Right Wing Nut House

The Department of Justice will investigate leaks to reporters that led to the series of articles by the New York Times and others on the top secret NSA program to intercept communications from al Qaeda to their operatives and sympathizers here in the US:

Justice prosecutors will examine whether classified information was unlawfully disclosed to the New York Times, which reported two weeks ago that the National Security Agency had been conducting electronic surveillance on U.S. citizens and residents without court-approved warrants.

The probe is the latest in a series of controversial investigations into leaks of classified information during the Bush administration, including the disclosure of a CIA agent’s identity that has resulted in criminal charges against former vice presidential adviser I. Lewis “Scooter” Libby.

A “series” of investigations? Two investigations hardly constitutes a “series” of anything but it was the only way for Post reporter Dan Eggan to get the Plame investigation and Scooter Libby’s indictment mentioned in the same sentence. The proprieties of partisanship must be observed at all times at the Post, dontchya know.

The wheels of justice may also start to grind away for Post reporters who broke the story about no-longer secret CIA prisons overseas:

The Justice Department has also opened a probe into whether classified information was illegally disclosed to The Washington Post, which reported on a network of secret CIA prisons in Eastern Europe and elsewhere.

The disclosure of the domestic spying program by the NSA, which is normally confined to overseas operations, has setoff a firestorm of criticism from civil liberties advocates and prompted plans for hearings on Capitol Hill. The secret program has also angered some judges on a special court that is supposed to oversee clandestine surveillance within the United States, including one who submitted his resignation.

Will the career prosecutors and investigators at the Department of Justice dig into this investigation and carry it out with the sustained vigor and intensity it deserves? Or will they simply go through the motions and tiptoe around the press as they normally do, fearing the anger of the editorial boards of the New York Times and Washington Post?

In order for this investigation to succeed, they will need the wholehearted cooperation of the National Security Agency. And given the leaking proclivities shown by Department of Justice bureaucrats during the Plame investigation, they may feel some trepidation in giving too many details of the intercept program (or who may have had access to the information in the first place) to prosecutors to assist them in their investigation.

I am frankly not very hopeful that much will come of this investigation. The DOJ has never been very aggressive in the area of national security leaks to the press, seeing it as a First Amendment issue rather than a national security one. And unless some kind of link can be found in some of the leaks, I doubt whether a Special Prosecutor could be appointed.

I’ve always wondered why rival reporters don’t try and find out who the other fellow’s source is, especially when an investigation is being carried out. The clique of national security reporters in Washington is actually pretty close, sharing information and sources on several stories.. It makes me wonder if some of them don’t actually know who the other guy’s source is for a story, in which case it would be an incredible scoop to report on it.

I guess that just wouldn’t be the polite thing to do. But doesn’t that ring a little hollow when the security of the country is being compromised?

Just wondering…

Fallout continues from the New York Times hit piece on the NSA intercept program as now the defense lawyers for terrorist suspects want to know if their clients were caught up in the government’s digital dragnet:

Defense lawyers in some of the country’s biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.

The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out.

The expected legal challenges, in cases from Florida, Ohio, Oregon and Virginia, add another dimension to the growing controversy over the agency’s domestic surveillance program and could jeopardize some of the Bush administration’s most important courtroom victories in terror cases, legal analysts say.

To say that this was a predictable outgrowth of the New York Times leaking the top secret NSA intercept program is an understatement. In fact, since the Times sat on the story for a year and thus had ample time to examine all the potential consequences of publishing the information, one can only come to the conclusion that the paper’s editors wanted to throw a great big monkey wrench into the Administration’s efforts to not only monitor terrorists but prosecute them as well.

As David Ignatius points out in this Washington Post Op-Ed, the spin given to the NSA program was designed to put it in the worst possible light while omitting pertinent facts that would have given much needed perspective to the story:

We know only the barest outlines of what the NSA has been doing. The most reliable accounts have appeared in the New York Times, the newspaper that broke the story. Although the headline has been “warrantless wiretapping,” the Times accounts suggest the program actually was something closer to a data-mining system that collected and analyzed vast amounts of digitized data in an effort to find patterns that might identify potential terrorists.

As I pointed out here, the use of the inflammatory term “wiretapping” is a misnomer. The act of wiretapping is illegal without a warrant and involves actually listening in to the conversations of the person being targeted. The intercept program instead probably scooped up massive amounts of data using computer algorithms to identify key words and voices and then may have cross referenced any “hits” with information in private data bases like credit card companies and airlines. How this amounts to “wiretapping” in any but the most partisan mind is a mystery.

Ignatius also outlines the problems for the Fourth Amendment purist critique of the program:

The legal problems, as Arkin suggests, involve the dots — what digital information can the government legitimately collect and save for later analysis, and under what legal safeguards? As it trolls the ocean of data, how can the government satisfy legal requirements for warrants that specify at the outset what may only be clear at the end of the search — namely, specific links to terrorist groups? These and other questions will vex lawyers and politicians in the coming debate, but they aren’t a reason for jettisoning these techniques.

The Times story answers these questions by showing how terrorist defense lawyers will exploit the leak of the classified program:

At the same time, defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the N.S.A. program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used. They acknowledge legal hurdles, including the fact that many defendants waived some rights to appeal as part of their plea deals.

Government officials, in defending the value of the security agency’s surveillance program, have said in interviews that it played a critical part in at least two cases that led to the convictions of Qaeda associates, Iyman Faris of Ohio, who admitted taking part in a failed plot to bring down the Brooklyn Bridge, and Mohammed Junaid Babar of Queens, who was implicated in a failed plot to bomb British targets.

David B. Smith, a lawyer for Mr. Faris, said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Lawyers said they were also considering a civil case against the president, saying that Mr. Faris was the target of an illegal wiretap ordered by Mr. Bush. A lawyer for Mr. Babar declined to comment.

By seeking this kind of information, the lawyers for suspected terrorists will see to it that as many details as possible about the program come to light. Many of them have already proven that they will flood the courts with motions, some of them frivolous such as the motion filed on behalf of a Guantanamo inmate alleging that the prison library didn’t carry a certain book. If allowed to do so, the lawyers could tie these cases up for years.

This brings us back to the questions surrounding the intercepts themselves and the reasons for not seeking warrants in the first place. As I pointed out yesterday, the Federal Intelligence Surveillance Court (FISC) was giving the Administration a hard time regarding many of the requests for warrants. In fact, after going some 22 years with never turning down or even modifying a warrant request, starting in 2002, the FISC court flatly turned down 4 or 5 warrants outright and modified 179 others. The reason may have to do with the mechanics of how the government goes about getting a warrant from FISC.

An amendment to the law authorizing the FISC contained in the Patriot Act stipulated that at least 3 judges on the panel would have to live within 20 miles of Washington. This may reflect problems in the past with expediting the process of getting a warrant. And the FISA act mandates that the government present its case to one judge only - they cannot take “two bites of the apple” by simply walking it down the hall and presenting it to another judge.

Why are these two facts relevant. The judge most likely to be “on call” and therefore the one most likely to preside over the bulk of the warrant hearings was none other than the judge who recently resigned from the FISC court, James Robertson.

And herein may lie the reason why the Bush Administration decided that FISA needed to be bypassed in order to safeguard the country.

Robertson, a holdover on the FISC from the Clinton era, has a resume that reveals not only strong liberal (and Democratic Party) credentials but also a purists approach to the Bill of Rights.

In fact, Judge Robertson was in the forefront of the civil rights movement in the 1970’s, certainly a noble calling for which he should be commended. He served as Chief Counsel of the Lawyers Committee for Civil Rights Under Law. He was also President of the Southern Africa Legal Services and Legal Education Project in the 1980’s. For political connections, he was employed by Wilmer, Cutler, and Pickering which is one of the top Democratic party law firms in Washington.

An impeccable pedigree for someone serving on one of the most liberal District Courts in the Country - the US District Court - District of Columbia. But is this someone with the judicial temperament to serve on a court that by its very nature skirts a very fine line between civil liberties and the needs of government to protect us from attack?

I am sure Judge Robertson is an honorable man. But could a myopic view of terrorism and the terrorist threat have hindered the Administration in its efforts to prevent terrorist attacks? An attitude that terrorists are criminals may have in fact permeated most of the FISC court in which case, the judges may have been looking for justification for warrants based on probable cause regarding criminality rather than preventing terrorist attacks.

This may be where the real divide exists between those who see the searches as a gross violation of the Constitution and those who believe it was necessary to safeguard America. It may very well be that the FISC court was not able to make the intellectual and psychic transition from a court charged with oversight of government actions regarding criminals to one whose mission was to allow the government significant leeway in its efforts to prevent another attack. And if this were the case, the Administration’s actions in bypassing the FISC court make sense.

Whether it was truly necessary remains to be seen. But having a civil libertarian like Robertson sitting on a court where speed was of the essence and lines were blurred between terrorists and criminals could not have been conducive to getting the most out of the NSA intercept program.

Please forgive my rambling, nearly incoherent examination of the issues surrounding recent revelations regarding the Administration’s efforts to combat al Qaeda in America by using the NSA to intercept and analyze calls from American citizens. My problem should be shared by all since we know so very little of the technical aspects of the NSA intercept program.

Of course, that doesn’t stop the left from wringing its hands and screaming “impeachment” and “dictatorship” at the top of its lungs. They can safely be ignored in any serious treatment of the issues involved because, let’s face it, they are not serious people. They are a joke to all but the most self deluded, self righteous, and self destructive. Not only are they not serious about this issue, but as they have made abundantly clear for more than 3 years, they are massively unserious about the War on Terror. They do not believe we are at war nor do they believe al Qaeda and other terrorist groups are the existential threat that they have proven to be over the years. Every move made to counter the threat has been criticized with such screeching obscurantism that listening to them has become something of an exercise in migraine management. They have become a splitting headache that nothing can relieve.

There are indeed thoughtful critics of this program - people with the best of intentions who question the entire domestic surveillance apparatus in its totality and wonder if indeed, the President of the United States has gone too far in trying to protect us. They base their arguments on the law and on precedent - two things for which yours truly has not the knowledge nor the training to comment on intelligently. However, like you I have my own thoughts about human nature and the relationship of citizens to their government. And this leads to a question the answer to which may ultimately decide which way I come down on this issue.

Did the President bypass the FISA court because it made his job easier or was it necessary in order to get the maximum benefit from the intercept program?

The consequences inherent in that question should be obvious. Either it was or wasn’t necessary for the President to order the warrantless searches. If it wasn’t necessary, there may in fact be grounds for impeachment - or at least a serious examination of the issue. If it was necessary, the argument should be over. For in his role as Commander in Chief, no one can seriously argue that the President is precluded from doing what is necessary to protect the country. If I’ve gotten anything from the Constitutional arguments raging across the internet, it is that one salient point. Every wartime President has used the powers and prerogatives available to him. And herein lies one of the great strengths of the Office; it is both the strongest and weakest Constitutional office in government.

The President is not only Chief Executive who “executes” laws passed by Congress, he is also Head of State as well as Commander in Chief. The arguments that took place at the Constitutional Convention over the powers of the President were long and bitter. Jeffersonian democrats believed that a Chief Executive was unnecessary, that Congress was perfectly capable of executing the laws they promulgated. Federalists were having none of that argument having just endured several years of rudderless government under the Articles of Confederation which had no separate office of Chief Executive and substituted instead a Committee of Congress to exercise executive powers.

The fascinating denouement to this debate was the unspoken realization by all that the person who would be exercising any expanded powers of the Chief Executive was sitting in that broiling hot room with them. George Washington had come to Philadelphia that muggy summer reluctantly because he knew that the biggest improvement that could be made to the Articles of Confederation was the creation of a single, powerful office of Chief Executive. And Washington knew darn well who the delegates would want to fill that office. This colored the debate over executive powers dramatically as every time a proposal was made to expand the powers of the Presidency, delegates would glance over at Washington as if to reassure themselves that the old general would shoulder the burden of office reluctantly and therefore, would not usurp the authority of Congress or the people. Washington’s self conscious reticence about exercising power was legendary especially after he became one of the few conquering generals in history to lay down his sword and return home without becoming a dictator.

Reassured by the fact that Washington would be the first President, the Convention adopted language that made the Presidency the most flexible of Constitutional offices and unlike any other, relied on the character and decency of the office’s inhabitant to practice self restraint in light of the enormous power granted by them.

Washington did not disappoint. He was extraordinarily careful, realizing more than most that any action he took would be seen as precedent for others to follow. Hence, he wrestled mightily with the exercise of his first veto which occurred on an apportionment bill. The reason he vetoed it was because he thought it unconstitutional - a judgment he believed was the only basis to veto any law Congress passed. His decision to step down from the office after two terms was also taken to make the point that the United States was a country governed by laws not be men.

The point is that both the Constitutional Convention and Washington himself were gravely concerned about the exercise of executive power, seeing a strong executive as a threat to individual liberty and to congressional prerogatives. And over the years, the Supreme Court became the chief brake on the expansion of those powers as successive courts have sought to define the most ill defined office spelled out in the Constitution. They have tried to place limits - with varying degrees of success - on what a President can legally do, even during a time of war.

They have tried to make the President’s job more difficult. Generally speaking, this is a good thing. By placing obstacles in the President’s path to unfettered power, a rough balance is maintained between the various branches of government. In the case involving NSA intercepts, the obstacle the President must navigate is the FISA court, a 1978 invention of Congress that was created to safeguard American citizens’ Constitutional rights from the emerging technical wizardry becoming available to government that allowed unprecedented intrusiveness by government agents into private communications.

But the world tends to move much faster than Congress and the Court’s ability to keep up with it. If anything has become clear regarding our efforts to keep track of al Qaeda for the last 15 years, it is that they have a disturbing ability to circumvent or defeat our efforts to glean information from them through national technical means. In short, their ability to stay hidden has put pressure on our system of checks and balances because the law has not kept up either with the technical abilities of government to snoop or our enemy’s ability to avoid detection.

And here’s where both thoughtful critics and defenders of this intercept program part company. The basic argument against the President’s authorizing this intelligence operation for warrantless searches is that it was unnecessary, that either the law could have been changed or the warrants could have been effected retroactively. The White House has said that the law couldn’t be changed without taking a chance that the entire program would have been compromised (a pretty good bet given how many blabbermouths there are on both sides of the aisle). And as far as retroactive warrants the White House seems to be all over the lot, first saying there was no time to get the warrants and then saying that the President had the authority anyway.

The truth is we just don’t know whether the technical details of the program will reveal that the White House did not have time to retroactively get warrants for searches or whether they just decided to bypass the FISA court because it was easier in the long run and didn’t want to take the chance that the court would deny them the opportunity to listen in on communications they felt were vital to national security.

Did the White House have cause to believe the FISA court would give them trouble? This article in the San Francisco Chronicle reveals some of the problems the Administration had with the court in the past:

Government records show that the Bush administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court’s approval.

A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than the four previous presidential administrations combined.

The court’s repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to begin secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, according to James Bamford, an authority on the security agency that intercepts telephone calls, e-mails, faxes and Internet communications.

What is fascinating about this article is that it reveals what may be the single most important reason for the warrantless searches; that the FISA court was more interested in the rights of people who were in direct contact with terrorists and suspected terrorists than in the safety and security of the American people:

…[T]he Bush administration had difficulty obtaining FISA court-approved wiretaps on dozens of people within the United States who were communicating with targeted al Qaeda suspects inside the United States.

“The court wouldn’t find enough ‘probable cause’ to give the Bush administration wiretap warrants on everybody that talks to or e-mails the terror suspect that they were trying to target,” Bamford said.

The 11-judge court that authorizes FISA wiretaps has approved at least 18,740 applications for electronic surveillance or physical searches from five presidential administrations since 1979.

The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court’s operation. In 20 of the first 21 annual reports on the court’s activities up to 1999, the Justice Department told Congress that “no orders were entered (by the FISA court) which modified or denied the requested authority” submitted by the government.

But since 2001, the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered “substantive modifications” took place in 2003 and 2004, the most recent years for which public records are available.

Again, without knowing the technical details of the program it is difficult to make a value judgment on the legality of it, but it would appear that the Administration’s concerns about obtaining warrants from the FISA court were indeed well founded. In fact, one could say that given the information contained in those Justice Department reports, it appears that the FISA court was either operating in a vacuum or was unaware that the United States of America was at war. Either way, the obstacles placed in the way of the Administration’s ability to spy on al Qaeda - a stateless group who uses a complex network of operatives, sympathizers, financiers, and fanatical soldiers - puts the NSA intercept program in an entirely different light. Given that the most seemingly innocuous contact could lead to preventing a massive attack on the US, it is beyond comprehension that any contact no matter how innocent appearing it may be should not have been grounds for immediate action by the government, including a warrantless search.

Where you come down on this issue then will depend on whether you believe we are in a war for survival or in a battle with stateless criminals who don’t pose a real threat to our destruction. It seems clear that the FISA judges believe the latter.

In short, it appears that the reason for the warrantless searches was not because it made the President’s job any easier. The reason could very well have been the inexplicable foot dragging by FISA which necessitated the President’s employment of broad powers exercised in his role as Commander in Chief. Dangerous? Yes. Illegal? A qualified no. I and most others would hope that this program would not be necessary. By the same token, we could all wish this war were not necessary either. But given that our enemies will not vouchsafe us the second, it may be that we must reluctantly embrace the first.

In a way, one of the basic criticisms by the left of the President’s actions is absolutely true; he couldn’t trust the FISA court. Was this one more example of Washington partisanship run amok? We’ll probably never know. But given the exigencies of war and the options open to the President when he made his decision to authorize the warrantless searches, it will be difficult to prove that the President’s actions were not justified.

Several media aspects of the NSA intercept story - and the political use of them - have been bothering me for days.

First, has anyone else noticed the strange juxtaposition of the words “massive” and “wiretapping” whenever a columnist, reporter, or blogger writes about the NSA intelligence operation? From what has been released so far (and this may change as more revelations from the top secret program are eagerly released by the press) it appears that a very, very small number of Americans have had their communications directly monitored and that apparently all of these people (with the exception of a very small number of people who were mistakenly caught up in the dragnet) were either in direct contact with the enemy or the enemy’s sympathizers and agents. In other words, the “massive” number of communications that have been intercepted have never been examined by human eyes or ears. No human being has been aware that they even exist.

Can a computer violate our Fourth Amendment rights?

More to the point, is this wiretapping?”

The legal website NOLO defines wiretapping thusly:

Eavesdropping on private conversations by connecting listening equipment to a telephone line.

Please note the term “listening equipment.” The intercept program cannot itself “listen in” on conversations or read emails. By its very definition it only snags very specific communications and places them aside for later analysis. And, from what this article implies, it appears that any study of the intercepts is largely confined to traffic analysis - a useful tool in uncovering terrorist networks.

So far, there has been precious little released that would fill in the gaps of our knowledge of how this program actually works which would lead any sane person to the conclusion that people who are either criticizing and defending this program are blowing smoke out of a hole where the sun don’t shine. About all that can be said for certain is that the only thing “massive” going on is exaggeration in the numbers of people who have actually been “wiretapped.”

I asked a similar question regarding the FBI-DOE program to monitor private businesses and houses of Muslim Americans for a specific radiation signature that would indicate the presence of nuclear material.

It is legitimate to question the legality of programs that actually snoop on people – physically read their email or listen to their phone conversations. But if your telephone number is caught up in some kind of digital dragnet being carried out by the NSA only to be sloughed off and forgotten within minutes after it becomes clear that you’re not a terrorist, what’s the big deal?

Reading liberal commenters (and even some libertarian absolutists) I am worried that, somehow I’m missing something important in this debate. Are we paying too high a price for our liberty to have our telephone number or email intercepted by a dumb brute of a computer in service to the government? I am willing to listen to arguments to the contrary but how can this be a threat? Take the following into account and then tell me where this “grave threat” to civil liberties is occurring with this program:

* There is no evidence that political opponents of the Administration have been targeted.

* There is no evidence that anti-war protesters are having their emails and phone calls monitored in any way by this program (domestic surveillance may be another issue altogether).

* There is no evidence that the program is being used to blackmail anyone.

* There is no evidence that the government is using this program in any way, shape, or form to gain any kind of a political advantage for the Administration.

* There is no evidence that innocent Americans are being deliberately targeted by this program. Even critics acknowledge that the mistakes made by NSA employees when purely domestic to domestic communications are intercepted are immediately corrected.

If the real argument here involves a slippery slope - that giving the government an inch they will take a mile - I’m sorry, but I don’t buy it. If this were indeed some kind of massive intrusion by government into the private lives of innocents that would be one thing. But the program just seems to make sense. Al Qaeda is based overseas. In order to carry out attacks against us, they have to send their operatives over here to do so. And if the terrorists (who have access to professional expertise in both Pakistani and Saudi intelligence) are constantly trying to defeat our efforts to discover their plans by using sophisticated technical means and other methods of concealment, doesn’t it stand to reason that such a program is vital and necessary?

I realize this post has been all over the map on this issue. I wholeheartedly agree that some aspects that have been revealed so far are open to debate as to both their legality and constitutionality. But until someone can show me how this is 1) a “massive,” intrusive violation of our Fourth Amendment rights and 2) that there has been large scale “wiretapping” of innocent Americans, I am going to hold my fire and await further information before either outright condemnation or support.

As it stands now…let’s wait and see.

I’m having a very difficult time this morning maintaining my composure. Well, let me put it this way - a harder time than normal. The reason is this latest kerfluffle over pointing scientific instruments at the homes and businesses of Muslim Americans in order to see if someone may be harboring nuclear material that could or could not be a nuclear weapon. The joint task force made up of FBI and Department of Energy “NEST” teams conducted the monitoring without first getting a warrant:

In search of a terrorist nuclear bomb, the federal government since 9/11 has run a far-reaching, top secret program to monitor radiation levels at over a hundred Muslim sites in the Washington, D.C., area, including mosques, homes, businesses, and warehouses, plus similar sites in at least five other cities, U.S. News has learned. In numerous cases, the monitoring required investigators to go on to the property under surveillance, although no search warrants or court orders were ever obtained, according to those with knowledge of the program. Some participants were threatened with loss of their jobs when they questioned the legality of the operation, according to these accounts.

Federal officials familiar with the program maintain that warrants are unneeded for the kind of radiation sampling the operation entails, but some legal scholars disagree.

I will take a back seat to no one in my support for the Bill of Rights - ALL TEN OF THEM. Liberals usually like to stop at about #8. After all, the 9th and 10th Amendments limit the power of the federal government vis a vis the states and the people which is a total anathema to your average lefty. Come to think of it, liberals aren’t very supportive of the 2nd amendment and even several parts of the 1st - like freedom OF religion. In fact, looking at a liberal’s translation of the Constitution, it would probably appear very similar to one of those documents requested of the CIA under the FOIA; so much of it would be blacked out that about all you’d be able to read is the page number.

That said, what has me breathing fire this morning is the idea that, in order to prevent the greatest of catastrophes - a nuclear weapon being exploded on American soil - people actually want the government to get a warrant to aim a Geiger counter at someone’s house. This is nuts. This is lunacy. This is as close to suicidal as one can get without actually putting the gun to your head.

I guess we’re really in trouble now. The Constitutional absolutists (I’m beginning to include some of the more pompous libertarians out there who are starting to annoy me more and more every day) are acting as if this is some kind of gigantic abstract game we’re playing. I can assure you that al Qaeda is not playing games. And the people who are currently responsible for seeing that the last thing you see isn’t a bright flash in the sky followed by the sighting of a mushroom shaped cloud are, thank the Lord, not playing games either.

What is not serious is this spate of revelations regarding what the government is doing to prevent the destruction of the United States. What is not serious is this internet-wide hand wringing over what appears more and more as a sensible, rational, response to a threat posed by an enemy that has sworn to destroy us - or perhaps many of you have forgotten that salient fact.

And the next person that quotes Ben Franklin’s warning about security and liberty is going to get a pie in the face - or my boot up their ass. Ben Franklin didn’t have to worry about a goddamn nuclear weapon going off in Philadelphia while he was romping between the sheets with some harlot. He could afford to be smug. We can’t.

It is legitimate to question the legality of programs that actually snoop on people - physically read their email or listen to their phone conversations. But if your telephone number is caught up in some kind of digital dragnet being carried out by the NSA only to be sloughed off and forgotten within minutes after it becomes clear that you’re not a terrorist, what’s the big deal? Jesus Christ! Telephone solicitors keep your number longer than the NSA for God’s sake!

We still don’t know many details of the NSA intercept program. Apparently, they had the cooperation of Telecom companies who allowed the technospooks access to these “switches” where national and international calls can be intercepted:

Officials in the government and the telecommunications industry who have knowledge of parts of the program say the N.S.A. has sought to analyze communications patterns to glean clues from details like who is calling whom, how long a phone call lasts and what time of day it is made, and the origins and destinations of phone calls and e-mail messages. Calls to and from Afghanistan, for instance, are known to have been of particular interest to the N.S.A. since the Sept. 11 attacks, the officials said.

This so-called “pattern analysis” on calls within the United States would, in many circumstances, require a court warrant if the government wanted to trace who calls whom.

With pattern analysis, there is no reason to physically listen in on or read your email unless there are some pretty good indications that you’re buddy-buddy with a terrorist. How can this be considered unreasonable? Only a muddle headed absolutist would insist on getting a warrant to analyze traffic patterns or have your telephone number briefly in some gigantic computer or aim radiation detection equipment at a home.

Can we afford the Constitutional absolutist position on these things?

Maybe it comes down to something much simpler - whether you really believe we are at war or not. If we are not at war or even if the threat to the US has been overblown for political purposes (either case being demonstrably untrue if you take the time to read what our enemies are saying) then by all means, impeach Bush. In quieter times - even during the cold war - I would have had a difficult time stomaching much of what has been revealed about our domestic spying over the past week.

But these are not quiet times. And if the government is forced to abandon these vital monitoring programs or more likely, thanks to their being revealed, al Qaeda counters them, and if we are hit with a massive attack, those who are currently clucking their tongues like a bunch of old women at a quilting bee better not open their yaps criticizing the efforts government made to prevent the catastrophe. Your high falutin sense of the Constitution will be meaningless in the face of tens of thousands of dead and the country in shambles.

It’s time to grow up and get real. After all…there’s a war on, remember?

This article originally appears in The American Thinker

At what point does a citizen’s right to an expectation of privacy end and the compelling interest of government to protect us from disaster begin?

To those who pretend the question is an easy one - right or left - a pox on you. This issue is much too serious to have liberals using the New York Times as a weapon in their hysterical war on sanity. Nor do my friends on the right cover themselves in glory by being so dismissive of what, at the very least, is a troubling shift in policy regarding how far the government can sidle up to the line of wrongdoing without going over.

The issue is one of transcendent importance for the future of liberty in America. The potential for mischief making by the government as well as private citizens and companies is so great that if the revelations surrounding the NSA intercept program prove anything at all, it is that the law has failed to keep ahead of the rapid, almost magical improvements in the technology available to invade the sacred space that all free citizens should be able to rightly call their own.

How important is the right to be “let alone?” Here’s Justice Brandies in a famous dissent (Olmstead v. U.S., 277 U.S. 438, 478) declaring in 1928 that the writers of the US Constitution conferred…:

…the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

The key word in that statement is”unjustifiable.” When does the government have the right to violate a citizen’s Fourth Amendment rights?” After all, for a document that can at times be frustratingly vague, the Constitution gets very specific when talking about a citizen’s right to be “let alone:”

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

What the Constitution has guaranteed is a private space - or a wall if you will - that the government is prevented from trespassing against except in “justifiable” circumstances. And even in those circumstances, the Constitution is extraordinarily specific about what the government can and can’t do. If the First Amendment was designed to be a sweeping guarantee of American liberty then certainly the Fourth Amendment serves a similar purpose as a guarantee of our privacy.

Clearly the framers of the Constitution didn’t believe you could have liberty without privacy. Which brings us to the present and the capabilities of government to violate our privacy in ways that the framers or Justice Brandies could never have imagined in their worst nightmares.

The American Thinker Editor Thomas Lifson dealt with one aspect of this explosion in the government’s technological capabilities for potentially violating our privacy in an article yesterday on Radio Frequency Identification (RFID) technology. This tracking technology is becoming more obtrusive as both businesses and government find new and novel ways to use it. Lifson asks the right questions:

Despite the technology’s apparent cost and control benefits for businesses and government, the use of RFID technology raises a plethora of important legal, ethical and privacy questions that as of today remain largely unanswered. For example, what legal rights do individual U.S. citizens have if they believe their privacy has been violated by an overzealous business or government agency? How will an already overburdened court system react to the almost certain influx of RFID-related cases?

Similar questions were asked a decade ago when, without much fanfare, the FBI increased their ability to wiretap citizen’s communications substantially. The Communications Assistance for Law Enforcement Act (CALEA) on its face, would seem to be a dangerous leap in the capability of government to spy on our private communications. CALEA mandated that the telephone companies aid wiretapping by installing remote wiretap ports onto their digital switches so that the switch traffic would be available for snooping by law enforcement. After CALEA passed, the FBI no longer had to go on-site with wiretapping equipment in order to tap a line—they could monitor and digitally process voice communications from the comfort of the home office.

But this is nothing compared to the truly frightening capabilities of the National Security Agency (NSA) to capture, monitor, and even listen to the most private and personal of communications initiated by American citizens. Relying on technology that is almost magical in its ability to gather massive amounts of electronic communications and sift through them for relevant intelligence, it would seem inevitable that, even though the NSA is precluded from using this technology to spy on American soil, communications involving completely innocent American citizens would be caught up in this digital dragnet.

Although the actual workings of the technology is a closely guarded secret, the program authorized by President Bush probably uses some kind of voice recognition technology as well as something even more revolutionary; a new way to organize the data collected so that networks can be identified and uncovered. To do this kind of work, a system capable of collecting and analyzing trillions (terabytes) of pieces of information at once would be necessary. The system would flag hundreds of electronic communications at a time which may be a practical reason why the Administration wished to finesse the Foreign Intelligence Surveillance Act (FISA). Even though warrants could have been issued retroactively, the massive number of intercepts may have made that a practical impossibility.

The above is speculation, of course, because no one really knows and, unless the we’ve all completely lost our senses, no one should know. For if our enemies ever learned how the system actually worked, they could take steps to neutralize it. Even the pitifully small amount of information that has come to light could have damaged our ability to track and thwart the designs of our enemies. And herein lies the great conundrum involving our liberty and our survival.

What good comes of insuring our survival at the expense of losing some of our liberty?

If one of our cities was destroyed by a nuclear weapon smuggled into the country by al Qaeda, I daresay the relatives of the dead would answer that question much differently than the arm chair civil libertarians who so blithely condemn the Administration’s actions in the aftermath of 9/11. There are even those who say that there is no choice to make, that our survival as a nation is not at stake at all therefore any argument that includes a loss of privacy rights as a way to head off an al Qaeda attack is setting up a straw man to justify oppression.

I don’t have much sympathy for that argument but I am troubled that our government has skirted so close to the line involving spying on innocent American citizens and may have in fact crossed it. Ultimately, it must come down to a question of responsibility. You and I are not responsible for the safety and security of the United States. The Constitution has vested that awesome responsibility in the office of the President. In the end, where you come down on this controversy depends on how much you trust the occupant of that office not to abuse his authority nor misuse the frightening power our technological prowess has bestowed upon his government to invade our most private and personal spaces.

For if in fact we are in a war for the survival of our republic - and our enemies themselves have made it abundantly clear that this is what the War on Terror is all about - we are in grave danger if we give in to the temptation to turn the issue of liberty versus security into a political club in order to beat one’s political opponent for acting dictatorially or just as bad, unpatriotically. The issue is too important for the kind of lazy generalities being tossed about regarding an absolutist position on civil liberties or aiding and abetting the enemy in a time of war. In the end, we must trust each other or perish.

This compact of trust between government and its citizens has been mangled almost beyond repair both by the actions of overzealous intelligence agencies as well as a cynicism born of nearly 4 decades of Presidential misconduct. It is one thing to have a healthy skepticism involving those in power. It is quite another to automatically assume that the occupant of the White House is an evil, power mad Big Brother who would use the capabilities of government snooping for nefarious purposes. Even President Nixon’s criminal spying on political opponents was justified in his own mind as a response to what he saw as a domestic insurrection. The fact that there were tens of thousands of Americans in the streets waving the flag of an enemy that was killing thousands of American soldiers in Southeast Asia while calling for the violent overthrow of the government justified in the Nixon inner circle’s own thoughts, almost any wrongdoing that the President and his aides could imagine.

There have been no accusations against this President that the NSA wiretapping program has targeted political opponents. Instead, there have been serious questions raised about innocent Americans being insecure in their communications with each other. In short, the protections guaranteed by the Fourth Amendment have been frayed around the edges by this intelligence gathering program not trampled willy nilly by an Administration hell bent on gathering unto itself dictatorial powers in order to quash dissent or secure political advantage.

And until evidence emerges to the contrary, is there any reason not to take the President of the United States at his word that the program targets foreign terrorists and not innocent Americans? At bottom, the trust we placed in Mr. Bush by re-electing him must have at its core a belief that he is doing his best to protect us while not violating our cherished rights. This is essentially what living in a democracy means. Anything else, and we might as well crown a king or anoint a dictator to protect us. That way, we would simply do as we’re told and not have to worry about trusting anyone.

I’ll have much more to say about the right of privacy in the age of terror in an article I’m writing for The American Thinker but something the President said in his radio address today defending his eavesdropping program stuck out like a sore thumb:

This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies. Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country.

The information was “improperly provided” to the New York Times. And according to the newspaper’s story, they had been sitting on this juicy little morsel of a secret for more than a year.

First, for the President to use the term “improperly provided” regarding a leak involving the National Security Agency is a monumental understatement. The NSA has extraordinarily strict rules about things like leaks. In short, if you’re an employee and you get caught leaking, you go to jail for a very long time.

Secondly, the fact that the Times sat on this information for a year may prove that whoever the leaker was, they are probably not with the agency any more. One would think that the eavesdropping operation was so compartmentalized within the agency, that discovering the leaker - or at least narrowing the list of suspects - would be fairly easy. That is, if the leaker was from the NSA. And this opens the question of who else knew about the surveillance program. There were a few attorneys at Justice and the White House along with some high-level FBI anti-terrorist officials. And of course, some Congress critters whose inability to keep a secret is matched only by their belief in their own superior wisdom in matters of national security not to mention civil liberties issues.

My guess would be that the leak came from someone on one of the Intelligence Committee staffs. It wouldn’t be the first time and it would be logical in the context of the hyper-partisanship on Capitol Hill. This leak was meant to damage not only the program itself but the Bush Administration as well. The consequences to our national security may prove that the leaker has bitten off more than they bargained for.

It appears that Congress is about to finally take the lead and clarify the legal status of detainees who have been languishing at Guantanamo and other sites around the world in a kind of legal limbo that has been both a blot on American jurisprudence and an invitation for criticism from the international community:

A bipartisan group of senators reached a compromise yesterday that would dramatically alter U.S. policy for treating captured terrorist suspects by granting them a final recourse to the federal courts but stripping them of some key legal rights.

The compromise links legislation written by Sen. Lindsey O. Graham (R-S.C.), which would deny detainees broad access to federal courts, with a new measure authored by Sen. Carl M. Levin (D-Mich.) that would grant detainees the right to appeal the verdict of a military tribunal to a federal appeals court. The deal will come to a vote today, and the authors say they are confident it will pass.

The measure will not go far enough to appease liberals who want to treat the foreign terrorists like law abiding American citizens. And it will almost certainly trouble some conservatives who wish that the prisoners be thrown into a black hole to rot. But the compromise will solve the bureaucratic tangle that has existed between the Department of Justice and the Department of Defense who, for different reasons, have wished for such clarifying language.

One potential stumbling block is the insistence by both Senators Graham and Levin on linkage between their bill and a bill introduced by Senator John McCain that prohibits torture:

Graham and Levin indicated they would then demand that House and Senate negotiators link their measure with the effort by Sen. John McCain (R-Ariz.) to clearly ban torture and abuse of terrorism suspects being held in U.S. facilities.

“McCain’s amendment needs to be part of the overall package, because it deals with standardizing interrogation techniques and will reestablish moral high ground for the United States,” Graham said.

McCain’s bill is almost certainly drawn too broadly as evidenced by opposition voiced by Vice President Cheney who wished to exempt the CIA from its provisions. However, if a way can be found to satisfy the Administration’s legitimate concerns while still standardizing interrogation techniques, a significant victory for the rule of law will have been achieved.

It has been a national disgrace that the detainees have been held these past 3 years with their legal status up in the air. The situation was complicated unnecessarily last year when the courts ruled that detainees had a right to a hearing on their status. The resulting flood of motions - both frivolous and serious - became a nightmare for the Justice Department and DoD who had been asking Congress to clarify what rights the detainees had in this unique legal situation. The fact that both the Administration and the Republican Congress took their own sweet time in addressing the issue only gave our international foes an opening in the propaganda war.

The compromise neatly addresses the concerns of DoD in that intelligence gained from interrogations as well as the way certain information on individual terrorists was obtained either through “National Technical Means” (eavesdropping, spy satellites, etc.) or through informants will not be used in open court by activist lawyers seeking to undermine our intelligence capabilities in the War on Terror. The bill will also give the Justice Department some guidance on how to proceed with the appeals process. And incorporating some form of the McCain bill will standardize the the Army Field Manual techniques for interrogating prisoners thus putting the nation on record that it opposes the kind of interrogations that have led to more than 400 investigations by DoD into accusations of abuse with 230 determinations that have resulted in either reprimands or court martials.

All parties involved - the Administration, and the Departments of Justice and Defense - are taking a wait and see attitude toward the bill:

An administration official briefed on the compromise said yesterday that so far, neither the Justice Department nor the Defense Department nor the White House has seen a complete package to support, although there are elements to back.

Neither Congress nor the administration wants a veto fight. That dynamic is pushing the drive for a deal that will satisfy both ends of Pennsylvania Avenue.

If satisfactory language can be found in a compromise on McCain’s bill, the Congress will have made a start toward rectifying a hazy legal situation as well as a stain on America’s honor. There are still issues to resolved including the practice of “rendition” which sends some detainees to countries that practice torture as well as the recent revelations about CIA prisons that are not subject to Congressional oversight. But this bill could become the start of a power sharing arrangement on detainees between the executive and legislative branches of government, something in the interests of the country and the people.

UPDATE

Here’s a fascinating “Tale of Two Cities.” The Captain disagrees with my position on the Senate bill to define detainee rights:

It depends on the manner of the capture of these detainees as to whether they should have access to federal court and how much jurisdiction those courts should be given. Those captured in open battle against American troops, such as in Iraq and Afghanistan, should have none. We do not want to treat battlefield captures as arrests, and have defense attorneys issuing subpoenas to American soldiers for courtroom testimony.

Actually, I think the compromise takes care of the Captain’s concerns. The appeal will come after they have been adjudicated by the military so no courtroom testimony will be forthcoming. Instead, the detainee will have a judge review both his status and sentence - a measure that could protect the innocent as well as American intelligence practices.

Ed also calls it “the best retrieval possible of a bad situation.” I agree although I see it more as a start toward Congressional oversight of the entire detainee situation which is long past due.

Got this in the snail mail yesterday. Don’t quite know what to make of it except to say I’m not surprised given how much people are complaining about the response of the federal government to the recent hurricanes.

Greetings from the President:

Daryl

This article originally appears in The American Thinker

There is a school of thought that believes the idea of loyalty to one’s country is a crass, outmoded concept not worthy of consideration by thinking people. Rather, loyalty if given at all, should be reserved for nebulous and ethereal entities like “humanity” or “the family of man.” International socialism has long advocated this global view of loyalty - except, of course, when the old Soviet Union was in trouble for one of its frequent deviations from civilized behavior. It was at this point that Moscow would crack the whip and leftists from Berlin, to London, to Los Angeles would dutifully parrot the party line, excusing the brutes in the Kremlin for all sorts of very unsocialist and inhuman atrocities.

Thankfully, this view of loyalty is not shared by the vast majority of citizens in the United States. Most Americans recognize the importance of loyalty to the government during a time of war when America’s sons and daughters are in harm’s way. This has never been more evident than when looking at how we view the war in Iraq.

According to the latest polls, barely 40% of the country approves of the way that President Bush is conducting the war in Iraq. But when asked if we should pull our troops out before the job of securing the country and helping the Iraqis achieve a stable, democratic government is complete fully two thirds of Americans say no. This slap in the face to the leftist narrative of how the American people see the war in Iraq seems to have been lost on this past weekend’s partygoers in Washington whose speakers continued to insist that the majority of the people opposed the war and wished the troops to come home.

Leave it to the left to never let the truth stand in the way of a good old fashioned Soviet-style propaganda campaign.

True, there are permutations within permutations in the poll numbers. One of the more remarkable tidbits to be found in these figures is the fact that the belief that the war was a “mistake” because no mass stockpiles of WMD were found has hovered near the 50% mark for more than a year. What makes it remarkable is that even though roughly half the nation thinks going into Iraq was an error, a sizable portion of those people also believe we should stay until the job is done.

The left would point to these Americans and call them confused. I think they should be congratulated for their loyalty. What the left sees as stupidity, I see typical American common sense. Most Americans - even those who opposed going to war in the first place - realize the dire consequences of a precipitous withdrawal from Iraq. The destabilization and possible collapse of the Iraqi government would place America in great danger and would be inimical to our national interest. This fact is so obvious that it calls into question why almost all of the speakers at the anti-war rally in Washington on Saturday called for the immediate withdrawal of American troops.

To understand why one need only look a little closer at the motley collection of socialists, anarchists, anti-globalists, pan-Arabists, post modern deconstructionists, one worlders, and racialists who descended on Washington for their moment in the media spotlight. If there’s one thing the tatterdemalion left has become over these last lost years since the fall of the Soviet Union it is publicity deprived. They are absolutely starved for media attention. Even the anarchists can’t have a decent riot that hardly rates a blurb in The Guardian. Part of the problem is the fractured nature of their “coalition.” The only way they could get the kind of numbers necessary to get anyone to pay any attention to them was by inviting everyone in the world who has a grudge against America.

Hence, most of the podium speakers at the rally were not there to solely promote an anti-war agenda but rather each had their own particular anti-American ax to grind. The racialists called for an end to racism. The tribalists called for an end to capitalism. The primitives called for an end to industrialized civilization. The greenies called for an end to everything else. Yes, they all paid lip service to the anti-war message that brought them together in the first place. But their real reason for bringing their followers to Washington was to garner support from the hard-left moneymen like George Soros and leftist PR gurus like David Fenton who is currently managing Cindy Sheehan’s race toward obscurity. A few dollars here and there gleaned from the Smart Set in Washington will at least keep the mimeograph machines going and pay the rent for a few more months.

Not surprisingly, there was very little talk of loyalty. When “patriotism” was brought up, we were continually assured that yes, these were indeed patriotic Americans who only wanted to exercise their right to dissent from government. Of that, I have little doubt. The question isn’t whether they are patriotic Americans, the questions is are they loyal Americans?

The two terms are related but not mutually exclusive. Patriotism is a feeling, a “love or devotion to one’s country.” Loyalty, by definition, is an action word. It is “allegiance to one’s country” or “faithfulness to one’s government.” Many a traitor has come and gone calling themselves “patriots.” Few would agree that they were being loyal.

How does the left get around this little non-sequitur? They huffily point out that they are being loyal to the “idea” of America or “American ideals.” Since these ideals were present at the founding of the nation, it is perhaps gratifying that so many on the left have finally embraced the idea of strict constructionism - at least when it becomes a convenient explanation for their perfidy in giving aid and comfort to an enemy that is shooting at American soldiers overseas.

For that is what the demonstrators in Washington forgot to mention in all their sloganeering and speechifying; the fact that the insurgents and terrorists in Iraq have only one chance to achieve their goal of overthrowing the Iraqi government and gaining power. And that is only if America walks away before the job is done.

They are hoping that history repeats itself and America abandons an ally to its fate as a result of both timid policy makers and domestic opposition to the war. And since this hope is all that the insurgents have to go on (for they can never defeat the US military on the field of battle), leftist opposition to the war can only be judged as disloyalty. They can call themselves patriots if they want. There is no way we can look into their souls and judge their love or hate for the United States. But we can certainly judge their loyalty based on their actions - actions that have the practical affect of encouraging the insurgents in Iraq to up the body count of Americans to test the mettle of our citizenry to stay the course until the job is well and truly done.

As the democratic process in Iraq moves forward in fits and starts and the Iraqi people slowly and cautiously march toward an uncertain future that may yet include sectarian violence and other setbacks in achieving national unity, the need for our troops to stay and assist them in this historic task will remain great. And to sustain our elected leaders in this hard, slogging task with our loyalty will become more and more critical as time goes by. It no doubt is the greatest test of our fealty to the United States government that many of us will ever have. But it will be absolutely necessary for us to win through to total victory and bring our sons and daughters home in triumph.