May 27, 2006

"The very serious questions about the scope and legality of the N.S.A. domestic surveillance programs that he helped design, implement and defend..."

Senator Kennedy gave his reason for voting against General Hayden to head the CIA. But Kennedy was one of only 15 Senators who voted no. It's hard to take congressional attacks on the NSA surveillance program seriously when 78 Senators voted for him.

63 comments:

Jacques Cuze said...

Just because Congress is a bunch of lapdogs, doesn't mean they think the program is legal. It just means they are lapdogs.

Magic Bullet Arlen Spector voted against Hayden, after he rolled over for the whitehouse during Hayden's confirmation hearing.

They have literally made a career out of confirming those that they know, regardless of their suitability. Look at Ashcroft's confirmation.

Bloggers and pundits like you have made these pols scared of making any sort of statement that could be twisted by bloggers and pundits like yourself into seeming as though they are anti-national security. Didn't you just have the whole "Are democrats going to be universally anti-war?" smear post going? You get what you pay for, and what you like to pay for is a cowardly sniveling congress afraid to stand up for our rights and what is right.

It is you conservatives that demand (as in Alito, and Roberts) that the Congress support the President's choices. Now you want them to say no, and if they don't you will use that as evidence they think the NSA program was legal.

Instead of that sort of dubious deduction, why not drop a dime and call your buddy Orin Kerr and listen to what professors that have actually studied the issue have to say?

Ann Althouse said...

You're mad at me because they're pussies?

Bruce Hayden said...

Well, I will admit that Orrin seems a bit opposed to the legality of the NSA programs. In those many discussion at volokh.com, the 4th Amdt. argument never got very far. That left FISA. The Administration made the argument that the AUMF essentially amended it. I am not sure if I buy that, but SCOTUS seemed somewhat expansive in their reading of it in Hamdi. In any case, I think the better argument is that FISA, as it might apply to the first NSA surveilance program is an unconstitutional usurptation of the President's plenary Article II powers to defend this country, foreign policy, and run the military. The argument against this always gets back to the 50+ year old one Justice concurrence in Youngstown, where Jackson categorized presidential actions into three categories, and suggested that his powers were at the weakest in Catagory III when Congress has spoken. But this is readily distinguishable, esp. since that was domestic, this is international. Plus, a one Justice concurrence is not precedential. Indeed, only two of the most liberal Justices cited this portion of Youngstown in the Hamdi decision - IMHO an indication of how much the majority think of it.

So, no, the NSA program that was so discussed by Kerr at Volokh.com is not clearly illegal.

Ann Althouse said...

It seems to me that the President has a legal argument (or two or three) -- and Hayden stated it. If Congress supports the program -- and I think it does -- and the argument against its legality is purely statutory -- and I think it is -- then the right thing to do is to amend the statutory law to explicity support it. Otherwise Congress needs to gather its force together and oppose the President. It cannot expect courts to do this work. Congress has shown that it is not going to take action against the President, and for me, this is the crucial answer to the problem. Therefore, it needs to amend the statute and be done with it. If it does not, it is politics and nothing more.

Jacques Cuze said...

I am saddened with you because in one post you will reiterate bogus claims that they are anti-war and then in the post you will express surprise that they cannot stand up for themselves.

It is similar to the way you constantly pound on Hillary Clinton. I don't support Hillary, but your focus on any negative article about her while not paying any attention whatsoever to positive articles about or negative articles about her opponents says far more about your own level of intellectual honesty than it does about Hillary.

Look what happened in the past 24 hours that you chose not to blog about: Bush has made some sort of limited acknowledgement of mistakes, the NYTimes has confirmed Murtha's report that the Pentagon determined that we had fired indiscriminately on children last November, there are reports that Kissinger greenlighted the Communist takeover of Saigon, Gore is being smeared in the press again for his new movie, Bush Buddy Ken Lay is found guilty, Iran is found in 2003 to have made very serious steps toward peace with the US AND Israel, renouncing nuclear weapons and terrorism and the result is that our Swiss ambassador is castigated by Bush for bringing him the offer from Iran, and it goes on and on.

You get what you pay for Ann, and people work according to the incentives of the system.

Your blog rewards politicians and the media for acting badly and punishes politicians and the media for acting properly.

And that is why I am saddened with you.

SippicanCottage said...
This comment has been removed by a blog administrator.
Jacques Cuze said...

Otherwise Congress needs to gather its force together and oppose the President.

And when and where are they to do that? Magic Bullet Spector the Republican heads the Judiciary committee and caved in the face of opposition.

A front-page article in this morning's The Hill reports that Sen. Specter has finally made enough concessions to secure the support of the more right-wing members of the Judiciary Committee for his legislation that (along with a bill from Sen. DeWine) would render legal the NSA warrantless eavesdropping program. As part of this negotiation, what were these Bush allies (Hatch, Sessions, Cornyn, Kyl) holding out for? The removal from Sen. Specter's bill of a clause that would mandate that the FISA court rule on the legality and constitutionality of the NSA program. As usual, the thing which Bush supporters fear most - and which they most desperately seek to avoid - is a judicial ruling on the legality of the administration's behavior. As The Hill reports:

So you expect the Republican led Senate to do what the Republican led Judiciary Committee wouldn't do, and if they don't you are going to say the program is legal and opposition was all just politics.

Opposition wasn't politics, caving was politics, the politics of good press and reelections.

Since you don't study this issue or read the links that people post here about this issue, how would you know?

Perhaps if you favored courageous politicians (Dean, Reid, Feingold) instead of castigating them you would get what you want.

You should reread "The Folly of Rewarding A while Expecting B".

SippicanCottage said...
This comment has been removed by a blog administrator.
Jacques Cuze said...

It's a nice day, so I am going on a hike. You should consider something similar Slippery, lately you've had a one track mind.

Go out, grab a shiner, and consider the errors in how you construct your belief system.

Steven said...

Right, Jacques, the politicians are just quaking in their boots at the mighty pen of Ann Althouse.

But let's take your aguments and note the underlying premise:

"Democrats in the Senate think the NSA issue not important enough to take a stand against it if it might possibly cost them some votes."

Which leaves us with two possibilities. Either the NSA programs are acceptable, or the Democrats are selfish enough to sell out the peoples' privacy to win votes. If they first, the entire kerfuffle over the NSA can be dismissed as partisan noismaking; if the second, the Democrats in the Seante are corrupt traitors to the American people and should be ridden out on a rail.

Which is it, Jacques?

SteveR said...

From a non-legal, non scholarly POV, I see it basically the same way as Ann. After all the huffing and puffing, it just seems to me that by not taking any action, it is revealed as politics.

What else can I conclude?

SippicanCottage said...
This comment has been removed by a blog administrator.
Andrew Foland said...

Ann, you rather miss the point that opposition to the program is centered primarily outside the Congress.

Ann Althouse said...

No, Andrew. In the separation of powers scheme of the Constitution, this is exactly how it works. The Executive has his powers and responsibilities, and Congress has its tools, given precisely for the purpose of checking the President. Congress has chosen not to use them. The Senate, for example, could voted against General Hayden, who designed and defended the program. Congress's failure to use the checks that it has means something. This post is about pointing out that meaning. Essentially, Congress has endorsed the program.

Ross said...

The administration pretty obviously thinks the letter of the law is an obstacle to hurdled as it takes care of business. Congress doesn't care because, by and large, the American people don't care.

We're definitely on the slippery slope, but we haven't slid too far yet. As far as anyone knows, all the boundary-pushing has only affected bad guys. Give me news of a wiretap on Nancy Pelosi, on the other hand, and all hell will break loose.

(And don't talk to me about Roy Bourgeois. If you spend two decades leading protest marches that blockade the entrances to military posts, you should expect the FBI to keep an eye on you.

Ann Althouse said...

Jacques: "And when and where are they to do that?"

When they actually oppose the program! That's the point! They don't!

(Get a clue.)

SippicanCottage said...
This comment has been removed by a blog administrator.
Patrick Martin said...

According to the critics of the NSA program, General Hayden himself designed and implemented the surveillance program which they claim is of almost unprecedented unconstitutionality and a grave threat to our basic freedoms. If they really, truly believe that, then they believe he has violated the various oaths he has taken over the course of his career. This would make him, by definition, utterly unsuitable for confirmation to a new high office.

Each member of Congress who really believes that would have a moral obligation to vote against General Hayden's confirmation. Any Senator who voted in favor of Gen. Hayden's confirmation, therefore, either fundamentally supports the NSA program or is a posing, hypocritical politician. Or, as our hostess succinctly put it, a pussy.

Marty Lederman said...

Ann: As you probably know, I've been second to no one in complaining about Congress's capitulation and acquiescence in the Executive's lawbreaking, and the failure of individual legislators to respond in any meaningful way to the obvious, fundamental attacks upon Congress's constitutional role.

However, it has not been obvious to me what those in Congress who think the Administration is violating the law *can* do as a practical matter in this situation, especially when both houses are controlled by the President's party.

More importantly, I don't understand your argument at all, which appears to be (correct me if I'm wrong about this) that it's *ok* for the President to violate statutes if Congress can't get up the collective gumption to do anything about it.

You seem to agree that the Executive's conduct violates statutes, such as the torture act and FISA. Indeed, absolutely *no one* in Congress, not a single legislator, has publicly endorsed the Administration's view that the NSA program is not violative of FISA. In other words, there is *no* support for the ridiculous "AUMF authorized it" argument. I assume (but don't know sure) that you also think the Article II argument -- that FISA and the torture statute, and the McCain Amendment, etc., are unconstitutional -- is wrongheaded.

Well, ok then, in that case the President *is* violating his constitutional obligation to faithfully execute the laws. Congress already did everything the Constitution prescribes: Over a long period of time, it engaged in serious review of the problem, and after extensive debate, compromise and deliberation, enacted FISA, with the President's signature.

Our system does not contemplate that the Executive can then go ahead and violate that law as long as the votes in Congress are not there to -- what? -- reenact the same exact law over a presidential veto? Take other steps to complain about the law violation (e.g., refuse to confirm a nominee that it otherwise thinks should be confirmed)?

As you correctly note, if Congress truly thought the NSA program was a good thing, the *proper* response would be to amend FISA to authorize it. But it hasn't done so. And the fact that Congress hasn't protected its own prerogatives, either, does not mean that the Executive is absolved from responsibility for violating the law or that Congress has "endorsed" the NSA program. The Executive branch has often violated the law in our nation's history, and only on rare occasion has Congress taken it upon itself to remedy the problem. That doesn't mean the lawbreaking is no big deal, and it doesn't mean that a later Congress's silence is an "endorsement" of something that an earlier Congress prohibited.

As I've been arguing on Balkinization, the only way for these questions to be resolved in the current setting is by judicial decree. That's why I favor enactment of the Schumer bill. That obviously is not going to happen as long as Congress is under Republican control. In the meantime, the proper response, IMHO, is to condemn *both* of the political branches -- not to shrug one's shoulders and say "no big whoop."

David said...

Congress isn't going to do anything about the NSA program because a strong majority of Americans like it.

These politicians have seen the writing on the wall. The American people are circling the wagons around border security and wiretapping the bad guys.

The NSA brouhaha will fade from site at the first opportunity.

Word verification - zagkalid - one of the guys who is being wiretapped.

vnjagvet said...

Yeah, its all the bloggers' fault. Congress is afraid of the bloggers. That's the ticket.

A simpler explanation is that many legislators, like those they represent, still fear another spectacular attack by the minions of al queda. These legislators do not want to be second guessed for not doing everything they can to prevent such an attack.

That seems like a legitimate concern to me, but I suspect that jaqqx thinks that those fears are groundless.

Johnny Nucleo said...

Jacques Cooze, why are you constantly so saddened by Ann Althouse? Don't you realize that she is evil? Her goal, her purpose, is the perpetuation of evil. Your righteousness is wasted on her. She and her minions are the spawn of Satan.

Dear, dear, Jacques Cooze. This war you cannot win. Evil will triumph as it always has, as it always will. Why fight what cannot be beaten? Join us, Jacques Cooze, join us! We will give you the world. The world! Such power! Such glory! All for Cooze!

Have a nice hike. While you still can. While there are still trees. For soon, we will destroy it all!

Hail Althouse! Hail Bush! Hail Satan!

(Althouse, Bush, Satan. Abs. A lot of talk about abs lately. Everyone wants good abs. You only ever heard of abs during the reign of the pre-Antichrist, Clinton. Cabs. Cabs are yellow. Think about it.)

Steven said...

Mr. Lederman,

Actually, our system contemplates it plenty. Congress has lots of clubs to hit a President with -- including, yes, not confirming appointments. The whole point of dividing powers is to provide practical clubs to beat down overreaching.

And the big one is the power Congress has over the Presidency -- "No Money shall be drawn from the Treasury, but in consequence of Approprations made by Law[.]"

Congress can specifically deny funds to the monitoring programs of the NSA in the bill that does NSA appropriations. At that point, nobody has to debate the meaning of the AUMF or whether Congress has the power to make the Presidential power to conduct foreign intelligence surveilance dependent on the approval of the judiciary. The activity has to end, full stop.

It's bigger than impeachment and removal from office, because that just removes one man. Denial of funding shuts down anything, for as long as Congress denies it funds.

reader_iam said...

It's a nice day, so I am going on a hike.

If only jcqx WOULD "take a hike," that would be a grand day, indeed.

Hope springs eternal, and all that.

Old Dad said...

I'm no lawyer, but I can read. It seems that the legality of the NSA program in question is not clear. I've seen compelling arguments on both sides.

Ties go to the Executive.

The program is relatively popular.

So our beloved legislators realize that not only might they not be able to make the legal case, they will shoot themselves in the foot politically.

This ones DOA even if the Dems capture both houses. Hence, Hillary's nay. She's got a pander vote that she can spin with the middle. The Dem's don't want to fight this fight.

Eli Blake said...

It's hard to take congressional attacks on the NSA surveillance program seriously when 78 Senators voted for him.

Being supported by even a wide majority of Congress or the Senate does not mean that this program is good, or right.

The Missouri Compromise of 1820 had wide support throughout the Senate despite the fact that it extended slavery farther north than it ever had been before. And it only delayed the inevitable by forty years, and made it much more bloody when it did come.

Other examples of votes which had widespread support in the Senate include Prohibition, the Gulf of Tonkin resolution and the October 2002 Iraq war vote (yes, some people still support the war, but I suspect that if the Senators knew we'd still be fighting there in 2006, there would have been significantly more than the 23 'no' votes, maybe even enough to defeat it-- well, perhaps not; it was an election year ploy, the public had been stampeded and we well know that the U.S. Senate is a place with very plush seating because they need a place to rest their weak backbones.)

The Hayden nomination doesn't rise to the significance of any of these votes, but your assertion that because something has the support of 78 Senators, that therefore any opposition to it should not be taken seriously or may not even perhaps be visionary, is flawed.

Eli Blake said...

old dad:

The Dem's don't want to fight this fight.

That is why a lot of us Democrats out here are disappointed.

I realize that the Democrats are the minority party in the Senate, meaning they have to pick their fights carefully, but even when it really mattered and even had the support of a couple of Republicans and might have gotten more if they'd hung together (Alito) they wimped out.

That's one reason why I have more respect for Ted Kennedy than I do for Hillary Clinton. Say what you will about Ted Kennedy (and yes, the worst thing you can say about him is that he got drunk and killed a woman) but at least he isn't afraid to stand up and be counted for what he believes is right regardless of what the polls say.

dick said...

eli,

It would be a lot easier to believe you about the Democrats picking their fights if they actually stood for something.

Remember that the dems are the ones who got rid of the human intelligence agents in favor of relying on electronic surveillance (Church Committee and the Carter presidency). They then a few years later gave us the wall between the agencies so that they could not even share the intelligence they had so they could protect us (thank you, Jamie Gorelick and Janet Reno). Now you are arguing like a used car salesman that we have to gree with you that the media cannot be held to be responsible for handing our secrets over to the enemy after getting them passed on by government employees who refuse to follow the mechanisms of complaining about a policy and then the media claim that they looked at it and determined that it did not do anything to endanger the security of the country. The American public does not agree but you want the Senate and the Congress to tell the president he cannot protect and preserve the country because of a law the democrats passed that was probably not even constitutional.

I just hope that the senators you support, even if they did murder an employee while drunk out of their skulls, eventually decide if they support this country or not.

Jonathan said...

Is Ted Kennedy really acting against his own political self-interest? He keeps getting elected while taking the left-wing position on every issue.

Ann, I'm not sure that the separation of powers that the public envisioned when the Constitution was ratified included Congress refusing to confirm a Presidential appointee who used to work in the White House as a way to gain recognition for the illegality of a White House program. That situation is so rare that it can't be an integral part of the separation of powers. If the Article II argument for FISA being unconstitutional as applied to this program is valid, then that could be tested in the courts. If not, then the President's actions are almost certainly illegal, as they almost certainly violate the statute. If not answering questions about the legality of certain actions and the meaning of important constitutional provisions, then what is the purpose of the federal courts?

dick said...

Then why were those FISA judges interviewed and they all said it was not illegal. They were the ones who make the decisions and if they say it is not illegal, then maybe you need to revisit your logic.

Jonathan said...

It's not illegal if the statute is unconstitutional as applied. Maybe that's what the FISA judges meant. For a discussion of FISA's constitutionality as applied, see Posner's debate with Heynmann in The New Republic. Here's an excerpt from Posner's side:

"As Cass Sunstein has argued, if there is any significant doubt about the statute's constitutionality, that is a reason for interpreting the Act as not outlawing the NSA program. The Act does not forbid electronic surveillance outside the framework of the Act itself if it is authorized by another statute, and the argument of course is that the Authorization for Use of Military Force--Congress's September 14, 2001 "declaration of war" against Al Qaeda--is such a statute."

So, if you read the statute in a way that makes it constitutional so as to avoid offending the President's war powers, then the action is illegal. But if the statute existed in a constitution-free world, the program would definitely violate it. There's really no difference in this case between saying that the statute doesn't apply to the program bec. such a reading of the statute would make it unconstitutional and saying that the statute is invalid with respect to the program.

Ann Althouse said...

Marty Lederman said..."... I don't understand your argument at all, which appears to be (correct me if I'm wrong about this) that it's *ok* for the President to violate statutes if Congress can't get up the collective gumption to do anything about it."

I'm not saying that. The President is obligated to "take care that the laws be faithfully executed." To do that, he must interpret the law, and here he's got his interpretation. He's got three arguments, is seems, that he's within the law. Of course, his interpretations take a strong position on the scope of presidential power. If Congress thinks he's wrong, it must use its powers to push back. The very strong vote for Hayden is evidence of agreement with the President.

"... In the meantime, the proper response, IMHO, is to condemn *both* of the political branches -- not to shrug one's shoulders and say "no big whoop.""

Well, that's not what I'm doing. I think Congress supports the President, and, as you indicate, it should now enact clear legislation and say so. But I don't think the President can decline to live up to his obligations to protect national security while Congress cowers and dithers. If the issue comes up in a properly presented court case, the courts could become involved, but I don't think the courts are the primary constitutional safeguard for this. It's a struggle between Congress and the President, and Congress as an institution has not taken a position against the President's interpretation. It has consistently supported him! Thus, at this point, the President should be doing things as he sees fit within his constitutional obligations.

You rely heavily on the view that the President's legal interpretations are just ridiculous. But the members of Congress who were advised about the program, who really know what it is, accepted it. That means a lot.

Andrew Foland said...

Let me push back just a little.

Most of the opposition that has been heard over the program has not been from Congress. That is, I think it is utterly untenable to suggest that there has, at any point, been an outcry from Congress over the NSA, and that this vote puts that outcry to rest.

The outcry has been from less lofty folk. Initial polls may have shown pluralities in favor of the programs, but polls since have shown consistently, if slowly, growing opposition, such that opposing the reported programs is now a majority opinion in this country .

For the record I work in nuclear port security and therefore have a natural sympathy for not waiting while Congress dithers. But here that is really irrelevant.

Those who have been briefed are basically prohibited from saying much about it. That means a lot.

dick said...

Do you really think that these politicians who have been briefed on this would keep their mouths shut if they thought it would get them some positive publicity? We already know from Rep Murtha that he would not wait for the investigation to finish before he came out with his statement about the Marines. Leahy has gotten the nickname of Leaky Leahy for good reason. Rockefeller is well known to be prone to leaks. Pelosi would do anything to get one up on the president. She is almost salivating at the thought that she may become Speaker of the House (what a terrible thought that one is) so she can prosecute the president. Once the newspaper has come out with what it did, these people will run over each other to get to a microphone if they think they can get a leg up. Obviously they don't think they can or they would have been out there.

Would also like to know where you got your numbers about the support of the program. I have not seen anything remotely saying what you posted.

Ricardo said...

When people say that this vote was based solely on support or nonsupport of the surveillance program and of the President's initiatives in that area, they are attributing a single-minded shallowness to Congress that just is not there. There were "many" reasons why Hayden was confirmed, and reductionist reasoning fails to see the high regard in which he is held on Capitol Hill. In fact "his" approval ratings (comparable to the love affair that Admiral Bobby Inman had with Congress years ago) are much higher than the President's. Ultimately, this was a vote about Mike Hayden, although it is apparent that some of you would (simplistically) like to make this about Bush. I'm often not a fan of the legislative branch, but let's give them (the rare) credit where credit is due. It was a good vote, and the right result.

al said...

such that opposing the reported programs is now a majority opinion in this country

One has to wonder if these people really understand what is being done or if they are under the impression that the NSA is listening to all calls rather than looking for patterns in calls.

As for the legality - one of my senators, Dick Durbin, said something that the program was legal but the law should be amended to specifically allow the program.

ATMX said...

Sorry, Andrew,

Most of the opposition has been in the media, and is reported through media controlled polls.

Normal people (outside of MA) recognize that the need to secure the border, and that includes the need to monitor traffic coming across it.

As for that USA Today poll, it came out soon after their story on whatever the other NSA program was. No doubt they had a vested interest in pushing their apparently misreported story.

The Drill SGT said...

Let me agree with atmx. The USA questions were not as clear as the WAPO poll the previous day, there 63 percent thought the program was acceptable. Here was the question:

45. It's been reported that the National Security Agency has been collecting the phone call records of tens of millions of Americans. It then analyzes calling patterns in an effort to identify possible terrorism suspects, without listening to or recording the conversations. Would you consider this an acceptable or unacceptable way for the federal government to investigate terrorism? Do you feel that way strongly or somewhat?


Yes, the President is taking terrorist threats seriously, and is stretching the envelope farther than was done in the last 30 years, but nobody has come forth with credible claims that the NSA is involved in "domestic spying against political enemies".

Think back 30 years to the Carter presidency, when we had state sponsored terrorists holding hostage for 300+ days. This was the same time that Congress (AKA The Church Report) gutted our human intelligence capabilities around the world in order to depend on satellites. Would you rather that Bush had reacted to 9/11 like Carter did to the Embassy?

Our Army has a nice saying for times when the excrement hits the impeller:

"Lead, Follow, or Get the Hell out of the way!"

A good decision made in time, is better than hand wringing trying to make the perfect decision too late

paulfrommpls said...

I came in late. I'm assuming Sippican found himself drawn into an icky fight with Jacques/Quxxo and has decided it was a bad move and to delete all the evidence. It happens to the best of us. In fact I guess it just did.

As for "It's hard to take congressional attacks on the NSA surveillance program seriously when 78 Senators voted for him" -

Yep. Irrefutable logic. (I love that kind of logic.)

Walt said...

There was a time when a healthy dose of skepticism created a system in which the checks and balances of our Constitution seemed to work. I find it ironic or perhaps absurd that people in this thread argue that the American people should accept this self-imposed survailance, because the gov. would only use its secretive program to root out terrorists.

This is an administration that lies to itself. Why would you assume it wouldn't lie to you. Look, Bush and Blair finally made a public statement about so possible errors they might have committed in the time after the war and the planning for post-war ops. It has taken them 3 years to realize that they were just lying to themselves when Channey mentioned the last throws of the insurgency and Rumsfeld claimed that there were mere pockets of inserection in Bagdad.

The problem I find with the arguments in the thread are the strictly partisan tit for tat. I beleive it even reached the point of Ann calling some in a party pussies. Look at the headlines for this year alone. Why would you trust what the Washington elected have to say. They work 3 days a week then run off to some fund raiser and collect a lot of cash. I hate to burst everyone's bubble, but it is not particular pussie party of the other: News Falsh - its both parties.

The best rhetorical insight in American politics for the past 20 years was convincing the American people that they had a 2 party system. In reality, we have 1 gig, corrupt pile of . . .

I apologize for the rant, but this does concern wiretapping. What happens when they get dirt on each other? Your a fool if you don't think they do. Sometimes your worst enemy is your best friend. That axiomm is the foundation for our pathetic, corrupt, impetent, dysfunctional, backward-ass democracy that we are spreading around the world.

Ann Althouse said...

My "pussies" comment should be taken not as partisan taunting, but as the same idea expressed by Justice Jackson in Youngstown here:

... I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.

paulfrommpls said...

Walt, for what it's worth, my views on this issue have less to do with whether or not the program itself is in the end a good idea than with the seriousness and intellectual honesty of the original Congressional Democratic outrage at it (which also was the topic of the post here originally).

It might be kind of a subtle distinction. But the reality for Democrats is that they were as informed about it as Congressional Republicans, via the Gang of 8 process.

Democrats say that review shouldn't have been limited to the Gang of 8, which is a defensible proposition - but again, the decision to keep it there was decision made by 4 Democrats as well as 4 Republicans, and subject to review by them, and no major disagreement was ever made within the context of that Gang. The Democrats on the Gang make a lame case that somehow they were constrained from objecting or doing anything about it, but seriously, I think that's nonsense.

Their secrecy obligations would not have kept them from doing some small legal research if they really suspected the process should be reviewed by a larger group. And most definitely, their secrecy obligations wouldn't have kept them from objecting within the Gang and insisting on more details, or a larger review, IF they honestly thought it was necessary.

So either they were okay with it; or they took part in a major Constitutional problem.

(Sen. Rockefeller's odd letter is the only hint of serious objection. At this point it really strikes me as a CYA device, or a political device to trot out later. If he had problems, why not bring them up in the Gang? Did he ask for mroe details, or a larger review, and was turned down? I haven't heard anyone claim that.)

reader_iam said...

Paul, regarding Sip's deletions, you need to go read comments section attached to the post about the kids who accidentally killed another kids. In it, Sip explains why he will be deleting any comment he makes if it's in proximity to a Quxxo/Jacques Cuze/etc., regardless of topic.

Seven Machos said...

Walt -- Why does it bother you that the federal government is trying to eavesdrop on the phone calls of terrorists? Is it wrong to spy on terrorists?

On a more functional level, do you think that all those satellites in the air got put there during the Bush administration? What have they been doing up there in space? What were they doing during the Kennedy, Johnson, Carter, and Clinton administrations? Merely delivering better and better cable television?

Finally, if someone spies on you and you are unaware and completely unaffected, has there been a civil rights violation?

These are just a few of the issues I think you ought to consider.

dick said...

Walt,

Assume that there really has been eavsdropping on everybody and all their phone conversations. Just how many people would have to be employed to listen to all these conversations. You figure that there are millions of phone calls per day, some lasting for hours. We do not even have enough people to listen to the conversations and do anythng else let along listen and make decisions based on the conversations. Just how is this supposed to be done?

How do you think the president should protect the country? Where would he get the intelligence estimates and the raw data he would need to determine who is working with us and who is working against us? You want to take away the electronic spying system in place, the human intelligence aspect was taken away by the Church Commission under Carter and is not available. He needs information from somewhere. Where is he to get it under your limitations?

As to the terrible government we have, precisely what form of government would you want to be out there in the world. Do you want to live under Sharia law? Do you want to live under a form of government like the Euros do where they are losing more and more of their rights all the time? Do you want to turn over the government to the UN? Do you want to turn over the judicial system to the ICCJ which does not even have a code of laws, a mechanism for testing the capabilities of lawyers, a place to exact punishment, even a choice of assumed guilty or innocent. If you do not agree with the judgment exacted by the court, where do you go to appeal it. Is that the form of government you want? or maybe you want a Communistic or fascist form of government? You sure don't like ours so what do you want to replace it with.

As to the parties being identical, that is something with which I cannot agree. You have one party that has made a statement of where it stands and a president who does in fact do what he says he will do. You have the other party which has not a clue what it stands for. You surely don't think they match up. If you do then Nanny Pelosi and the Fat Drunk will skin you alive.

knoxgirl said...

I'd say Kennedy's opposition to the wind farm on Cape Cod pretty much disproves the whole "well, at least Kennedy is a man of principle" argument. Not to mention that the Kennedys are drowning in oil money.

(and yes, the worst thing you can say about him is that he got drunk and killed a woman)

..and its kind of gross to try to, like, minimalize this incident. I mean, it's not really appropriate to sort of bracket it as an "aside" is it?

Jonathan said...

It seems that if you say "this is a dispute between Congress and the President, so courts should not get involved" then you're saying that federal courts should never get involved when the President violates statutory law. But then what did Roberts and Alito mean when they said "the President is not above the law"? Were they just referring to constitutional law? And if so, then doesn't that make nonsense out of Jackson's argument in Youngstown that presidential power is at its lowest point when it is in violation of a statute?

Maybe this is not a good case to test the bounds of the President's war powers, since Congress seems to recognize the need to change FISA. But that's a separate question. Hypothetically if Congress stood behind the law it had passed, wouldn't the correct remedy for the President violating that law be in court rather than congressional censure/impeachment?

Ann Althouse said...

Jonathan: Courts decide cases, that is, disputes between parties with concrete claims. Who's the plaintiff? The courts don't spring into action just to verify that the President's interpretations of law are correct. In fact, that would violate the law.

Here, the President has interpreted the law as it was needed in carrying out his duties. That stands as the legal answer until there is a case. Congress could also take action, if it has a different interpretation of the law and wants to use its political tools, but it has not done that.

We can argue that the President's interpretation is wrong, just as we can argue that Supreme Court opinions are wrong. But the fact is that his interpretation is the one that prevails unless some further step is taken either in Congress or in the courts. No one is saying the President is above the law!

Seven Machos said...

Jonathan -- The Congress is free to censure the president or impeach the president at any time. Whether or not it is "proper" or not depends entirely on some fraction of those 535 people voting "yes."

You can argue until you are blue in the face about what should or shouldn't happen. But those are the facts on the ground.

Jonathan said...

I only meant that, if someone could get standing (which seems unlikely since we don't know whose communications the NSA monitored), a court should not decline to hear the case on some prudential ground like the political questions doctrine. A decision in such a case would at least provide an answer to the war powers question in the sense that it would guide future court cases, even though the President could theoretically continue to act according to a different understanding of the clause.

Jonathan said...

Seven - I don't totally agree with your political realism. Theoretically, Congresspeople all take an oath to uphold the Constitution, including the restriction on impeachment that it only be used for high crimes and misdemeanors. This theory affects practice in that it provides a neutral-seeming justification for Congress's actions, which is important to whether Congresspeople's constituents will support their actions. Why, after all, does Congress rigorously follow the constitutional provisions regarding the procedure for impeachment? If theorists make a convincing argument that, for example, the original meaning of "high crimes and misdemeanors" did not include perjury, then that could affect the public's perception of Congress's action.

Seven Machos said...

Jonathan -- It is up to the Congress to impeach or censure, or otherwise act. Hopefully, members will act according to their oath and to the Constitution, but maybe they won't.

One thing is certain: theorists play no part.

As far as the actual law, if Congress wants to change the president's behavior, it can, by enacting a new law, over the president's veto if necessary, which the president will be required to follow once the law is enacted. But Congress hasn't done that, has it? Perhaps you might ask yourself why. Could it be that Congressional Democrats have no desire to stop these intercepts but know that they can play their base (for votes and money) if they talk about it.

Basically, my criticism of your posts on this thread would be that you keep saying that certain things should or could happen and ignoring political realities. Who cares what should or could happen? In politics, what matters is what can happen.

Jonathan said...

My main point wasn't that theorists affect elections, but that the Constitution places real restraints on the acts of Congresspeople, whose political self-interest often requires them to come up with persuasive arguments that what they're doing is constitutional.

Edmund Burke said that representative democracy is better than direct democracy because the representatives will serve as trustees who know better than the public what the public needs. But our Constitution generally rejects such elitist ideas. So maybe when politicians act according to political self-interest, i.e. governing by the polls, then the system is working as the Constitution-ratifying public meant for it to work. If that is true, then what Congresspeople should do is generally what they do in fact do - namely governing a way that gets them re-elected.

dick said...

Then what is the complaint? There is no case in federal courts to stop the president brought by the people who passed the FISA law. All the yelling and screaming is from the extreme left and the media (but then I repeat myself). The majority of the people are more concerned with being protected from terrorists and they see this program doing that. Personally I think the majority of the people would prefer to have human intelligence rather than electronic intelligence but a previous democratic congress took that option away 30 years ago.

If you do not like the way the government is working, then just how precisely would you like it to be formed. What should be the basic philosophy governing the makeup? How would you go about protecting the country from its enemies?

I hear a lot of bitching and screaming from the left about all the rights they are losing but nobody is putting them in prison or arresting them for protests. About the only laws that have been passed that change actions by the protesters is the new one about picketing military funerals and that is more to protect the family of the dead military from the inconceivably gross actions of the protesters. Nobody is even stopping them from protesting at Walter Reed Hospital. The only thing that stopped anything there is that the Code Pink harridans forgot to get an application renewed and someone else got the slot in their place. Even your list of books from thelibrary are safe since that was obtained using the RICO statutes rather than the Patriot Act.

In the case of the NSA actions, they are doing almost the same thing that the supermarket and Amazon are doing which is obtaining phone numbers and connections. The difference is the NSA are not obtaining names and addresses and credit card numbers. Yet you don't complain when your other information is passed out all over the place. The only time you complain is when the government uses it to find who is trying to attack the country. That makes a lot of sense. It is OK to pass out your private info all over the place to buy porno but God forbid anyone try to stop terrorists from nuking the country. Thank heaven for the LLL moonbats who protect our privacy. The shame is they do not protect our freedom to live.

Jonathan said...

Dave, I'm not sure who the "you" is in your post.

My point was not that the NSA program is a bad idea as a policy matter. I agree with Posner that changing FISA to allow the surveillance would be desirable if Congress restricted the use of obtained information to national security-related purposes. Congress, however, has not done that, so the NSA program violates a currently existing statute - and whether the statute as applied is unconstitutional is an interesting and important question that I think the courts can appropriately address if the opportunity arises (which, of course, is unlikely due to the individuated injury req.). That was my point.

Jonathan said...

Sorry - I meant to address my comment to Dick.

The Drill SGT said...

Seems to me that IF Congress wanted to take action (and I think that the NSA stuff is reasonable and that Congress are wimps) they could do the following:

1. Impeach
2. Censure
3. Sequester NSA FY06 funds
4. Cut the FY07 budget
5. go to court (seems they wpuld have standing)

Ann Althouse said...

Drill Sgt: What are you even talking about, suggesting "Congress" would bring a lawsuit? It has not taken a position as a body. Individual members of Congress would not have standing, as Raines v. Byrd makes clear.

The Drill SGT said...

Ann,
My point exactly. All of those things on the list are collective Congressional actions.

I think all of those NSA programs we know about are legal and perhaps productive. In the GWOT, we have very few advantages. One of our few is technology. We need to use it.

My point is that IF folks think that what the Bush NSA is doing is illegal or otherwise violates our rights, there are lots of options. The barrier to effective action seems to be, that the complainers need to convince a clear majority of the People or a clear majority of at least 1 house of Congress. We all know that neither of those things is going to happen, so all the democratic or media elite outrage is just useless whining and political demagoguery.

I guess my other point hidden within the list is that folks forget that Congress holds the power of the purse. The Anti-Deficiency Act is an important restraint on your average bureaucrat

Simon said...

Andrew,
"Initial polls may have shown pluralities in favor of the programs, but polls since have shown consistently, if slowly, growing opposition, such that opposing the reported programs is now a majority opinion in this country."

A prevous commenter already raised theprimary rejoinder to such a point, which is "what was the question asked," but one alsohas to add: who was asked? This poll did not show that there "is now a majority opinion in this country" opposing the program, it shows that of "809 adults [reached] Friday and Saturday," about 412 disapprove. Opinion polls necessarily generalize from their sample, but one has to ask: in order to say, as you do, that this poll reflects the country, where was this sample taken? Because it seems to me that if this was simply 809 randomly-selected residents of Boston, MA, who happen to be home on a Friday night, I'm not convinced that it represents "the country." I'm increasingly of the opinion that ALL such polls should basically be considered null and void unless they include the question asked, the geographical catchment area wherein respondents were drawn and the party affiliation of respondents.

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

Dick:
"All the yelling and screaming is from the extreme left and the media (but then I repeat myself)"

To borrow from Lord Tebbit: "the word 'conservative' is used by the [media] as a portmanteau word of abuse for anyone whose views differ from the insufferable, smug, sanctimonious, naive, guilt-ridden, wet, pinko orthodoxy of that sunset home of the third-rate minds of that third-rate decade, the 1960s."

Kirk Parker said...

"It's hard to take congressional attacks on the NSA surveillance program seriously when 78 Senators voted for him."

Wow; I would have thought the Kennedy's opposition to something would have been enough to make a person favaor it; but maybe that's just me.