Except that I'm not. Still, thanks for admitting that you are!
The subject: the on-and-off concern about national security, when looking at the domestic surveillance controversy and the Plame investigation, depending on where the partisan political advantage seems to lie.
The admission: from Ted of Crooked Timber, who cries gotcha on me.
The proof that I haven't taken two sides on the two controversies:
Re Plame, I've said:
I have avoided writing [about] the Plame story. There is too much detail to it for me to analyze it and come to a fair conclusion. A man faces criminal prosecution. The temptation is to say either this is a huge deal or this is practically nothing based on how much you'd like to see the Bush Administration wounded. How many bloggers have fallen prey to that temptation? How many bloggers have written about the indictment of I. Lewis Libby without imbuing it with their own political wishes? A man faces criminal prosecution. Let him go to trial, then.Re domestic surveillance, I've consistently avoided pronouncements about the statutory law and how it relates to the constitutional law on the ground that it is too specialized and complicated. For example, in the long set of comments to this post, I chided a commenter who asserted that the surveillance program was "blatantly" illegal:
You might note that I haven't taken a position. I don't consider myself knowledgable enough to do so, and I really dislike it when other people think they are. Look how modest Kerr was about his analysis. He's an expert, and he still refrained from making any strong assertions. Take a lesson from that.Later, in the same thread, responding to a commenter who wondered how I could miss some aspect of the FISA statute, I said:
How could I miss it? Simple: I've never even purported to analyze the statute. I can see it's complex, and I've never studied it. I've just chided people who are jumping ahead and saying what it means. I'm not myself doing the thing I'm chiding others for doing.Shamelessly stripping this post of mine of its context, Ted says "Ann Althouse couldn't care less about Valerie Plame." That post is about the way people like Kos were exulting about "Fitz-mas." I was expressing disgust about "slavering hyenas" gloating about the indictments they hoped to get from the special prosecutor. I wasn't saying I didn't care about that leak. Not there or anywhere else! I await Ted's apology for his self-serving distortion of my writing.
Ted also tries to excuse the leaking of classified information in the domestic surveillance matter on the ground that it's whistleblowing. To that, I've already said (in the comments at the last link):
You can't reveal national security secrets and just say you're a whistleblower. The leak is really outrageous, and people who don't care about it strike me as flat-out partisans who care more about politics than national security. It's quite sickening.I agree that the Plame leak may have been devoid of any virtuous motive, but that's beside the point. The question is: Are you concerned, in a politically neutral way, about national security? Ted tries to wriggle out of this question by just observing that he isn't seeing the damage to national security and telling me that I ought to prove the damage to national security. That's ridiculous. It's not for each person in possession of classified information to decide for himself how much it matters and to weigh how much good could be done by leaking it. And for those of us on the outside, who don't know the true scope of the program or the terrorist activities, we have no basis to spout off about how damaging the leak was. Blithe yammering about how it didn't really hurt just makes you look all the more partisan.
Posts
91 comments:
Thanks. Corrected.
GJ: I'm deliberately refraining from making assertions about legal matters where I can see I'm not in a position to understand what I'm talking about. I can't fill this blog with all sorts of posts to block every inference you might see fit to make. I choose the things I can talk about and talk about them in the ways I feel capable of and interested in. It's a mixed bag. People are always badgering me about what I haven't said. I'd have to spend my whole life trying to plug up every hole. I can't do that.
Speaking politically neutrally, one of the major lessons we should be learning from the current messes, is how wise our Founding Fathers were when they devised a system which encourages adequate checks and balances among the three branches of government. At times when one party (of whatever color) exerts an inordinate control over those branches, we seem to end up with a system in which "absolute power corrupts absolutely". Today, we act as if this is something brand new, and we are shocked. But our Founding Fathers understood the nature of the human beast well enough to take extraordinary measures to install adequate safeguards. Voters should understand that one of the best protections they have for decent and responsible government, is spreading their votes around in a way to ensure the functioning of checks and balances. It's not unlike a roulette player, spreading his/her chips around on the board to give him/her a better chance at winning.
Partisans of either stripe can imbue anything you say with inferences which were not implied. Ann, you are right not to try to defend every statement. You could spend your life doing that and the end result would still be that people believe what they want to believe about what you say. Has our society always been so bad at arguing with intellectual objectivy and honesty? Is this something new or just the result of an increasingly divided electorate? I find it frustrating when people post such nonsense about you but rest assured, many of us recognize that you are a voice of reason in a ocean of hyperbole.
So in other words, when Ann wrote, "There is reason to be more outraged, because of the actual damage to national security. Ever think about that?," by her own admission in this post, she was talking crap.
She says now she is in no position to judge whatever damge was done by the NSA leak: "And for those of us on the outside, who don't know the true scope of the program or the terrorist activities, we have no basis to spout off about how damaging the leak was."
So when she said that bit about "actual damage," she was spouting nonsense -- by her own logic. She really needs to find the commenter she was barking at there and offer a heartfelt apology.
And it's also funny how Ted gives prominence to the "actual damage" quote, but Ann leaves it out of her rebuttal. What fun!
Viz: "You are peculiarly suited to comment on each of these things because you *are* a Professor of Law."
You, not being a professor of law (or lawyer like Bill), imagine that I know all the answers or can at least grope toward them better than other people, so I ought to at least take a swipe at any given important matter where people would like to get an answer. But I'm saying that is not a benefit.
My expertise is in recognizing my limits here and not offering up something seemingly authoritative that just isn't. Especially in the case of a complex fact setting or detailed statutes, I know enough to talk in terms of what I don't know, what some good questions might be, or what we need to avoid jumping to conclusions about. That is what I'm doing with my expertise here.
You're hoping I'll take sides. I decline to do that. In this, I'm being a law professor and not a political partisan. The people who seem to know the answers so easily are the partisans, even if they gloss over that with professionalese.
Thersites: I do stand by the "actual damage" position. I think we've revealed to the enemy that we were monitoring them in a way that wasn't publicly known before. That's a shocking thing, tipping off the enemy. How dare anyone do that on their own analysis that it's really on balance for the good? How dare they, during a war?
By contrast, Plame seems to have had a desk job where nothing about her identity mattered, and her identity seems to have been generally known anyway. From the little I've seen, the difference seems plain. I absolutely stand by what I wrote in that earlier statement. Sorry I didn't lengthen my post with that material. It irks me to have to respond to Ted at all because he's been so unfair to me. As have you, as you well know. You're a political partisan, constantly hostile to me because you perceive me (incorrectly) as a partisan of the other side. Why should I even talk to people like you and Ted? It's not a real conversation.
GJ: Your use of expression "can't be bothered" is misleading. Would you say that a general practitioner who refuses to do brain surgery can't be bothered?
Most of the talk in the blogosphere about Plame is just political blather. It's true I can't be bothered with THAT.
Mark: I see potential for abuse without warrants and with warrants. But that doesn't justify revealing classified information like this. Your level of concern about national security is quite low. If a Democratic candidate for President said things like that, how do you think things would go for him (or her) politically? I'll tell you: disastrously. That's why Hillary Clinton has yet to say anything about the controversy.
Hypocrite?! Banish the thought!!
I'm quite sure that you have elevated consistency to you highest value. Small minds generally do. Problem is, Ann, that leaves the door wide open for being things like consistently medicore.
Which pretty much sums up the "divine" drivel I've seen here lately.
It's amazing how many people invite themselves into other people's homes, complain about the free food, insult the host, and pee on the rug.
I am confused.
Why do the posts pay no atention to Fitzgerald saying twice that the CIA identity of Plame was "not widely known". Not widely means known!
The 4th Amendment and ALUM seem to defer to the executive for Foreign intercepts. It seems that the FISA court concern was that NSA intel would be used for domestic 'reasonable cause.
I don't want to be difficult but I would love to see a (nonpartisan) post that just lays out reasonably factual info without trying to 'get' anyone.
I am confused.
Why do the posts pay no atention to Fitzgerald saying twice that the CIA identity of Plame was "not widely known". Not widely means known!
The 4th Amendment and ALUM seem to defer to the executive for Foreign intercepts. It seems that the FISA court concern was that NSA intel would be used for domestic 'reasonable cause.
I don't want to be difficult but I would love to see a (nonpartisan) post that just lays out reasonably factual info without trying to 'get' anyone.
Mark: "I am not talking, at this time, at least about politics of this. However, since you raised the political subject, the most recent AP-IPSOS poll demonstrated that 58% of the public think that Bush should have obtained warrants and only 42% support your (and Bush's position). So, please don't characterize my concern with national security as low; otherwise you'll have to admit that the concern of 58% of Americans (if you believe this poll) is equally low. The potential for abuse obviously exists with warrants, too. But the primary purpose of warrant requirement is precisely to decrease the potential for the abuse."
Wow! Don't you see the OBVIOUS problem with that as a response to what I said?! There are two separate matters: the leak and the search. I was talking about the leak. You're talking about the search. Keep it straight! Anyway, I don't give much credit to that poll, with out seeing more of that. Provide a link.
I don't want to be difficult but I would love to see a (nonpartisan) post that just lays out reasonably factual info without trying to 'get' anyone.
I'm with you. It seems the main determinant on how people feel about this issue is how they felt about GWB before the wiretap news came out (I have to leave Ann out of that observation since I'm not sure how she views GWB).
There is an issue here to be discussed. On the one hand, Americans deserve their right to privacy. On the other hand, most Americans would probably give up some of their privacy if it meant preventing a terrorist act. So to my non-legal mind the question is where the line is drawn between protection from the government on the one hand, and protection by the government on the other. Apparently a series of checks and balances has been set up to define where that line is set. Whether GWB crossed it or not who knows.
As you note, most of what I've read is partisan one way or the other, and it's been difficult to understand the issues.
Mark: "It is fair to say that the majority of independent legal observers conclude that this program was not legal."
Provide substance to that. What independent legal observers are there who've offered conclusions? The mere fact that they've got conclusions makes me presume they aren't independent. I'm impressed by Sunstein's conclusion, because he is not a supporter of the President's, but he'd be in your minority. Does Kerr count? He's also in your minority. So you've got at least three independent legal analysts who've come forward with conclusions. And yet I doubt even that!
Toadlady: I'm against all of the leaks. I don't say Plame should have been outed. I'm just responding to people who challenged me about my estimation of the relative damage to national security by the two leaks.
Mark: "The propriety of the leak (surely moral, maybe legal, too, but I am not sure) is directly dependent on whether the searches were legal."
No, it isn't! Ridiculous! It's not for the leaker to decide it's illegal and undermine security. There are mechanisms for dealing with illegalities that don't require leaking. If it's illegal, it should be fixed, but screwing up national security in the process is not justified.
Mark: I don't know if I'm the only one who doesn't know what CRS is. But I don't.
' I think we've revealed to the enemy that we were monitoring them in a way that wasn't publicly known before. '
Are you seriously suggesting the enemy wouldn't have considered this possibilty? If you think this, you certainly don't give them much credit for being able to think defensively...considering the plotting and carry through of hijacking US planes and turning them into weapons of destruction all within US borders.
Of course you don't believe this. What really is the basis for your outrage? It's your right to feel this way, your stated reasoning for it just doesn't wash.
Mark: I thought Kerr said he leaned toward saying it was illegal. Lederman and Balkin are strong opponents of the President's, I believe. I can't do a deep check of independence, so why don't you do the work of proving it? As I've said, I think anyone with a quick answer should be suspected of not being independent.
Chum: It is simply outrageous to leak on the assumption that the enemy has already figured everything out. You do not seem to be serious about national security.
Mark: About law professors... I know a lot of them. I don't accept them as independent on that fact alone. Believe me, I really know what I'm talking about. The average lawprof is VERY political, especially if he's writing about political subjects, especially if he's managed to make himself prominent.
As to the link to the poll, thanks, but the article doesn't even give the question verbatim or any other details that help me judge the poll. It's quite opaque.
Mark: "Still, I don't know of any objective analysts who are not supporters of the President besides Sunstein who consider this program legal."
Those of us who are independent are not waving opinions about on this one. That's why. You are reading material from opponents of the President, I presume. You don't want to "bother" rebutting my presumption, so I will stick with my presumption. Again, I've seen a LOT of lawprofs in my day.
In my estimation, commenters questioning Ann's position keep ducking a point about leakers--or whistleblowers--that I think she's tried to make a whole number of times, in this comments section and in actual blog posts at one time or another.
(If I get this wrong, Ann, or simplify overmuch, I'm sure you'll let me know ... )
The leak issue comes down to these questions, I think:
Who should decide what information relative to national security, in particular, should be made public? Elected officials and their delegates, or someone "underground," so to speak, without designated accountability to us all?
It appears that a number of commenters are perfectly comfortable with some random person--whose motivations we do not know, whose qualifications we are not privy to, and whose big-picture grasp of the whole situation we cannot judge--making that call.
In essence, some unknown person made that call on behalf of us all. Maybe the damage is a little, maybe it's a lot. But if it's a lot, to what person can I point to complain? Whom can I vow not to vote for the next time? Who can I at least excoriate publicly for taking this judgment call upon himself or herself on my behalf?
That's the problem with whistleblowers and leakers: they're a law unto themselves and the nature of what they have to do in order to whistle and leak makes them at least somewhat suspect as sources, until it can be verified otherwise.
And yes, OF COURSE, I know that there have been hero whistleblowers/leakers in the past. There are always exceptions. But in any case touching upon national security, the automatic benefit of the doubt should not accrue to anonymous, unaccountable individuals.
(By the way, I don't like the actions of the leakers in either case being discussed here. And I've written a sharp word or two about the mindset I fear has begun manifesting itself in various parts of our government behemoth, and how my skepticism has deepened as a result. That's quite apart from the issues of legality or illegality, which I will leave to the lawyers.)
Ann said...
' Chum: It is simply outrageous to leak on the assumption that the enemy has already figured everything out. You do not seem to be serious about national security.'
That's ludicrous. The leak isn't that phones are tapped. Besides it's hardly a leak when stating the obvious. i.e. Suspected bank robbers will be subjected to survelliance. (Oh, bugger, the cat's out the bag)
Nor does stating the obvious about something imply disregard.
Meanwhile focusing on this aspect of the issue is picking nits out of the red herring.
Apf: I have that happen, too, depending on which browser I'm using. Hit refresh or reload and it solves the problem, in my experience.
I have only recently started reading and posting in the comments sections of the blogs I read. Frankly, I'm not sure I'll keep doing it. I'm often amazed by the discourse. I don't understand the mentality of those who insult the blog host. I read Ann because I enjoy her posts. I love her intellectual curiosity and the fact that everytime I open her blog I can't predict what the topics will be. It's the variety I enjoy, as well as, her particular expertise in some areas related to law. I particularly have enjoyed her insights into Roberts and Alito. What I'm wondering is what are some of these hostile commenters reading her blog for? Just to play gotcha?
No one should expect to agree with another person 100% of the time, it would be a little creepy if they did. But everyone can be civil. Some of the commenters with a clearly liberal bias are providing commenters on the right with support for the belief that liberals are incapable of intellectual and reasoned discourse about anything to do with the current government because they can't seem to stop themselves from decending in to personal attacks on Ann as they argue their belief that Bush has committed an inllegal act.
These uncivil people should be honest and admit that what they want is for Ann to support their position. They're angered that she hasn't chosen to come out with a definitive statement that agrees with them, with all the weight of her fame and law degree behind it. I ponder that they are jealous of her blog traffic.
Just because this particular issue floats your boat and has you in a frenzy of excitement because you think it's the thin edge of the wedge against Bush, doesn't mean Ann should choose to spend all her free time becoming a super-expert in the relevant laws and statutes. If she's not comfortable doing an in-depth analysis with her current level of knowledge she doesn't have to do one. I would think people would appreciate that she's not a know-it-all. Given that her blog persona and real-life are well-known and connected it would be stupid of her to come out with opinions that she hasn't fully studied or researched in an area related to law. So instead--she offers a few observations carefully noting that she hasn't studied the issue deeply and isn't an super-expert. That's intelligent of her, imho. It's also her right to do so on her blog.
I'll just add that Ann doesn't need to use her law degree, just her common sense, to offer an opinion that possibly these two leaks don't have the same adverse impact on national security. Without re-reading everything Ann has written, that's my take on what she has suggested as a topic for discussion.
The concern here is this, and the focus of the concern is civil liberties:
If the question at the forefront were in fact, only a question of monitoring terrorists, getting a court order would be simple enough to do. Further, Reagan exectutive order 12333 (which allows warrantless surveillance of foreign agents) could easily enough be cited as adequate justification for not getting one. So the fact that they have not done this leads me to believe that the ability of the government to spy on individuals, including those who have no connection or reason to suspect a connection to terrorists, is being abused, just as it was during the worst days of the J. Edgar Hoover era. It just isn't logical that the White House would go through all of this if they were intent on staying within the already existing parameters of the law.
Now I will say that the biggest hypocrisy I see is this: conservatives, who a few weeks ago were citing the Curt Weldon assertion that the Clinton administration was too focused on protecting civil rights to allow effective monitoring of terrorists (not that I agree with them, BTW-- the Clinton administration did not value civil liberties as much as they should have-- see the 1995 'domestic terrorism' bill), but yet last week were claiming that there was nothing that George W. Bush is doing that Clinton hadn't done already. Now, THAT is a contradiction.
I blogged at some length on this a couple of days ago: White House legal foundation washed out.
Toadlady: If you're still here, sorry for the delay in replying. I'm having browser issue--I can post etc. on my own blog in Foxfire, but can't reach Ann's blog through it. So I have to open another browser and then also log myself into blogger. A pain for a Saturday night.
ANYWAY, just didn't want you to think I was ducking your question ... at least by not replying.
I find part of your question easy to answer. I think, for various reasons, that this president and our country would be best served by Rove's departure, and I have felt that for some extended period of time.
I find the whole Plame story one of the more confused in our recent times (unlike the NSA and related stories, by the way, despite the fact that there's so much we don't know). I think there are very legitimate arguments on both sides as to whether she was truly undercover in the legal sense or even as the CIA uses it, as opposed to our more general sense of that. That directly bears on the "leak" issue as such (that there was some sort of underhanded attempt to get at Joe Wilson--whom I do not respect and have every reason to think is at least a spinner, if not a liar--through his wife, I have no doubt).
I think almost every character involved in this sorry tale is unsavory in one way or another, to one degree or another--including Plame herself and certainly her husband. I think that many of the charges and counter-charges are not substantiated in ways that point incontrovertibly to a clear conclusion.
I think it's very hard to come to the conclusion, in a reasoned fashion, that those in the administration involved in the Plame situation--regardless of the legalities, etc.--comported themselves either well or wisely. They certainly did not serve the public interest well, if only (and I'm not saying it IS only) because this bloody mess has been a major distraction when we have far issues facing us--and even axes to grind.
But all this does not mean that the Plame affair equates to individual people at the NSA--again, unelected and unaccountable--choosing to leak publicly whatever information about national security decisions with which they do not agree.
I think we deserve better than BOTH Rove and, potentially, that leaker.
Aren't you sorry you asked?
In thinking it over quickly, "potentially" more likely should be "probably".
Anti-Scheck, re:
You teach Constitutional Law and you don't know about the Congressional Research Sevice?!
a serious question:
Is this the site?
http://www.cnie.org/NLE/CRS/
And if so, can you point me to the Constitutional analysis? This seems to be a production of the LOC, actually, and most of the reports I see here are in fact just reports, with some statutory explanations, not legal analyses. For Constitutional law in general, I don't see how these would carry any weight at all, and even for statutory law, I don't think they would carry much weight in court(though the next time I am confronted with an unfamiliar law, I do think I'll take a peek here). Am I missing something? How is this a significant resource in Constitutional law?
balfegor- It probably isn't significant, except as another facet of Anti-Shek's weird psycho-sexual rejection drama about Ann. She's not interested in you, dude. Get over it!
I do stand by the "actual damage" position. I think we've revealed to the enemy that we were monitoring them in a way that wasn't publicly known before. That's a shocking thing, tipping off the enemy.
Yeah, now they know we're not using warrants. Pretty freaky.
"Partisan" isn't a dirty word, you know.
Thersites, are you so very sure we know the whole story? Seems to me that there have been a lot of hints about a method that may be technologically new, and not something about which most people, including terrorists, would have known. I'm inclined, for various reasons, to think there's something more to the picture that is being assumed in the discussions here, and elsewhere.
I think saying the only thing they've learned has to do with the warrants may be touching only one part of the elephant, so to speak. Worth considering, anyway, surely?
Yeah, now they know we're not using warrants. Pretty freaky.
People who have been looking into this in somewhat more detail than I have (and with somewhat more technical knowledge than I have) seem to have come to the conclusion that there was a reason they weren't looking for warrants -- they were performing some kind of pattern analysis over our communications networks, and that the structure of this system was such that they couldn't practically obtain warrants for each and every individual touched on in the analysis. It still isn't clear to me what we were doing -- only that it was too complicated for Senator Rockefeller to understand (though given his age and his Senator-hood, that probably isn't a very high threshold). But people with more knowledge, and a vested interest in figuring it out (e.g. Al Qaeda) may have been given notice by the leak that communications they thought were not monitorable are monitorable, and may well be monitored at the moment.
I think the fact that no one has yet come out and given a clear explanation of what was the program did and how it worked, though, is a pretty good indication that there is nontrivial concern on all sides about the effects a complete revelation would have on our intelligence gathering.
On the flip side, the obscurity of the public explanations of what was going on are such that I think they do preserve our security interest in some degree.
"....So, if whoever leaked this information assumed that the program was illegal, he MUST have leaked it. That's a classic whistleblower scenario, in my mind...."
This is classic relativism. Its what we should expect from the left. "As long as the leaker decides it is illegal, then its okay to leak it...." How absurd.
The whole argument from the left is rooted in Bush hatred. What else would explain the suicidal arguments.
My favorite is the new argument that leaking the program certainly doesn't matter because the terrorists already knew we were spying on them....so what harm did it do.... just like Osama knew we were listening to his satellite phone....until it was published in the paper. and then he stopped using it. Hmmm... even terrorists make mistakes; no doubt some of them had no idea the governemnt was listening to their phones.... no doubt the government is no longer listening. Too bad for us. Too bad for the next victims.
It is completely true that leaking facts about the secret prisons in E. Europe and the NSA listening program seriously compromise natl security, while it is totally clear that leaking the name of Vallarie Plame does not. It's outrageous that the left tries to claim that the Plame affair is somehow a worse offense, when the NSA and secret prisons were directly related to spying on Al Qaeda and stopping terrorist attacks.
The left is so blinded by their hatred for Bush that they would rather go down with the ship. It's juvenile.
Mark: Moreover, the analysis by independent Congressional research service concluded that Bush's legal justifications for the program are very weak.
Mark, you're restating that the Congressional research service found that the Exective's position about Congressional power was wrong.
There are more kind of self-interest than Republican and Democrat.
Technology absolutely exists, specifically a find function, and has existed for some time, to search for key words in audio or video streams in connection with corporate uses.
Is it such a stretch to think that this might have been refined and then applied in NSA contexts?
From what is generally known in geekdom, one could extrapolate the following (extrapolate, I emphasize; I don't know):
Basically, there's a big pool of bits that no individual listens to, and instead software looks for key words, like "Al-Zarqawi", and then returns selection results containing that key word. It's not source-based; it's results-based, which is why the warrant issue is problematic. There's likely not a team of X-large number of people listening to X-large number of individual streams, or at least there shouldn't be, under this scenario.
To put it more colorfully, if there are a thousand people talking and it all sounds like "rhubarb, rhubarb, rhubarb .... " then any competent software would ferret through to find the pertinent keywords and isolate that selection. Again, at this point in the process, no human ears would be needed and the source is irrelevant--you're still at the result level.
This is not bleeding-edge technology, anymore.
In the "old" world, source drove results. Now, results may be driving source.
What implications does that have for our laws? Another example of technology outstripping our legal, philosphical, and ethical constructs?
Jebus Ann, I step away from the computer for a few hours right after to proclaim your resolution to stay in the real world, and we get this post from you. Oh, well, check the meds, and remember there is always tomorrow.
By contrast, Plame seems to have had a desk job where nothing about her identity mattered, and her identity seems to have been generally known anyway. From the little I've seen, the difference seems plain. I absolutely stand by what I wrote in that earlier statement.
I would like to see you prove that statement that her identity seems to have been generally known. You can't. The CIA in filing the charges, and Fitzgerald and Tatel and everyone else have said her identity was not known.
Transcript of Special Counsel Fitzgerald's Press Conference Valerie Wilson was a CIA officer. In July 2003, the fact that Valerie Wilson was a CIA officer was classified. Not only was it classified, but it was not widely known outside the intelligence community.
Valerie Wilson's friends, neighbors, college classmates had no idea she had another life.
FITZGERALD: The fact that she was a CIA officer was not well- known, for her protection or for the benefit of all us. It's important that a CIA officer's identity be protected, that it be protected not just for the officer, but for the nation's security.
And it was not only her identity that was blown, so was the CIA front organization, Brewster Jennings. While she may have come in from the cold, there was all of Brewster Jenning's other employees, and their networks. Some out of the cold. Some in the cold. All compromised. All compromised, their current work, as well as their historical work. Gone.
Was there any real damage? It's not clear anyone knows. Woodward says the CIA's damage report says there was no damage. The CIA responded saying they haven't done a damage assessment yet. I do not know. You do not know.
Without knowing the details, and admitting that you do not know the details, you use your title of Professor of Constitutional Law to say that Plame's outing was harmless. And without knowing the details and admitting that you do not know the details, you use your title of Professor of Constitutional Law to say that the NSA leak was harmful. And in both cases, while leveraging your position as a Professor of Constitutional Law in order to get interviews on NPR and articles written about you in the local paper, you state to the blogosphere that you cannot be bothered to read the newspapers, read the laws themselves, or read the analyses by other lawyer bloggers. But you will stand by your comments. Shameful Ann, just shameful.
There is much that could be added here. You have railed against Atrios and against Kos and against Barlow. And others. But when they ask you questions you say, "they are big old meanies, I am not going to reply."
The other day, you stated (and I disagreed) that without the domain knowledge and expertise, the average person could not have an intelligent conversation with joe random expert. Please state then your expertise on signal intelligence, on cryptography, on computer science, on espionage and espionage tradecraft, and a myriad of other topics that well known experts in the blogosphere do have, have demonstrated their bonafides, and have said that your conclusions are rank.
"Partisan", You keep using that word. I do not think it means what you think it means.
Best wishes Ann for a more reality based 2006. (Do check your meds.)
It's quite possible the NSA leak was illegal, so I'd expect the investigation to yield a result.
As before, I am skeptical that the published information compromises national security Although the New York Times may have been given information, that went unpublished, with the potential to compromise national security.
I would like to pose a question that perhaps Ann or other knowledgeable persons could address. In times of major war, such as both World Wars, the government actively censored the news for national security purposes. How serious must a conflict be before the President has the prerogative to censor pre-publication for national security reasons?
I'm trying to determine whether the fact that the Administation allowed the Times to publish (with omissions) indicates tht the story did not harm national security or the current conflict is not considered a sufficient threat to national survival to allow pre-publication censorship.
This is a genuine question and not a fishing expedition. I know that censorship during WWII was accepted and, to my knowledge, not challenged legally. Is it reserved for state-state conflict only?
May I point out that it would be possible to come to the conclusion that the "leak" turns out not to be all that "harmful" AND at the very same time conclude that the leaker was dead wrong, for reasons that I, and others, have alluded to?
I think saying the only thing they've learned has to do with the warrants may be touching only one part of the elephant, so to speak. Worth considering, anyway, surely?
Then Bush should have gone to Congress in 2001 and gotten a goddamn reasonable bill passed to have obviated all this shit. If the program was so self-evidentially necessary, he could have gotten that, especially then.
Congress can do closed deliberations on this stuff. If there is some fun new technological wrinkle, it should have been explained and a procedure allowinhg for proper oversight determined.
None of the apologists for the administration have advanced any remotely plausible explanation for why Bush didn't use the obviously Constitutional path clearly open to him.
Thersistes:
I think I pretty clearly suggested that we need to take a look at our laws in light of technology.
But if you want to throw around terms like apologist (yeah, right) instead of figuring out what to do going forward, more power to you.
reader iam, you miss the point. Bush could have taken such a look as you propose in 2001 and done the right thing and gone to Congress. He did not.
His troubles are his own damn fault.
FITZGERALD: The fact that she was a CIA officer was not well- known..."
Oh yeah, thats why Fitzgerald charged Scooter Libby with making false statements...
What is clear from people like Quxxo, Mark and others is that the Democratic party is not serious about National defense. They treat our defense like its a joke or a partisan game.
What happens when the Bush hatred runs out, where will the middle go... will they vote for crazy suicidal democrats.
A lesson from history: The Federalist party opposed the War of 1812 and President Madison with the same ferocity (and idiocy) that Democrats oppose Iraq and President Bush today. The opposition reached its height with the "Hartford Convention" where Federalists laid it all out by proposing several Constitutional Amendents, all designed to undermine the war and the Presidency.... sound familiar?
Within 5 years after Madison retired, the public turned on the Federalists for being "unpatriotic" and not being a serious party. The Federalists ceased to exist as a party!
Much of this occurred because the War of 1812 turned out much better than it seemed to be going while the war was being waged... sound familiar?
These lessons from history are very prevelant. Democrats better hope Iraq does not evolve as a free and democratic state.
What a shame to hope against freedom.
:"...Bush could have taken such a look as you propose in 2001 and done the right thing and gone to Congress. He did not...."
I don't get it. How would this have helped?
Bush does not need authorization from Congress to spy on Al Qaeda making phone calls to the United States.
Ah.
You're concerned about Bush's "troubles." I'm concerned about our challenges.
And I'm trying to in particular focus on the technology and issues of law, and how tough it is to get those two in line: how tough it has been, how tough it is, and how tough it will be, as we move forward, in the world that exists--and would exist even if Bush and his entire administration dropped dead tomorrow and the president of your, or my, or anyone else's, dreams suddenly took office.
Any president's troubles are our troubles, by definition. How weird to think otherwise.
Sloann, since you keep making the same argument, I though this might explain what you are doing wrong.
So, Pooh--do you just happen to come across that kind of thing coincidentally, as you need them? Or do you have a reference library of some sort?
And where's the 'raptor, to capture my mood about now?
; )
Bush does not need authorization from Congress to spy on Al Qaeda making phone calls to the United States.
The AUMF gives the President some rather wide-ranging and unfettered power to determine (with no reference to a court) who the appropriate targets should be, but the language of the statute actually says "the President is authorized to use all necessary and appropriate force" -- and it is perhaps not clear that what is at work here is "force."
If the President, under Article II, has such wide-ranging powers that he can order these searches without any statutory authorisation whatsoever, on the other hand . . . well, I think something is not quite right. The argument that if that's the case, FISA is superfluous is not, I think, entirely persuasive, because there are benefits to a systematic procedure even if we occasionally bypass that procedure because we perceive a great need. But I do think that endowing the President with such powers, especially to cover those ~500 intercepts which were evidently domestic is moderately troubling.
----
On the other side, with regard to Thersites' argument, I think that the Congressional consultation issue is perhaps beside the point as far as the warrants issue is concerned -- isn't that mostly a Fourth Amendment search concern? I don't think Congress can strip people of their fourth amendment rights no matter how much consultation they do.
To the extent that the argument that warrants were necessary is instead grounded in the FISA law, the question whether the AUMF overrides FISA for its limited purpose (i.e. that the "he determines" language in the AUMF obviates the need for a court to make the determination) is similarly an issue that does not really require Congressional consultation. It requires legal analysis.
That said, the President did consult with top leaders of Congress -- hence the Rockefeller letter, and (I think) Pelosi's airing some concerns back when the program began. In their turn, those Congressional leaders were not so exercised over the program that they, e.g. called for a closed-door session to discuss the intelligence gathering issue. Events in the past few months have made quite plain that they know how to do that if the mood strikes them, but they didn't. The conclusion I draw is that they weren't all that concerned. Or (more likely) that they couldn't figure out what was going on, and didn't care to find out.
Audio of Bob Barr on the Charles Goyette Show, ffwd to 21:00 into the show about when Barr comes in. This is a far more interesting podcast than the next Audible Althouse.
Congressman Bob Barr, current chairman of Patriots to Restore Checks and Balances was of course one of the key leaders of the effort to impeach President Clinton discusses how and why what George W. Bush did was illegal, and what Bush could have, and should have done instead.
Ann, visit checksbalances.org and see what Bob has to write about the greatest innovation of American democracy. It was a system in which monarchs could be neither born nor chosen, and where the inherent and natural rights of the individual would be preserved; not through mere words, but through the everyday give and take of a deliberately fractured political process.
Although this arrangement has proved more resilient than any other political system in world history, it remains highly vulnerable. It is especially susceptible to the exceptional stress that any country faces when its national security is at stake. We are in such a time today.
The continuing trauma repercussions caused by of the deplorable terrorist attacks of 9/11 has knocked our system of checks and balances askew. The words "national security" are being used, unwisely, as a catch-all to justify the ever greater accumulation of power in the executive branch.
We face grave threats, yes. This new organization, Patriots to Restore Checks and Balances, stands foursquare with the American people and the administration against our enemies. We believe, however, that our political system is more than able to secure our safety and our liberties. We need not abandon the separation of powers, or the checks and balances that maintain that separation, to defeat the terrorists. Indeed, if we do abandon them, we will have handed them a victory of tragic and historic proportions.
(Sloany, a tip of my hat to your bot masters, there are times I would swear that you weren't a SIM. You in fact are proof that the Turing test will be passed within a few short years.)
Bob Barr, Lindsey Graham, Arlen Specter, John McCain, Barrons, the WSJ, any claim that this is a partisan attack is completely unfounded and intellectually dishonest.
I don't get it. How would this have helped?
Bush does not need authorization from Congress to spy on Al Qaeda making phone calls to the United States.
I'm sorry, I didn't realize you were mentally ill.
Would you like a carrot?
I feel so hurt.
RIA, surprisingly, I spend way too much time on these here intrawebs, so I see little things like that all the time. Occasionally, serendipity smiles upon me and I can make near instant use of one.
Just good clean livin.
Reader,
'But if you want to throw around terms like apologist (yeah, right) instead of figuring out what to do going forward, more power to you.'
Begs the question though. Why not use the process when they knew the warrants would be approved.
'Bob Barr, Lindsey Graham, Arlen Specter, John McCain, Barrons, the WSJ, any claim that this is a partisan attack is completely unfounded and intellectually dishonest.'
Apparently they don't they don't take national security seriously.
The new 'unpatriotic'.
I would like to say, however, that I am impressed with the number of Ann's defenders who come from a Small Midwestern Internet and are shocked at just how partisan things can be in the Big Bloggy City. It's true. Maybe John Lott can come and help them out in their sore distress.
Ricardo: [O]ne of the major lessons we should be learning from the current messes, is how wise our Founding Fathers were when they devised a system which encourages adequate checks and balances among the three branches of government.
One of the things we should be learning from the old messes is how wise our Founding Fathers were when they created a strong executive with broad, nearly unchecked powers over foreign affairs.
Also, in these days when the President is apparently not allowed to control and direct the FBI and the CIA, we see the Founders' wisdom when they noted that needlessly multiplying representatives and powers dilutes public attention to them, nor does it increase public accountability.
Clinton, Bush (I or II), Reagan, Carter, Nixon... the Executive branch should only respond to the people's elected representative: the President of the United States.
At times when one party (of whatever color) exerts an inordinate control over those branches, we seem to end up with a system in which "absolute power corrupts absolutely".
So the Democrats, who from 1930 to 2002 dominated the House and/or Senate, were all unspeakably corrupt? Jack Kennedy? George McGovern? Hubert Humphrey. All criminals? Wow. I'll have to think about that.
It's not unlike a roulette player, spreading his/her chips around on the board to give him/her a better chance at winning.
You never took math, obviously. You win at roulette by not playing.
Remind me to never turn down a chance to play cards and other games of chance with you. My daughter will someday require college money, and as a great man once said, it is immoral to give a sucker an even break.
I did not say that I thought there shouldn't be court oversight in some fashion or some way. The only thing I said about that, in one particular comment on data mining, was that the nature of the technology makes warrants problematic. Not unnecessary, not unrequired, not undesirable--but problematic. Thus my suggestion that technology might be running ahead of our current constructs.
Finally, regarding the small Midwestern internet thing: Oh, please. What a cheap shot, and a silly one. What on earth would you know about where people have lived over the course of their lives or what they know about "Big Bloggy City"?
(Psssssst. Some of us have lived elsewhere before, for decades. Been on "different" internets. Even know their way a bit around DC-Balto., NY, Philly etc. and have been in cities across the U.S. )
You can be partisan and discuss things objectively. Or do only us magically-transformed-into-rubes-when-we-moved-off-a-coast think that? Guess so.
I'm a cynic.
In this day and age, I assume virtually anybody may have access to record virtually anything I say or do.
What concerns me is what they do with what they have recorded.
Don't trust the administration? Then tell us how you accomplish the task without the same methods.
Cut out the partisian wrangling - it's tiresome and accomplishes nothing.
Is "CRS" supposed to be a recognizable reference? In Supreme Court cases, "CRS" hasn't been used since 2003, and in the whole history of the Court, there are only 12 references. (And there are only 26 references to the Congressional Research Service, to give you an idea of how important it's been in constitutional law.)
Is CRS in regular usage in news stories? The NYT wrote "CRS" 3 times over the past year, and each time it referred to the Center for Remembering and Sharing!
And I deleted the anti-Sheck comment that a few people responded to, because it was written in abusive language.
Does quxxo = anti-shek? I've been wondering this for a while.
Both go to ridiculous lengths to get Ann's attention, insulting her and her blog by turns. And they both, are I think, inappropriately personal with her, and they have a stalker-like quality in their stubborn refusal to GO AWAY even though they both supposedly hate Ann, the topics she chooses, the topics she doesn't choose, the regular commenters here, etc...
Anyway, if you guys aren't the same person, why don't you become friends and take up tennis or something.
Knoxgirl: "Does quxxo = anti-shek?"
That's not fair to quxxo, who may be overbearing and overlong at times, but does seem to be about trying to understand things and advocate his positions. Anti-sheck is just a hater. But I wouldn't be surprised if he was the reincarnation of one of the other nasty commenters we've seen around here in the past.
Toadlady, you could be right, I tend to not read everything s/he writes, so I could have missed that, but it really makes no difference either way.
Ann, I'd give quxxo more cred if he didn't fill up the comments with overlong posts all the time and pepper them with stuff like "take your meds." I don't necessarily believe that he wants his opinions taken seriously as much as attention from you... (or she/her, blah, blah)
Re: Chum
Why not use the process when they knew the warrants would be approved.
We don't know enough to say for sure, but the evidence available suggests to many people that what was at work was not the usual sort of surveillance, but some kind of automatic computer-aided sifting, maybe connected with Echelon, such that securing a warrant for each new momentary surveillance target would have rendered the system wholly unworkable. Or at least, too slow to be meaningful. Reader_iam points this up earlier in the thread. If you want a more hysterical (yet compelling!) take on what it may be, look at Amygdalagf. I think Orin Kerr's musings on the topic also turn eventually towards speculation that this kind of technological approach may have been behind the lack of warrants.
Democrats are, with each salvo against the war effort, becoming increasingly dangerous to our country's safety.
In World War 2, the government routinely and without warrants collected text from telegrams sent between Europe and the US. The authority to do this was not questioned or undermined in the way we are doing so today.
Isolationists on the left and right operate on the spurious notion that islamofascists will leave us alone if we leave them alone (or worse, suggest, depite 9/11, that they are not a threat after all).
Listen to their own words: Hussein Massawi, former leader of Hezbollah, said it thus: "We are not fighting so that you will offer us something. We are fighting to eliminate you."
Revealing the US spy operation was dangerous, self-destructive, unpatriotic, and the act of a vile traitor. The democrats are no longer just opposed to the success of the US, they are on the other side.
I see them as traitors all. This is no parlor game; shame on them. Jail time is an insufficient punishment.
Toadlady -
Yes, it is Mrs. Quxxo.
Despite pledges to remove him that now date to over a year ago, Norman Minetta is still Bush's Transport Secretary. This is the man who pretends that FDR's internment of Japanese Americans during WWII was a "profiling" measure that the country cannot repeat in dealing with Muslim terrorists. "Politically neutral" is a canard. If anti-terrorism measures are to have any credibility at all, Minetta has to go, and the PCBS that fosters his attitudinizing in face of life-and-death exigencies will have to follow. Until then, everything bruited about in this column and elsewhere is as relevent as introducing your teenage daughter to Hell's Angels on Offissa Krupke's theory that they're "misunderstood."
pb: It sounds as if you're more comfortable as a monarchist, than as a constitutionalist. Am I reading that correctly?
geoducks2: Thanks. You're a credit to Olympia. I always knew I liked that place.
Ann: I think that trying to examine the CRS's record as a "source", may undervalue its genuine influence as the research arm of Congress. I don't believe the people who attack it (on this post) as being partisan, really understand how much valuable information the CRS provides to members of both parties. Utilizing the profound research assets of the Library of Congress, the CRS is able to provide members with background papers which often are much less "tainted" than those provided by lobbyists. And in any event, the CRS serves as a "check and balance" on materials provided to members from other sources. The impact of the CRS may be subtle, but you'll find members' offices full of their documents and memoes, which certainly has an impact on legislation.
quxxo: I mean this sincerely. Would you please tell me how to pronounce your name. The best I come up with is some Peruvian thing like Qu-ho. I need a sound to go along with the printed name. And I agree with some of your key points. Thanks.
You really nailed it here, Ann:
As far as the Plame situation goes, I have NEVER offered an opinion about it at all. Why? Because it is complicated. It involves legal questions. And I know so very much about the law that I know that I do not understand it in this case. That is why I blog: to not explain issues in my particular professional field, a field in which I am not especially interested. Why is this so surprising?
I do not understand the issues involved in the Plame leak or the domestic surveillance issue, as I have repeatedly stated. All I know is that the Plame case is difficult, but that the leak there is not important. Likewise, the spying revelations are a mystery to me, but it is clear that that the leaker in this case is a traitor who should be shot for compromising national security in a way which is impossible to actually describe intelligibly, but which is nevertheless very real. American jurisprudence is very advanced. That is why it is so hard to explain.
As Alex Trebek would say, "nicely done!"
Ricardo: I'm not disparaging the CRS, just responding to some idiot who saw fit to savage me for not knowing what the letters referred to when they were used without explanation in one of the earlier comments.
Ann: Actually, I think you're doing an excellent job of navigating your blog through extreme-right and extreme-left shark filled waters. The right thing to do is just ignore the attacks, and stay on message. And your message ... which if I'm interpreting it correctly is actually pretty "centrist" and lauds the value of engaging one's brain before engaging one's mouth ... is something that needs to be heard in this day and age, and will find resonance with a majority of the population. So, hang in there.
The fact of the program -- given what little I know -- does not disturb me, at all. What disturbs me is the President's repeated assertion of an absolute right to set aside the law, whether that is FISA, or the Geneva Conventions or U.S. prohibitions on torture, or U.S. prohibitions on indefinite detention without trial.
If you are not disturbed, or if your partisan loyalty to Bush does not permit you to be publicly disturbed, you are pretty much worthless as an American or a human being.
Re: "If you are not disturbed, or if your partisan loyalty to Bush does not permit you to be publicly disturbed, you are pretty much worthless as an American or a human being."
Yeah, like that barbarous Lincoln, suspending habeas corpus, shutting down presses, and removing legislators all in the name of preserving the Union during a war.
At the time, lots of folks thought Lincoln was worthless. Someone killed him for it. Is Bush like Lincoln? Only in that he is President while we are at war. And misguided nihilists like you think we are obliged to play by Queensbury rules, observing every jot and punctuation mark, while our enemy ignores such niceties and means to kill us while we fritter our time trying to avoid any meaningful sacrifice.
That's not just a foolish consistency any more, it's providing aid to the enemy, and therefore treason.
Just out of curiosity, on a scale of one to ten with one being the anarchists of the late 19th century and ten being an immediate and mortal peril to the Republic like the Confederacy in the Civil War or the Axis in WWII, where would we as commenters place the current terrorist threat? I'm just looking for a number.
As of today, I'll grade it a 4. Worse than the Mexican-American War, but not as bad as the War of 1812.
Jumping in where I probably shouldn't, I see the major problem with the NSA endeaver being that from a technological point of view, it is now pretty much required that interception be on U.S. soil - which moves it from 1801(f)(1) to (f)(2).
So, if the NSA is doing what the President suggested, essentially recording any conversation made by Al Qaeda, then in the past, this would not have been considered Electronic Surveilance because the target was not a U.S. Person. But now, with the change in technology essentially forcing them to intercept on U.S. soil, it is - because 1801(f)(2) doesn't care about who the target it, while (f)(1) did.
I should add that there is some reason to believe that a lot of purely foreign traffic is now being routed through the U.S. on the behest of the NSA, and that this is the real target of the surveilance program that is at issue here. It is just that the occasional person in the U.S. (presumably a U.S. Person) is being recorded as a byproduct of this program.
I will be one of the first pushing warrants if a U.S. Person (which is defined as a citizen or legal alien) in the U.S. is targetted. But, so far, I have seen nothing credible claiming that. So far, it seems much more likely that the recording of people in the U.S. (whether U.S. Persons or not) is a byproduct of the international surveilance.
Of course, we shall see how this all works out, as more details become know (and can be verified).
As to whistleblowing. As I understand it, the established procedure is to go up through the agency's Inspector General, and if that doesn't satisfy the whistleblower, then he can go straight to the Joint Intelligence Committee, or something akin to that. Indeed, the last scene of Clancy's "Clear and Present Danger" had Jack Ryan (Harrison Ford) doing exactly that - going to the committee as a whistleblower.
But as I pointed out in a previous thread here, whistleblowing is classic civil disobedience. And the well established cost of that is to pay the known price - in this case, presumably, the prison time.
Let me add that in order to avoid the tag of being a hypcrite, if someone in the Administration broke the law in PlameGate, then they too should pay the price, and do the time, if so warranted.
Because the hyprocricy claim goes both ways. Those who want Libby, et al. to do time because of the alleged disclosure of Plame's covert status are, IMHO, hypocrites if they don't also want the leakers of the NSA stuff to also do time, if convicted, and should be just as supportative of pursuing this later leak as they were the leak of Plame's status.
Ann,
I'm just curious: why would you give a rat's a** what "Turd" Barlow thinks of you?
(Sorry for posting the comment so late, btw.)
Oh well played Kim. Turd Barlow, you say. A classic knee-slapper that one. Other than that. Great point.
Kim: Although I think it's futile to try to have a conversation with him, I realized he had admitted his own hypocrisy and was in the mood to needle him about it. My general approach to people who trade in unfair attacks is to ignore them (and certainly not to link to them), as some people who like to come over here and stamp their feet are well aware.
I wasn't saying I didn't care about that leak. Not there or anywhere else!
You are a total liar.
"The Plame Rove Affair is One of the Biggest Wastes of Time of My Lifetime..."
I see Roger L. Simon is saying exactly what I'm thinking.
http://althouse.blogspot.com/2005/07/plame-rove-affair-is-one-of-biggest.html#comments
Ted of Crooked Timber states "In the case of the NSA leak, I’m afraid that I don’t understand how it compromised our national security."
Time Magazine's Joe Klein has an answer for him. Time is reporting damage to the US: "There is also evidence, according to U.S. intelligence officials, that since the New York Times broke the story, the terrorists have modified their behavior, hampering our efforts to keep track of them—but also, on the plus side, hampering their ability to communicate with one another."
http://www.time.com/time/columnist/klein/article/0,9565,1147137,00.html
Very similar to Osama ceasing use of his satelite phone when the fact that his conversations were monitored was published.
If Scooter Libby broke the law by leaking Plame's name he should go to jail. The same for the people who leaked the NSA information to the New York Times.
I hope I am not breaking blog etiquette by referring to the original post.
Kathleen: Your reading is deficient. What I was objecting to was overheated obsession with who would be indicted with the eagerness to bring down Rove. I care about all national security leaks. To the extent that the Plame affair has a component to that effect, I am concerned and have never said otherwise. Watch how you throw slurs around. It's bad for your credibility.
Prof Althouse - If you were really just objecting to "overheated obsession with who would be indicted with the eagerness to bring down Rove" then I find it very surprising you did not say so.
you in fact called the Plame affair a "tiny scandalette" in your comments to that thread. That, plus "the Plame Rove Affair is one of the biggest waste of time of my lifetime" does not come anywhere close to saying that you are "objecting to the Rove obsession (but you really care about national security!!!1)".
It is rather funny that your first response to any demonstration of your inconsistencies or faulty reasoning is met with "you just aren't understanding what I said." Try to write more clearly. Or else bury that tired excuse. It's bad for your credibility.
Post a Comment