used in intercepting terrorist communications? We already have indications that this has happened. And if the New York Times can be believed when innocents were caught up in the intercept program the safeguards put into place actually worked and little harm was done either to the victim’s privacy or the Constitution.

But again, so little is known about how the program worked that this is pure guesswork at this point. And the President has not been especially helpful in alleviating concerns about how extensive this program really is:

I think most Americans understand the need to find out what the enemy’s thinking, and that’s what we’re doing,” Mr. Bush told reporters in San Antonio as he visited wounded soldiers at the Brooke Army Medical Center.

“They attacked us before, they’ll attack us again if they can,” he said. “And we’re going to do everything we can to stop them.”

The President must feel that the legal case made by his lawyers and lawyers at the NSA is either foolproof or ambiguous enough that he would be in no danger of being impeached for domestic spying. The question that will be answered over time will be is the President whistling past the graveyard in this belief or is it grounded in the law and precedent.

The fact that no one knows this makes both defenders and detractors of the President look a little silly. Even this story yesterday about a DOJ underling who balked at reauthorizing the intercept program (and was blogfodder for lefty sites) can easily be dismissed as a bureaucrat who realized that the program would someday be made public and wanted no part in getting involved in the messy details. This is a far cry from a principled stand against tyranny which was the meme coming from lefty sites but you have to admit, it doesn’t sound quite as good.

All in all, the Administration has some explaining to do. The fact that the President seems confident about both the necessity and legality of the program may give comfort to some. But for me, I remain something of a skeptic on the subject.

As we are constantly reminded by liberals themselves, the left in this country is made up of “reality based” citizens, people who are grounded not in faith but in reason and rationality. We are also told that liberals are the smartest, the most compassionate, the fairest, and the sharpest among all of us. In short, liberals are simply “Good” with a great big capital “G.”

Of course, if they are indeed “reality based” we never seem to get an explanation as to why belief in New Age nostrums like the magic properties of pyramids, or talking with animals, or belief in astrology all seem to be part of the cultural hooey propagated by the more enlightened leftists among us. I guess “reality” has its limits even for liberals.

That said, one thing the left has been very good at these past years is mind reading. Also, remote viewing. And have you ever met a liberal that doesn’t exhibit many of the same characteristics of a fortune teller? They themselves think that they have unquestioned psychic ability. But given their track record in political soothsaying as well as divining the future of Iraq, the best one could say is that the jury is still out on that one.

Take your average lefty. The soon-to-be-replaced Armando at Daily Kos will do. Here’s one liberal who has used his extraordinary second sight to condemn the NSA intercept program before any of the details regarding exactly how it works have been made public:

We are not debating “how much power we should cede the White House.” There is no debate. The Constitution provides for that. Last I looked, no one has proposed a constitutional amendment.

On Bush’s illegal domestic warrantless surveillance, no one is debating how to “strike a balance between civil liberties and national security.” That debate is the Patriot Act debates - the previous one in 2002 and the current one raging.

Indeed, there is no real debate about the Bush Administration’s illegal acts. No serious person is adopting or defending the nonsensical views of John Yoo and Dick Cheney that the War on Terror has made Bush King. The defenses are preposterous and everyone who knows a little bit about the subject knows there is no serious debate.

If my stockbroker had this kind of soothsaying ability, I would be rich beyond the dreams of avarice.

The phrase that really jumps out at those of us who are members of the non-reality based community here is “illegal domestic warrantless surveillance.” The fact that no determination has been made that it is “illegal” (in fact, the Justice Department, lawyers at NSA and the FBI, as well as White House lawyers all concluded the program was legal), or that it targeted solely “domestic” entities (in fact the program targets foreign subjects who communicate with people in this country), or that the entire intercept program was “warrantless” (in fact, no one knows jack crap about this aspect of the program), and that it was a “surveillance” program (no one knows jack crapola about the technical details so that saying it was a surveillance program is just plain guessing) - all this can mean only one thing; Armando should get in immediate contact with the James Randi Educational Foundation and agree to submit himself to scientific testing regarding his psychic abilities. The Foundation will give:

a one-million-dollar prize to anyone who can show, under proper observing conditions, evidence of any paranormal, supernatural, or occult power or event.

By my own calculations, Armando has shown evidence of having psychic ability, remote viewing acumen, attributes of a soothsayer, and perhaps even a knack for palm reading. These powers may not be unusual among liberals which is why Armando isn’t bragging about them. But for the rest of us mere mortals, it’s like, you know, magic!

Maybe Armando will give me the name of a good liberal stockbroker. I could use some help after all that dough I invested in Air America….