December 31, 2005

Investigating the leak... and reporting about it in the NYT.

The Justice Department has started to investigate the leak of classified information about the NSA surveillance program:
"The leaking of classified information is a serious issue," said [White House] spokesman, Trent Duffy.

"The fact is that Al Qaeda's playbook is not printed on Page 1, and when America's is, it has serious ramifications. You don't need to be Sun Tzu to understand that," he said, referring to the Chinese warrior who wrote "The Art of War."

The president last week denounced in strong language the leaking of information about the agency's program, saying: "My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy."
I'm linking to the NYT and quoting its article, even though the NYT is the place where the leaked information first appeared. It is a special challenge to them to report the investigate well, and we shall see how well they report it. The author of the article, David E. Sanger, does a good job, I think, even if he gives prominent place to quotes that lamely say that investigating the surveillance program ought to predominate. Here's Anthony D. Romero, executive director of the American Civil Liberties Union:
"President Bush broke the law and lied to the American people when he unilaterally authorized secret wiretaps of U.S. citizens... But rather than focus on this constitutional crisis, Attorney General Gonzales is cracking down on critics of his friend and boss. Our nation is strengthened, not weakened, by those whistle-blowers who are courageous enough to speak out on violations of the law."
And here's Marc Rotenberg, the executive director of the Electronic Privacy Information Center:
"[T]he priority at this point for the Department of Justice should be the appointment of an independent prosecutor to determine whether federal wiretap laws were violated" by the security agency program, not the leak inquiry.
Sanger does call attention to the leak investigation in the Valerie Plame case, which tends to refute Romero's implication that the President is only concerned about leaks as a way to get at his critics. (I wonder if those who screamed loudest about the Plame leak and national security are equally outraged about this new leak?) Sanger also quotes Tom Devine, legal director of the Government Accountability Project, "a nonprofit law firm that defends whistle-blowers," saying that "his group would not object to a limited investigation of the leak of classified information":
"But if they do a blanket witch hunt, which I fear, ... it would trample all over good government laws" intended to protect government workers who expose wrongdoing.

"The whole reason we have whistle-blower laws is so that government workers can act as the public's eyes and ears to expose illegality or abuse of power."
Sanger offers a neutral-sounding account of the newspaper's role in leaking the information:
The administration first learned that The New York Times had obtained information about the secret eavesdropping program more than a year ago and expressed concern to editors that its disclosure could jeopardize terrorism investigations. The newspaper withheld the article at the time, and the government did not open a leak investigation at that time, presumably because such an inquiry might itself disclose the program.

The newspaper did additional reporting and eventually decided to publish the article despite the continuing objections of President Bush and other top officials.
Why? Naturally, we crave more information here, but Sanger's inability to offer it does not undermine his report. The Times is part of the investigation, and Sanger can only tell us: "Bill Keller, the newspaper's executive editor, declined to comment on the leak investigation."

UPDATE: If you came here from Crooked Timber and want my response to the scurrilous things that were said about me there, it's here.

103 comments:

Jake said...

The leak investigation should be widened to find the group of CIA bureaucrats who are attempting to overthrow the government with disclosures of secret anti-terrorist measures.

PatCA said...

"Declined to comment"? What is he hiding, what does he know and when did he know it, bring on the Special Prosecutor!

Someday I would like to hear from Romero what he agrees with in government's prosecution of the WOT. Anything?

gj said...

I understand the objections to the leak, but what is the appropriate course of action for a government official who believes that he has knowledge of a serious violation of the law by the highest levels of the executive branch of the government? Just suck it up?

Saying that something was necessary for prosecuting the WOT does not make it so. There needs to be a place for accountability by the executive branch at some point. Where is that point? Does it only occur once every four years? And other than that, the President gets carte blanche because we are "waging a war"? Does it matter that this is an unconventional war, where there's no enemy who can surrender, and so no real possibility of ever declaring victory and returning to the peace time rule of law?

Ricardo said...

Any military officer, football player, or White House staffer can tell you that although playing "defense" will keep you from getting too mauled, only generating a good "offense" can actually win the game.

Ann Althouse said...

This offense is richly deserved.

Jake said...

gj:

"what is the appropriate course of action for a government official who believes that he has knowledge of a serious violation of the law by the highest levels of the executive branch of the government? Just suck it up?"

One problem with your statement is that the programs disclosed by the traitors in the CIA have been in place for decades and have been tested in the courts. Everyone in the CIA knows that.

Thus they had only two purposes for their disclosures.
1. Overthrow the government
2. Enable the Al Qaida to murder millions of Americans.

Jacques Cuze said...

I wonder if those who screamed loudest about the Plame leak and national security are equally outraged about this new leak?

There is absolutely no reason to be equally outraged. Libby and Rove's actions in Plame were as Judge Tatel and as each judge who provided oversight agreed, that of the government taking revenge against a classic whistleblower. The NSA surveillance leak is also a case of the classic whistleblower, protecting the public against an overreaching government taking illegal actions. And Alberto Gonzalez' actions to investigate the whistleblower and not the crime will rank up there with Bork's actions in the Saturday Night Massacre.

Ann, just what were you doing in your 20s when your actual education should have been taking place?

Ann Althouse said...

"There is absolutely no reason to be equally outraged."

There is reason to be more outraged, because of the actual damage to national security. Ever think about that?

Ricardo said...

Programs such as this, really have two components: the technological "capability" to conduct them (which can take decades to develop, and put in place); and the political or administrative "intention" to begin them and direct their focus. While I see value in institutionalizing a system of whistleblowing to expose run-amuck intentions, I don't feel the same about allowing anyone to expose the capabilities which are a vital part of our national security infrastructure. How to allow one to happen (whistleblowing on the alleged illegal motives or intentions of governmental perpetrators), while not allowing the other to happen (revealing national capabilities) seems to be a key issue that will have to be examined.

Jacques Cuze said...

Quick post while getting my daughter's bath ready.... but...

There is reason to be more outraged, because of the actual damage to national security. Ever think about that?

A) None of us at this point know of the actual damages caused by either leak.

B) We do know that Judge Tatel and others said the Plame leak was very serious. So serious that though he wanted to let Cooper and Miller off the hook, that he couldn't.

C) We do know that Bush has claimed the NSA leak targeted thousands of people with a history of blowing up churches and trains. But we also know we haven't heard of any such arrests, which after Moussaousi and Padilla and the Marin Taliban dude and Reid and the prof in florida and the lackwanna 5 is somewhat odd.

D) We also know that Bin Laden was hardly surprised to find the NSA is trying to intercept his phone calls. (That's probably why he uses PGP)

E) We still haven't found Bin Laden

F) The Administration has known about the NSA leak for over a year -- why are they only investigating it now?

G) Bush definitely knows who the Plame leaker is, or could have found out -- he has chosen not to

H) Bush claimed he wouldn't go after the NSA leaker.... Flippity, Floppity. As usual, trust Bush at your own peril.

G) You are trying to change the subject. The point stands, the NSA surveillance is almost certainly illegal, and it's leak to the public is in fact, the definition of the classic whistleblower.

As a Constitutional Law Professor, why don't you explain to your readers the history of whistleblower protections.

Rinse, Lather, Repeat.

Ann Althouse said...

Quxxo: "As a Constitutional Law Professor, why don't you..."

Since you're short on time, try skipping the usual crap.

PatCA said...

"There is reason to be more outraged, because of the actual damage to national security."

That's the thing--the Bushitler dogma denies that there is a serious threat to national security, so that derails the debate. The two sides haven't even agreed on the underlying assumptions yet.

Kenny H. said...

Funny how the Bush White House is anxious to investigate this leak, but not the Valerie Plame leak.

Also, "actual damage to national security"? Where? Where's the proof of that? Are we to just assume there is some critical info Bush could not have received without side-stepping the Constitution? Perhaps the ability to initiate a wiretap, then have to show a judge why it's needed is too much of a burden. Of course, this is the same administration that failed to take any action on the warning "Bin Laden Determined to Attack Inside the United States," so I doubt this demonstrably incompetent administration would know how to act anyway. We've seen their response to the worst disaster since 9/11, that of Hurricane Katrina, and it was to fall flat on their collective face.

Kenny H. said...

"Since you're short on time, try skipping the usual crap."

-- well played... if you're in the third grade.

ronin1516 said...

Investigate the "whistleblowers" in the CIA,NSA, DIA and all ather spies-r-us intel agencies. Also slap a RICO-type inditement on the ACLU, AmnestyInt, and HRW and all other left-leaning NGO, that seems hell-bent on makingit difficult to carry out the War on Islamofascist terror. One begins to wonder where these folks loyalties lie.

The Mechanical Eye said...

"Since you're short on time, try skipping the usual crap."

-- well played... if you're in the third grade.


Perhaps, but quixxo's m.o. is to throw the 'as a constitutional law professor, you ought to...' phrase at almost every occasion, to the point where people roll their eyes and scroll past his comments so as to avoid the usual droggel.

The same can be said, on either side of any debate, when someone says "funny how..." Especially when they continually throw out (up?) the same tired points over and over.

David53 said...

I am still unsure why people believe the intelligence collection in question is unlawful. I am a former military member who was involved in a variety of collection efforts from the 1970s through the 90s. The majority of the people who are front-line collectors are members of one of the armed forces. Operationally they take orders from their respective branch of service but receive their tasking from NSA. NSA mandates that anyone who collects communications intelligence must be intimately familiar with United States Signals Intelligence Directive 18 (USSID 18). This USSID is declassified and is considered the operational counterpart of FISA. It explicitly states that the Attorney General of the United States can unilaterally authorize the collection of communications to, from, or about US persons IF the purpose of the collection is to acquire significant foreign (terrorist) intelligence. If this is illegal activity then we have been breaking the law since at least the Carter Administration with full knowledge by each and every Attorney General since then.

PatCA said...

Kenny, they have cooperated in both investigations. Who cares whether they were "anxious" enough? Maybe Bush should smile more at press conferences.

The "proof" that you're demanding will only be available in hindsight, as in the case of 9/11. If the FBI and security agencies had not been separated and hindered, perhaps they might have connected those dots. But the law at that time did not allow them to. Perhaps, too, if Clinton had had the moral courage, he could have told us who really attacked the WTC in '93 and done something about it, like passing a Patriot Act. Yet no one attacks his handling of an attack. Why?

The loyal opposition attacks the government for failing to stop the attack and at the same time for trying too hard to stop another attack. Which is it, should we connect the dots or prove the danger only after the fact?

miklos rosza said...

quxxo cuts to the chase by demonstrating his usual skillful debating technique of ad hominem insult (as in "where were you in your 20s when your actual education should have been taking place?")

I guess such moments give him a kick. "He shoots, he scores."

Everyone's dumber than you. In your dreams.

Ann Althouse said...

David53: Thanks. It's things like that that underscore why I do not use my position as law professor to make pronouncements about the legality of the surveillance. The law here is complicated, and opponents of the President are trying to spin it as simple and obvious.

DCWilly said...

It is highly unfortunate that quxxo included a childish and utterly uncalled for taunt in his post, because it gave folks a convenient (and understandable)excuse to ignore some of his points. That said, Ann, I don't understand something. You have made it abundantly clear of late that you will refuse to opine on complicated issues outside of your expertise (e.g. surveillance issues). Yet, you have no problem stating that the national security ramifications of the NSA leak(s) completely overwhelm those of the Plame leak. Please admit that when you make such a pronouncement you are speculating about an area in which you have no expertise. Or else please tell us what credentials you have to identify and rank the consequences to national security of various types of leaks to the media. Lots of people in the know think the consequences of the Plame leak are incredibly severe.

Seven Machos said...

How is it that "whistleblowers" blew the NSA's cover but the people who blew the cover of Valerie Plame (if she had "cover") were NOT whistleblowers? Why is one about revenge and pettiness the other about high-minded principle?

There is a clear meta-narrative at work here that people on the left (and some on the right) are clearly following. You can be for whistleblowing, and thus support whoever "outed" Plame and NSA. You can be against whistleblowing and thus be against whoever "outed" Plame and NSA. It takes a very clever mind, indeed, to be for one "outing" but against another.

Finally, I note that Brewster-Jennings and everyone at the CIA have not caught Bin Laden, just like NSA. Nor did they predict the fall of the USSR, September 11, or anything else. So how can moonbats say that Plame matters but NSA doesn't because Osama lives, (which is what somebody above gurgled)?

Sloanasaurus said...

"....but what is the appropriate course of action for a government official who believes that he has knowledge of a serious violation of the law by the highest levels of the executive branch of the government? Just suck it up?..."


gj has a point here. I think if abuse is found out about the wiretapping, such as unreasonable wiretapping of domestic political opponents, or intentional wire tapping of domestic persons with no reasonable connection to terrorism, etc... then it is a real case where the whistle blower should be protected.

However, if there is no abuse, if the program (that Congress was already informed about) turns out to be limited to spying on incoming and outgoing communications with suspected terrorists, then the leakers committed a serious crime and are not whistle blowers. They are traitors.

Whistleblowing as not a protection for the disagreement with a policy.

Seven Machos said...

"Whistleblowing as not a protection for the disagreement with a policy."

This is exactly right, and it's exactly the issue here.

brylin said...

gj: You ask "what is the appropriate course of action for a government official who believes that he has knowledge of a serious violation of the law...?"

First look at the Inspector General Act of 1978 (Public Law 95-452).

But specifically with respect to NSA, look at Title VII of Public Law 105-272 (it's near the bottom), entitled the Intelligence Community Whistleblower Protection Act of 1998.

The procedure is clearly set forth therein. Summarily, use the Inspector General, then Congressional Intelligence Committees.

Maybe this job opening is for someone concerned about allegations of illegal activities at NSA.

brylin said...

Here's the Washington Post story, with a couple of law professors quoted.

Jacques Cuze said...

When Ann is interviewed on NPR, it is not as J. Random Blogger. When Ann is introduced, it is not as J. Random Blogger. People look to her opinion and judgment based upon her title, "Constitutional Law Professor Ann Althouse."

Ann profits daily on her elite position in society as a Professor (and most likely as a Doctor) of Law. And she profits in her blog as "Formidable law blogger Ann Althouse" and part of the "Law Blog Ad Network"

As someone that society gives a great deal of deference and respect to as a professional and as an educator, she has certain ethical responsibilities the rest of us do not.

If she is going to offer comments on the Administration, she should make it very clear when she is speculating, when she is not, when she has studied the issues, and when she has not, and when what she writes is partisan, and when it is not.

I do not expect her to be balanced. And no one can be objective.

I do expect her to be respectful of all sides, not to pretend her adversaries have good arguments, and not to ignore those arguments.

Mike said...

quxxo: "...the NSA surveillance is almost certainly illegal..."

I just don't know who to believe, quxxo or Cass Sunstein? I'm so confused. http://www.radioblogger.com/#001248

Jacques Cuze said...

I just don't know who to believe, quxxo or Cass Sunstein?

That's right! I don't think anyone should just believe me. I am just a software engineer working in aerospace and defense. I have pretty much the typical American education and experience.

I think us Americans can understand the issues and make our own judgments when the issues are fairly laid out for us by those of us with the specialized domain knowledge and the historical context.

That is exactly what I ask Ann to do when I encourage her as "Constitutional Law Professor..."

In the meantime, Professor Sunstein and since clarified his point of view. And many other lawyers, some of whom are professors, senators, congressman, and many from the right, have entered the debate disagreeing with Sunstein, including Orin Kerr, Warren Rudman, Arlen Spector, Bob Barr, Glenn Greenwald, Marty Lederman, Mark Kleiman, and others, including of course, Armando.

Don't believe me.

And question authority.

Mike said...

Sunstein link no longer good. Try this: http://www.radioblogger.com/archives/december05.html#001248

brylin said...

Quxxo, assuming arguendo that "NSA surveillance is almost certainly illegal," this doesn't exempt the leakers from following the procedure in the Intelligence Community Whistleblower Protection Act of 1998. There is no protection from prosecution for leaks to the New York Times.

And addressing your argument that this surveillance is illegal, to be fair, the U.S. Supreme Court has not specifically addressed this issue. See footnote 20 of United States v. United States District Court, 407 U.S. 297 (1972), where the majority said: "For the view that warrantless surveillance, though impermissible in domestic security cases, may be constitutional where foreign powers are involved, see United States v. Smith, 321 F. Supp. 424, 425-426 (CD Cal. 1971); and American Bar Association Project on Standards for Criminal Justice, Electronic Surveillance 120, 121 (Approved Draft 1971, and Feb. 1971 Supp. 11). See also United States v. Clay. 430 F.2d 165 (CA5 1970)."

Since the Supreme Court has not ruled on warrantless surveillance where foreign powers are involved, reasonable people may differ as to their personal opinion regarding the legality of these activities.

Jacques Cuze said...

I do expect her ... , not to pretend her adversaries have good arguments

No need to pretend, I do expect her not to pretend her adversaries DO NOT have good arguments. They do.

Mike said...

quxxo, can you provide a source for Sunstein's clarification?

Mike said...

Never mind, I found it. Will read later. I have a hockey game to go to!

brylin said...

Sundstein's latest is here.

Ultimately, the only opinions that may be controlling are those of the nine Justices, if the case reaches them. Everyone else is just speculating.

Jacques Cuze said...

He has clarified it (but hasn't really changed his opinion.) Follow Armando's link, Armando links directly to it and discusses i.

The leakers in this case may need to follow some procedure -- I do not know the status of the Whistleblower Act you refer to, or how it has been amended or interpreted or who it applies to, etc.. I do note that the Act itself calls for the IG to determine if the complaint is reasonable or credible and to take certain actions. Though Gonzales is investigating the leak, he doesn't appear to be determining if the complaint is reasonable or credible.

Who does Gonzales represent? The people or the President himself?

I don't know what it means to say that the Supreme Court has not specifically addressed this issue. Kerr, Lederman, and Greenwald all tell me that that doesn't matter, what does matter is that Congress specifically did.

I think it is a bogus cop-out of Professor Althouse to tell us that she thinks X, but that since she has not studied the issues, she is not going to acknowledge Y, or agree that Y may be reasonable.

Anyway, time to do one girl's nails, and pick the other up from her playdate.

brylin said...

Quxxo, read sections 701 and 702 carefully. Under 5 U.S.C. App. sec. 8H(d), if the employee is not satisfied with the IG he may submit his complaint directly to the congressional intelligence committees. (The links I gave above are current law from the U.S. Government itself.)

Kerr, Lederman and Greenwald are giving you their opinion. These opinions are just that, opinions. Not binding on anyone. If the Supreme Court renders an opinion it is binding.

Just curious as to what kind of software you develop. Is it database stuff, or real programming like C++? Computer programming used to be a hobby of mine.

Thersites said...

Whether the program in question is constitutional is an open question.

But it was clearly illegal -- and for the chief executive to deliberately break a law passed by Congress is obviously unconstitutional. The enemies of the Constitution who pretend otherwise are just spinning. Disgustingly so.

Thersites said...

There is reason to be more outraged, because of the actual damage to national security. Ever think about that?

Yeah, terrorists might now suspect they could be wiretapped. Brilliant point.

Zock said...

quxxo> he uses PGP

How do you know bin Laden uses PGP?

brylin said...

Thersites: If the Constitution is the highest law in the land, then if the President has the Constitutional authority, say under under Article II, to eavesdrop where foreign powers are involved, then wouldn't the law you imply (passed by Congress, e.g., FISA) be unconstitutional?

Maybe I don't follow your logic.

brylin said...

Thersites: Protection of "sources and methods" has been the standard in intelligence gathering for many years. Regarding human intelligence, if a source is revealed, the source may be executed and no further information will be forthcoming. As to signal intelligence, once a method is revealed, that method becomes unproductive.

Evidently you don't feel that there is an "enemy" or that he poses a significant threat. Many of us feel otherwise.

Jacques Cuze said...

There is in fact, no evidence that Bin Laden used PGP (or steganography), these are just two widely spread myths the government has used to crack down on encryption technologies and to try to force weak technologies with back doors.

(As to what I have programmed over the years, apart from commercial systems, it has been what you call "the real stuff, as in systems that have gone into Air Force fighters (and AWACS), Navy ship defensive systems, Army communications systems, as well as tanks and helicopters. That I and many of my fellow developers in aerospace over the years have been very liberal and libertarian in their views while building the best offensive and defensive systems for the country is why I laugh with the silliness of the argument that Evidently you don't feel that there is an "enemy" or that he poses a significant threat. Many of us feel otherwise. That is just a smear. Call liberals, democrats and anti-war conservatives traitors. That is a vicious smear, completely illogical, and with no evidence behind it. But I can see how it would make you feel good and help keep you from having to pay attention to the dissonant facts.

brylin said...

Quxxo: A smear? I was responding to Thersites' "enemies of the Constitution" statement. Many of us feel that Al Qaeda is a much more significant threat than the Bush Administration. Is that a slander to you?

Journalist Kathleen Parker has it just right in her latest column, "Spies Like Us." Don't you think?

Ann Altmouse said...
This comment has been removed by a blog administrator.
brylin said...

Quxxo: Did you have a chance to go back and re-read sections 701 and 702 of the Intelligence Community Whistleblower Protection Act of 1998? Do you see my point about having access to the congressional intelligence committees?

Congress seriously considered potential abuses and weighed them against the harm of intelligence leaks. They set up a system to handle potential abuses without allowing sensitive information to be released.

Thersites said...

If the Constitution is the highest law in the land, then if the President has the Constitutional authority, say under under Article II, to eavesdrop where foreign powers are involved, then wouldn't the law you imply (passed by Congress, e.g., FISA) be unconstitutional?

Very interesting, but stupid. The president does not get to make such decisions on his own say-so with no oversight, and anyway, if it were the administration's determination that such were the case, then he had FOUR YEARS to seek a lawful remedy. But he waited until his sorry ass was exposed in the NYTimes.

brylin said...

Thersites: In our system of government the Supreme Court has the final say, and they haven't yet spoken.

What do you think of Kathleen Parker's column?

Thersites said...

Evidently you don't feel that there is an "enemy" or that he poses a significant threat. Many of us feel otherwise.

Grow up. The scheme the administration came up with violated the law, and he didn't seek lawful remedy, just went forward full steam ahead. There are always threats. And there are always laws. Are you such an abject coward and fool that you think screeching the word "terrorism" allows the executive branch the power to do whatever the hell it wants? Glad you weren't around in 1776...

And don't go pontificating about Congressional intent for one statute and then completely trashing it in the actually relevant instance. BUSH BROKE THE LAW. To say that he had no other option than to do so for FOUR YEARS is inane.

Thersites said...

In our system of government the Supreme Court has the final say, and they haven't yet spoken.

Yeah, that's why no law is ever enforceable until it gets to the SC, you nitwit.

brylin said...

Thersites: Screaming (in capital letters) BUSH BROKE THE LAW?

Are you the judge? Have you read Marbury v. Madison, 5 U.S. 137 (Cranch) 1803? Here's a summary.

So Bush is more of a threat than al Qaeda? How so, specifically?

brylin said...

Thersites: And no comment on Kathleen Parker's column?

Please stop the namecalling. We are trying to have an intellectual discussion here, right?

Aspasia M. said...
This comment has been removed by a blog administrator.
brylin said...

Thersites: You said "Yeah, that's why no law is ever enforceable until it gets to the SC."

If Bush broke the law, who is going to stop the warrantless NSA eavesdropping of foreign powers ordered by the President?

Sloanasaurus said...

After all this time, its a mystery as to what law Bush broke? Lets see.... Suspected terrorist in Pakistan calls person X in United States. NSA wire taps the call....seems reasonable to me. Okay how about Person Y in the United States calls suspected Terrorist in Pakistan.

Where is the law that is broken? Is there a law against the President listening to international calls taking place with our enemy without a warrant? Umm... that answer is no. Can Congress require that the President get a warrant to listen to international calls.. Hmm, that would be NO.

Thersites said...

Please stop the namecalling. We are trying to have an intellectual discussion here, right?

In the sense that I'm telling you that you are talking crap. You have the eggs to get pious about "namecalling" when you come up with obnoxious, puerile, misleading garbage like "Bush is more of a threat than al Qaeda?"? The president broke the law, meathead. And you want to rationalize it. You're a sorry excuse for an American.

If Bush broke the law, who is going to stop the warrantless NSA eavesdropping of foreign powers ordered by the President?

That's the whole point, Chester. The president is saying he has neither check nor balance. And you have a dopey sense of "foreign powers" here...

Sloanasaurus said...

"...Are you such an abject coward and fool that you think screeching the word "terrorism" allows the executive branch the power to do whatever the hell it wants? Glad you weren't around in 1776..."

I'm so scared. It sucks that the government is actually trying to protect us.

Thersites said...

After all this time, its a mystery as to what law Bush broke?

Nope. He broke the Foreign Intelligence Security Act (FISA). And he could have had this program and done it lawfully in 2001, but didn't.

YOU think the president of the United States can all by himself declare that it is "wartime" and then pick and choose what laws he wants to obey. You're a coward and a fool and no American. Go back to 18th century England, Tory.

brylin said...

Thersites: Back to namecalling with "meathead, sorry excuse for an American, Chester, dopey, coward and a fool," etc. Let's have some insightful thoughts, not the mud-slinging, OK?

And, again, who is to stop the warrantless NSA eavesdropping of foreign powers ordered by the President?

You call it illegal, you moan and groan, but isn't the Supreme Court where this will be decided? Read Marbury v. Madison, linked supra. Until then, the surveillance continues, right?

brylin said...

And, for the third time, do you have any comment on Kathleen Parker's column?

brylin said...

From Marbury v. Madison, 5 U.S. 137, 178-79:
"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and he constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply."

brylin said...

To continue from Marbury:
"Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions-a written constitution, would of itself be sufficient, in America where written constitutions have been viewed with so much reverence, for rejecting the construction."

Thersites said...

And, again, who is to stop the warrantless NSA eavesdropping of foreign powers ordered by the President?

Again, you idiot, that's the whole point.

Take Marbury out of your ass and read FISA.

No, I'm not going to read Parker's column. She's a moronic hack and life's too short.

brylin said...

"You can lead a horse to water but you can't make him drink."

You can lead Thersites to caselaw (Marbury) or good discussion (Parker) but you can't make him read. More Thersites namecalling: "idiot, moronic hack,... ."

Hey Thersites, how are you persuading the undecideds? Look at Rasmussen. You're losing, bigtime!

Thersites said...

Marbury is irrelevant, BTW, because while final interpretative authority may lie with the SC, that hardly means that every law raises interpretive questions that the SC will take. Otherwise, the SC would comment on every fucking law Congress passes. That is obviously not how the system works.

You might as well be posting Betty Crocker recipes. If Congress passes a law that says "you can't expose your nuts in court" you don't need John Roberts staring at your sack to tell you how the law should be interpreted.

brylin said...

Losing it a little, bit, aren't you? What about the undecideds?

brylin said...

Come on, we're not talking about "every xxx law," we're talking about who is going to stop the warrantless NSA eavesdropping of foreign powers ordered by the President?

How is this surveillance to stop?

Thersites said...

Hey Thersites, how are you persuading the undecideds? Look at Rasmussen. You're losing, bigtime!

Are you ill? Rasmussen decides legal questions now? And did Rasmussen use the key word "illegal," which was clearly the case?

You can lead Brylin to water but you can't pull his head out of his ass.

brylin said...

Tick, tick, tick, meanwhile the surveillance continues, unless Thersites figures out a way to stop it.

brylin said...

Thersites quote: "I'm not going to read... ."

Thersites said...

Come on, we're not talking about "every xxx law," we're talking about who is going to stop the warrantless NSA eavesdropping of foreign powers ordered by the President?

You don't know FISA. Admit it.

Thanks for admitting you were being silly in citing Marbury.

Your question is simply dumb.

brylin said...

I guess this is no longer an intellectual discussion.

brylin said...

I don't think I've called you even one name. Let the readers decide.

Happy New Year, Thersites. Really.

Thersites said...

Tick, tick, tick, meanwhile the surveillance continues, unless Thersites figures out a way to stop it.

A system where the president can reinterpret or ignore the law according to his personal whim, and nobody can stop him, is tyrrany, you imbecile. That's WHY WE HAVE A SPEARATION OF POWERS.

I really think much of the problem afflicting Bush supporters is that they are simultaneously ignorant and stupid.

brylin said...

"God bless you, and God bless America," said George Bush.

brylin said...

A final quote from Marbury:
"[A] law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument."

Sloanasaurus said...

"....Nope. He broke the Foreign Intelligence Security Act (FISA). And he could have had this program and done it lawfully in 2001, but didn't...."

Actually...your wrong. I know you wish it were true. But, alas. Bush did not break this law.

Besides, how is it possible that Congress could pass a law preventing the President from spying on a foreign power? How ridiculous. Thus, either FISA law does not encompass this or the law is unconstitutional.

Sloanasaurus said...

"..You're a coward and a fool and no American. Go back to 18th century England, Tory...."

Ouch that hurts...to be called a Tory in times like these.

Maybe you should go consult your little Red Book.

Syl said...

That's WHY WE HAVE A SPEARATION OF POWERS.

LOL

Yep, hysterical types are stickin' it to the Executive.

Syl said...

thersites

BTW, speaking of separation of powers, who is the check on the Legislative during wartime? Do you think a war should be conducted by committee?

On the other hand, Congress controls the purse strings. They could simply shut down the NSA.

Funny, though. I don't think they will. The top democrats knew about this program all along and didn't make a stink until the article came out. Strange, isn't it? And Rockefeller, surprise, found a CYA memo in his magic safe.

The program will continue. And the leaker will be caught and punished. Technically those who confirmed the program to the Times and gave further details are just as guilty. I don't know how finely meshed the net will be.

Thersites said...

Besides, how is it possible that Congress could pass a law preventing the President from spying on a foreign power? How ridiculous. Thus, either FISA law does not encompass this or the law is unconstitutional.

See? The problem is that you're ignorant to a profound degree. Your conception of how the Constitution works is simply bizarre.

Thersites said...

BTW, speaking of separation of powers, who is the check on the Legislative during wartime? Do you think a war should be conducted by committee?

How on Earth are either of those questions relevant to.... anything? If you're not talking about the actual law, you're talking crap.

miklos rosza said...

Wow, Thersites has persuaded me. Just like in "Plan 9 from Outer Space" when that guy went into his rant of "Stupid! Stupid! Stupid!"

It's great stuff.

brylin said...

We even had a cameo appearance of Altmouse in this thread!

John(classic) said...

Anyone who says that the NSA program is "clearly legal" or "clearly illegal" based on the statutes is either someone with an executive position at NSA and detailed notes who is breaking the law, or is unable to read and reason.

FISA, by virtue of its matrix of factors in the definition of "electronic surveillance" is a very detailed, operative fact oriented statute. What kind of communication, between whom in terms of legal status and location, intercepted where by what means, and with what approvals are all factors that have to be known to express a conclusion about the statutes applicability.

As a small for instance, FISA makes whether the communication is a wire or radio communication a pertinent factor. A communication on a cable is not necessarily a wire communication, however, unless the cable is that of a common carrier. Most submarine cables are not operated by common carriers. Without knowing which submarine cables and whether there is a "device" doing the interception and where it is, one is unable to make a determination.

Those who reason carefully, such as Prof. Kerr, almost always caution that their analysis is dependent on assumptions about unknown factors.

"Clearly" just doesn't belong in any discussion of FISA's statutory applicability to facts that are not known in detail.

Bruce Hayden said...

As usual, things have gotten side tracked here. The original question was about investigating the leaks of the NSA evesdropping. And it has repeatedly pointed out that there are legal avenues for whistleblowing, that don't include the NYT.

Remember that final scene in the Clancy "Clear and Present Danger" movie where Hans Solo (sorry, Indiana Jones - whoops, Jack Ryan) testifies before that precise Senate committee. That was what was happening: Whistleblowing in the prescribed way (CIA vs NSA, but same idea).

The Plame leak has been investigated at the cost of millions of dollars. Why should this leak be exempt from that investigation?

An argument can be made that this leak is worse than the Plame leak (after all, she was riding a desk at Langlely at the time). And this potentially disclosed our intelligence capabilities, which the Plame one did not. (Yes, the opposite argument can be made, and has been, above).

So, what distinguishes this disclosure from the Plame disclosure (if there acctually were one, which is still not proven)? That it was putatively illegal behavior by the NSA? But then, the obligation of the employees who did disclose this information would be to follow the prescribed whistlelowing procedures (at least first - if they didn't work, then let's have that debate, but that is not where we appear to be).

Or is it that the Plame leak hurt the left, and the NSa leak hurt the Addministration?

Bruce Hayden said...

I think that what those trying to hijack this thread are trying to obscure is that the one crime that is most likely to have been committed is that of disclosing classified information. Yes, maybe the NSA actions did too, but as pointed out by John (classic), we don't have enough information to know that for sure, and as pointed out, even if it did putatively violate FISA, arguments have been made by the Administration that it was still legal.

Back to the point. The one clear violation is that of the disclosure of classified documents. Why should that be legal here, given that there is no NYT exception to the relevant statutes, etc.?

A post today at Powerline.com points out that this has been accepted behavior since at least the Pentagon Papers. But should it be, esp. given that you then have civilians in the end deciding what to disclose, and not those elected or hired to do so?

In the end, I think that the intersection of these two scandals is going to result is a crackdown on leaking, as, IMHO, it should. What gives some CIA, NSA, etc. employee the legal right to decide that this specific classified information should be disclosed, regardless of the laws, etc. to the contrary?

Bruce Hayden said...

Let me add that the accepted cost of civil disobedience is paying the price. If the argument is that the disclosure of classified information was a result of conscience, you have classic civil disobedience, and the leakers should be willing to come forth and pay the prescribed price, including, of course, the jail time.

PatCA said...

"Let me add that the accepted cost of civil disobedience is paying the price. "

Hear, hear. Everyone nowadays seems to forget that an "act of conscience" must also be an act of courage for it to have any meaning whatever.

John(classic) said...

The big problem with the media making determinations about the balance between security and oversight is that the media are ignorant.

As an example, when the Pentagon papers were published they had a section of "Soviet Reaction". Some of the material in that came from what was one of our most secret sources -- satellite interception of Brezhnev's car phone. By knowing the information, it could be possible to track back to the leak.

The NYT and Ellsberg were presumably both unaware of this. Maybe it would have made no difference, but the point is that they are incompetent to make rational security/right to know decisions because they are ignorant of all the factors.

The same is true of any low ranking individual who decides that for reasons of conscience, revenge, or whatever, he should leak what he knows.

John(classic) said...

I think the fact that the NYT has not reported that there is a statutory procedure for whistleblowers in the NSA already tells us much about how balanced their coverage of the leak investigation will be.

Prometheus said...

What information was leaked? That intelligence services were monitoring e-mail and telephone traffic? – Knew it already. That the monitoring sometimes involved U.S. persons? – Knew it. The only thing “new” was that the president was authorizing it unilaterally, circumventing provisions provided under FISA.

As I recall the facts as they had unfolded, the story about possibly illegal wire tap authorized by the POTUS had been "leaked" to the NYT more than a year ago. Usually the Justice Dept. takes breaches of classified information very seriously and investigates immediately. So why has it take a year to open this particular investigation? Is it possible that it is because opening this investigation is more about spin and frantic damage control than legitimate classified information concerns? Is W wagging the dog? – playing politics with national security? Like a young child caught in a lie, this administration seems to be flouting a lot of half-bake stories like the time constraint issue and “only spying on terrorist”, etc. that on closer examination don’t really hold water. Something stinks in Denmark. It’s the little lies that tell the big truths.

Bruce Hayden said...

Prometheus

Don't know. But maybe it was because the information seemed to be contained, and that an investigation would do more to publicize the information than doing nothing.

Add to that that if there is an investigation of the disclosure of classified information, it most likely will be a result of pressure from some of Mr. Bush's base to hit back. A lot of them have been frustrated at the ability of the Democrats and the MSM at changing the topic from Joe Wilson's lies and deceits to that of who outed his wife (their view - it was Wilson's fault she was outed). (And you and I can debate the Wilson kerfuffle for the forseeable future without convincing each other or anyone else here, so let's not even try).

Point though is that a lot of those who put Mr. Bush in office see this as payback and a chance to maybe start to cleanup the Washington system of strategic disclosure of classified information to news organizations for personal political reasons that has been going on since at least the Pentagon Papers. It has always been illegal, but has been winked at now for decades. But for the last couple of years, much of it has been aimed at damaging the President, the putative and legal head of the agencies for which those leaking the information work.

Your point that nothing new was disclosed is maybe not quite accurate. Yes, many have known for quite awhile that the NSA listened to a lot of international traffic. This may have disclosed some additional capabilities on the margins, esp. maybe some of what was actually being monitored and how.

Your suggestion that nothing new was disclosed sounds to me like arguing that the Chinese didn't steal any of our secrets during the Clinton Administration (or it didn't matter) because they already knew how to make nuclear weapons and missle delivery systems. Never mind that ours are better, and theirs are better now too, thanks to the stolen secrets. In other words, sometimes the specifics are important too.

Also, prior to the disclosure of this program, there was always the question of how likely it was that a specific conversation between a suspected terrorist overseas and someone in the U.S. was being monitored, given the apparent warrant requirements. Yes, a warrant could be obtained. But arguably, this could be avoided by moving the U.S. contact side of these conversations around enough. It is now obvious that that potential strategum is unlikely to work. And that is potentially helpful information to our enemies.

Prometheus said...

Wrong. The truth is that there is a legal requirement that all compromises (that is – someone without clearance has knowledge of it or someone with a clearance has improper knowledge) of classified material must be investigated as soon as possible, an assessment made of the potential impact of the compromise to national security and all custodians of that information notified of the breach. From any National Guard armory to the office of the POTUS, any compromise is treated exactly the same. This is just more wishful thinking on your part. It’s the little lies that tell the big truths.

David53 said...

prometheus---all compromises have to be investigated as soon as possible? Is that one of the little lies? I think the intell world is larger than you suspect.

I can't speak for Bush's motivations, but I do know that often terrorists aren't as smart as people think they are. Yes, IMO this leak may cause them to change their operational procedures.

PRS-nyc said...

"I wonder if those who screamed loudest about the Plame leak and national security are equally outraged about this new leak?"

This is an apples to oranges comparison of two wildly different acts. The exposure of Plame was designed to damage an outspoken critic of the administration, damage to national security (and to Ms. Plame) be damned. The exposure of secret taping was designed to bring to light CONDUCT which the tipper thought (correctly, I might add -- and I am not on the fringe in thinking so) violated both the Constitution and an act of Congress, not to being completely inconsistent with the President's speechifying that no such taping was being done without court approval. To compare them is sophistic legerdemain.

Professor Booty said...

I am consistently amazed by what the blogosphere reveals about the law faculties of this nation's public universities. You have Volokh and Reynolds literally endorsing the use of torture as a part of capital punishment (not to mention as part of getting fake information out of innocent Iraqis), John Yoo saying that the President is the law, and Althouse with one hilarious crapload of nonsense after another. My personal favorite, of several months ago, remains her "shoot brown people first, ask questions later." And no, I don't feel like digging up links for any of these, but I'm sure most of the blognoscenti know the posts to which I'm referring.

I know you can't fire someone with tenure, but surely there is something to be done.

Professor Booty said...
This comment has been removed by a blog administrator.
Ann Althouse said...

Professor Booty: That's a flat lie about me and you know it.

Dominion said...
This comment has been removed by a blog administrator.
Justin said...

So let me get this straight.

The leaker shouldn't have leaked because members of Congress were informed, and that was sufficient to determine its legality.

The leaker might be one of the four members of Congress who were informed.

O...kay.

Dominion said...
This comment has been removed by a blog administrator.
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