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The GOP Congress and the NSA Surveillance Program:
There were a bunch of signs today that Republican leaders in Congress are not convinced by the Administration's defense of the NSA surveillance program.

  First, Heather Wilson, Chair of a House Intelligence Subcommittee with oversight over the NSA, called for full Congressional hearings on the program. Second, Senator Specter, Chairman of the Senate Judiciary Committee, announced that he plans to introduce legislation requiring the program to be submitted to judges of the FISA court for review. Third, James Sensenbrenner, Chairman of the House Judiciary Committee, sent Attorney General Gonzales a list of 51 questions about the program, many with several parts. The Sensenbrenner letter can be viewed here in .pdf form.

  In response to this resistance, the White House has agreed to brief members of the House and Senate Intelligence Committees on the details of the program. The House Committee received its briefing today, and the Senate Committee apparently will be briefed soon. Stay tuned.
Kovarsky (mail):
The link to Specter's intended legislation wasn't that specific, and I was hoping it would answer my question which I now pose here.

I am assuming that, even with legislation granting it jurisdiction, FISC can only review the Fourth Amendment Question, correct? In other words, there's actually a lot in this for the administration because they can avoid the statutory and separation of powers questions, right?
2.8.2006 10:14pm
Tom Holsinger (mail):
Which surveillance program is Specter talking about? I don't think he knows or cares - he's a Senator and beyond such mundane details - but it is bloody important. I said this in another NSA thread today:
"Ditty said: "Purely domestic surveillance is the responsibility of the FBI, not the NSA."

This is useful in understanding how misleading Attorney Gonzales' testimony is, and how gullible the Senate Judiciary Committee is.

The same NSA staffer, sitting in the same cubicle in an NSA cube farm, wears many different invisible hats. When conducting domestic surveillance he wears his invisible FBI hat. When conducting foreign surveillance he might be wearing no hat (acting in his official NSA capacity), or invisible hats with the flags of various foreign countries on them while conducting surveillance as their duly appointed agent. All of these hats are legal fictions.

Ditty, the FBI does not have the budget, the personnel, the equipment or the institutional expertise for more than minor electronic surveillance. It must rely on personnel detailed from the NSA. As a practical matter, the NSA is it for electronic surveillance of any sort.

So Gonzales sits there assuring the Senate Judiciary Committee that the NSA is only doing foreign surveillance, with invisible fingers crossed behind his back because his definition of NSA at that point is of NSA personnel not wearing any of their invisible hats. And the Senators believe him.

Some people are catching on to this game."
2.8.2006 10:29pm
Noah Klein (mail):
Kovarsky,

I think that the court would be able to review all constitutional or statutory concerns related to this program. The court does have all purview on issues related Foreign Intelligence Surveillance Act.

Noah
2.8.2006 10:32pm
nk (mail) (www):
I listened to the Senate hearings two days ago. Lindsay Graham was a totally different person from the one who spoke up during the Alito confirmation hearings. He was actually hostile to A.G. Gonzalez, referring to the "major organ malfunction" in the torture memos (which also makes me cringe). And he does not appear to be alone -- Specter and DeWein are on his side. Although I, personally, have no problem whatsoever with the government monitoring all overseas calls I can see that the A.G. has a very big credibility problem with the Congress. (In my younger days I was something of an amateur radio buff and I resented being restricted in what radio signal which were just floating around I could capture on my scanner. I see it as shouting to your neighbor across the street. If you want privacy, mail a letter.) I wonder that if we could just move all our listening posts out of U.S. territory we might just avoid the issue. I mean, is a listening post in Afghanistan monitoring a conversation from the United States to Syria subject to FISA?
2.8.2006 10:37pm
Jack John (mail):
FISC has the jurisdiction -- Specter wants to pass legislation forcing the Executive to file a case. Isn't that unconstitutional?
2.8.2006 10:39pm
nk (mail) (www):
Afterthought: Could we not outsource it? The Russians probably ahve pretty much the same capability. Can we pay them to monitor us?
2.8.2006 10:41pm
Noah Klein (mail):
Has anyone read the questions submitted by Chairman Sessenbrenner?

These are the most ridiculous questions I have every seen. Aside from the fact that these questions are just softballs tossed up to the DOJ masked as oversight, they all address issues that the AG discussed at the Senate Judiciary hearing.


Noah
2.8.2006 10:45pm
Kate1999 (mail):
Jack John writes:

FISC has the jurisdiction -- Specter wants to pass legislation forcing the Executive to file a case. Isn't that unconstitutional?

Precedent, please?
2.8.2006 10:49pm
Doug Hoffer (mail):
NK:

We could outsource it. We already outsource quite a bit of this kind of work to the British government through the Echelon program.
2.8.2006 10:57pm
anonymous22:
I never supported the Bush administration, but I recognize what's happening here-- kicking Bush while he's down to score political points and enhance moderate/civil libertarian credentials.

There is a serious constitutional question to my mind about the FISA court that I don't think is answered by "Congress can establish whatever Article III courts it wants to with as limited jurisdiction as it pleases." Congress could effectively strangle the executive branch by means of these courts if it so chose. My hypothetical is if Congress created an Article III court in response to Pres. Nixon impounding of federal expenditures to regulate dispersal of this money, complete with causes of action against those who lose out via impounding.

That said, this is a lot of barking without any real bite. Bush will veto any new legislation and Congress will sustain the veto.
2.8.2006 11:04pm
Tom Holsinger (mail):
anonymous22,

It has to get through the House first. Right now I see only grandstanding.

Furthermore we'll going to take on Iran this year, and it has nukes. There is NO F****** WAY that Congress will do anything which might help the mullahs nuke us at home. Especially in an election year.

So it's camera-hog city all the way - get those campaign contributions comin'!
2.8.2006 11:10pm
minnie:
Orin, I know I have touted Glen Greenwald before on this site, as I have touted you on his and other sites, and I must admit for a moment in the last few days I lost a little faith in Glen, but I really, truly believe that Glen's post of today comes close to being the definitive article on this whole subject. It addresses the matter from all points of view, and concludes that legal arguments for and against are likely to be extraneous and unproductive, in light of the obvious conclusion after Gonzales's testimony that the goverment's position is that it's heard all the arguments, it asserts it is not breaking the law, and it intends to defer neither to Congress nor to the courts and stick with its present path.

As an educated guess is that Congress will fail in any attempt to intervene meaningfully, as Glen points out, he has constucted what he perceives to be the only strategy to keep this issue alive enough to reach the public at large and perhaps stir them up enough to demand redress for this dangerous turn of events. I fervently hope you can read today's post at Glenngreenwald.blogspot.com and comment on it here. I consider you one of the few most important commentators on this issue.

As for Heather Wilson, she could fall into one of three categories:

l) She's for real, and she cares deeply about this issue.
2) She's in a political fight for her life and needs to increase her chances of winning.
3) She's one of "them", hoping to grab hold of the issue and guide it through in a way that will turn out to be non-theatening to the Administration.

I hope it's the first, but the Oliver Stone in me cannot dismiss the last as a possibility.
2.8.2006 11:12pm
Noah Klein (mail):
A22,

First, I think it is ridiculous to make any statement with the certainty that you imply in your post as to how Congress will act. Bush is weak; he may just accept whatever action Congress makes as long as it allows him to continue this program. Furthermore, the composition of Congress as to this issue is far from clear. I doubt many would have said that four Republican Senators would be so hard on the AG as they were on Monday.

Second, the FISC is an Article III court performing a traditional judicial function: granting warrants. Trying to make the analogy that you make is way off base.

Noah
2.8.2006 11:16pm
minnie:
PS. Seems like the problem is the AUMF, not the FISA.
And we need a new definition of "War". Our country was not created as a "wartime" democracy. There are laws for peacetime, and laws for when we are at War. Since the two have become one, I personally think that only Congress should be able to declare War, and any authorization to use force should be exquisitely specific, and for a specified duration of time.
2.8.2006 11:28pm
Medis:
Kate1999,

I also don't think Congress can make the government file a case as a plaintiff, but there are alternatives--eg, Congress could give standing to some third party to seek a declaratory judgment. In that case, the government would be named as the defendant, not acting as plaintiff.

a22,

You say: "My hypothetical is if Congress created an Article III court in response to Pres. Nixon impounding of federal expenditures to regulate dispersal of this money, complete with causes of action against those who lose out via impounding."

Maybe I don't understand your hypothetical, but I'm not sure why the problem in this case would be the existence of an Article III court with limited subject matter jurisdiction. Rather, I think you are objecting to the causes of action (which I don't quite understand given your description). In other words, would your hypothetical situation be any better in your view if the federal district courts had jurisdiction to hear these causes of action, rather than some particular Article III court of limited jurisdiction? Why does that make a difference?
2.8.2006 11:54pm
George Gregg (mail):
I'm wondering what is the degree of legal jeopardy for President Bush in all of this. If it's determined by the Senate Judiciary Committee that the program should have been sent to FISC, but was not, that's pretty clearly a felony (right?).

Granted, Congress may fall back on partisan lines. But if it chooses not to, then impeachment is a possibility, isn't it?

And if impeachment finds as the Senate Judiciary Committee did (that a felony was committed), then where does that leave President Bush and AG Gonzales, with respect to legal jeopardy?
2.9.2006 12:13am
OrinKerr:
Minnie,

Providing a link to Glenn Greenwald's blog in the comment thread is fine. Starting a Glenn Greenwald Fan Club blog is great, too. However, I don't think it's appropriate to cut and paste extremely long posts from Greenwald's blog in comment threads here just to make sure that VC posters and readers see it. In light of that, I'm deleting your comment above.

Finally, Minnie, yes, I am reading Greenwald's blog, too. I assure you that if I find something that I think deserves comment, I can make that decision without your additional urging.
2.9.2006 12:14am
KMAJ (mail):
We are in the middle of a legislative branch versus executive branch showdown. What is wrong in the analysis, so far, is the assertion of unprecedented claims of executive branch authority reaching dictatorial levels. That is purely a straw man emotion laced argument without any historical foundation. Presidents up until Nixon, claimed far more executive authority than Bush has with the NSA surveillance. From a historical perspective, it is the legislative branch that is seeking unprecedented authority. I do not think any defender of Bush would argue that he is not trying to reclaim some of the executive branch authority that was lost in the wake of Vietnam and Watergate, but it is clearly NOT an unprecedented grab for executive authority. He has not voided FISA, in fact, he has used the FISA process more than any president since its inception.

I believe there is sound legal ground that could determine parts of FISA as unconstitutional, as raised in Sealed Case, if that case were to be made. The whole foundation of the critics results in a weak executive branch, which is an extremely dangerous proposition in war time.
2.9.2006 12:22am
???????:

He has not voided FISA, in fact, he has used the FISA process more than any president since its inception.


KMAJ,

There is a difference between how often the FISA process may have been used by a particular president and a president's decision to use process in contravention of it-=Whether or not Bush has used FISA more than any other president doesn't mean that the others were using something illegal in place of it. Nor does using FISA more than others give one a free pass to try something new and illegal just for kicks.
2.9.2006 12:36am
Bruce Hayden (mail) (www):
Well, if the President is indicted for violating some law, he can just pardon himself and fire the prosecutor (assuming that it is a federal prosecutor). His only real limit on his pardon power is that he can't override an impeachment. Or, he can just have his good friend, Alberto Gonzoles, order that he not be prosecuted. If a U.S. Attorney actually did indict, he could be either fired or transferred to a more hospitable climate, such as Fargo, N.D. in the middle of winter (I think that that would be worse than Juneau, as Alaska is glorious in the summer).

Interestingly, Congress is immune from arrest, except for treason, felony, or breach of peace, but the President apparently is not. I am assuming that the drafters figured the same way as I do, that the President doesn't need this protection, as he has the Pardon power.

As I keep saying, the only real redress against a President overstepping is impeachment, and I don't see that happening with a Republican House elected by Red State voters, probably a large majority of whom are just fine with the NSA surveilance program.

Sure, if the House refuses to impeach, as I predict they would, the Republicans could lose the House in the next election. But I see that unlikely. Most of the House these days is safe in the hands of one party or the other, through computer generated Gerrymandering. The number of true swing districts is fairly small, and the Democrats would probably have to pick up almost all of them to gain control of the House.
2.9.2006 12:46am
KMAJ (mail):
Prof. Kerr,

I would be interested in your thoughts of the legal implications and culpability that the investigation into the leakers might present for: 1.) The NY Times 2.) The reporters and 3.) The leakers, if identified, particularly if one or more turn out to be elected representatives or senators.

We have had much analysis of the NSA surveillance program, but none on the opposite side of this issue, and with Goss' recent statement in testimony last week before the Senate Select Committee on Intelligence:

"I've called in the FBI, the Department of Justice. It is my aim and it is my hope that we will witness a grand jury investigation with reporters present, being asked to reveal who is leaking this information,"


Will this result in reporters in jail ? Can the NY Times be held accountable ? Certainly the seriousness of this leak rises above the level of the Plamegate fiasco.
2.9.2006 12:46am
KMAJ (mail):
??????

You make the same mistake that others do by claiming illegality when no such ruling or determination has been made, and your reasoning of 'just for kicks' does not merit serious consideration.
2.9.2006 12:50am
Medis:
KMAJ,

You are confusing two different kinds of authority. The Presidents through Nixon were using authority in the absence of legislation (as was Clinton in the Ames case, for that matter). What is at stake here is the President claiming to still have that authority despite subsequent legislation.

And your only ground for saying that legislation is unconstitutional is that the President could not always do exactly what he wants, when he wants, in the way that he wants to do it. Apparently, whether or not the actual text of the Constitution authorizes Congress to pass such laws is of no consequence to your view--as long as you are convinced that we need a Strong Man to lead us to battle, one unbound by the will of any other, weaker, men--the text of the Constitution does not appear to matter.

In short, you say that if the President can't do that--declare legislation unconstitutional for the mere fact that it contradicts his will in any way--it makes him too weak to fight our wars. But your principle has no apparent limits--and Gonzales was unwilling to articulate any as well. And your view is ultimately based purely on your policy preferences, and not the written Constitution.

And that is what worries people.
2.9.2006 12:51am
Just an Observer:
My own impression of Sensenbrenner's interrogatory is that it is a very mixed bag. Some questions are substantive and might advance the general knowledge of the NSA program, its history or its rationale. Many questions are softballs. I expect that several House Judiciary members, with different motives, might have contributed.

The news of Specter's bill is very interesting to me, but the Bloomberg report was not very informative. I await the chance to read the legislation. In particular, I wonder if its effect would depend on good-faith compliance by DOJ to initiate a test case -- as Specter's comments earlier this week seemed to imply -- or if the bill somehow could compel initiation of a case. The greater the chance of getting the merits into court, the more the the administration will be threatened.

Today seemed to be a day for the the White House to make nice, agreeing at least to brief the full Intelligence committees on the operational outline. Rep. Wilson's call for more information probably did have an effect, and she was saying somewhat gushily positive things about the White House reversal. Rep. Harman, one of the Democrats in the Gang of Eight who has been privy to the fuller briefings in the past, generally had a positive reaction after the afternoon briefing. She was interviewed on PBS along with Sen. Graham.

The thing to remember is that this broadened oversight and accompanying peace feelers from the White House are not the end, but the beginning of a process. The results are to be determined.
2.9.2006 12:57am
Medis:
On gerrymandering:

There is an interesting little problem built into gerrymandering. The basic idea is to give your party a majority in as many districts as possible, and the opposing party a majority in as few as possible. When you do that, you end up with many districts in which your party has a relatively small majority, and a few districts in which the opposing party has a relatively huge majority.

And it works well--unless there is a substantial and widespread shift in voter sentiment. In such a case, the gerrymandering party can get burned badly, as all those districts which were supposed to have relatively small majorities in your favor suddenly come into play.
2.9.2006 12:59am
Bruce Hayden (mail) (www):
But is the President acting illegally? You assume he is. A bunch of "Constitutional Scholars" say that he probably is. But the Administration is making a colorable argument that he isn't. As I have said before, this could revolve into a serious Separation of Powers issue among all three branches of the government. But if it does, my money is on the President. I don't see either of the other two calling his bluff - because there is a real chance that he wouldn't be bluffing. Remember, he has a couple of things going for hime. First, the Bully Pulpit. And, more importantly, neither of the other two branches wants to be held responsible for shutting down the NSA program, if another 9/11 level of terrorist attack happens, and the NSA program could have possibly prevented it.

At this point we don't know if the President, NSA, et al., have done anything illegal for a number of reasons. First, we don't have all the facts. A lot is assumed, but much of that is just reading tea leaves, since most of the important details are classified. Second, there has been no final adjudication on the issue. And, finally, there is the question of who has the final say in interpreting the laws and the Constitution. Most assume it is the Judiciary, but President Bush would not be the first president to question this.
2.9.2006 1:01am
Medis:
Bruce,

You are leaving a few things out of your political analysis. One is that this is not a particularly popular President. A second is that unlike the President, the members of Congress have to run for reelection--and their own poll numbers don't look so hot now either, particularly the Republicans. A third is that many of these members of Congress presumably plan to be around long after this President is gone. There might even be--gasp!--another Democratic President some day.

Of course, I realize you believe that the "red state voters" are all behind the President 125%, and that will insulate him if all else fails. But I question that assumption, and I think it is quite telling that already a number of Republicans in Congress are not following orders.
2.9.2006 1:09am
Just an Observer:
We were not the only ones confused by the conflicting arglebargle by Gonzales and Hayden over "probable cause" and "reasonable basis" standards being applied in the NSA program.

From an interesting Washington Post story 2/9/06:


Shortly after the warrantless eavesdropping program began, then-NSA Director Michael V. Hayden and Ashcroft made clear in private meetings that the president wanted to detect possible terrorist activity before another attack. They also made clear that, in such a broad hunt for suspicious patterns and activities, the government could never meet the FISA court's probable-cause requirement, government officials said.

So it confused the FISA court judges when, in their recent public defense of the program, Hayden and Attorney General Alberto R. Gonzales insisted that NSA analysts do not listen to calls unless they have a reasonable belief that someone with a known link to terrorism is on one end of the call. At a hearing Monday, Gonzales told the Senate Judiciary Committee that the "reasonable belief" standard is merely the "probable cause" standard by another name.


The lead of the story reports:

Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush's eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.

The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly -- who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.
2.9.2006 1:10am
Bruce Hayden (mail) (www):
Medis,

You are right about the problems with Gerrymandering. However, the other part of this is that the average Red State voter is just fine with the NSA program. They voted for George Bush, and they think that all these supposed civil liberties issues about the NSA program are just getting in the way of keeping this country safe. They are likely to be a lot more energized about this subject that those who see the infinitisimally small chance that they themselves be tapped as a danger.

If this turns into an election issue, expect that any Democrat running against a Republican on the grounds that he is soft of civil liberties will counter that by claiming that the Democrat is weak on national security and wants to endanger the American people by limiting or abolishing this program. The Democrat is going to have to answer the question that if the purpose of the NSA program is to know when al Qaeda calls here to determine whom they are they calling, then why shouldn't we know, and are the people going to take the chance that the call is about another 9/11? I am sure that the Republican strategists can rework my convoluted sentence into a nice sound bite. But what are the Democratic challengers going to say to respond? That is as snappy as the Republican sound bite? That this right is so important that missing one or two terrorist calls is worth the cost of liberty?
2.9.2006 1:19am
Medis:
JaO,

Incidentally, now that we know the FISC has the power to make evidentiary rules (which makes sense--it is a standard component of judicial power), I think that is one way the Administration could voluntarily go along with FISC review of the program's legality. It seems to me that they could politely break this deal by submitting an application based on information gained from this program, and then get a ruling from the FISC on the legality of the program. If the FISC refused the application, it could be appealed to the FISCR, and if they refused to overturn the FISC, it would go to the Supreme Court.
2.9.2006 1:21am
Medis:
Bruce,

I'm not convinced that you are speaking accurately on behalf of "Red State voters". I know a lot of "Red State voters", and they aren't quite the knee-jerk rubes you are portraying. Heck, some of them have even gone to see Brokeback Mountain.

Anyway, I imagine the contrary theme would be something like "Nobody is above the law." And believe it or not, there was once a time when people thought obeying the law was important.

Of course, you are right that first the case would have to be made that President was violating the law. But again, I don't think that all the "Red State voters" have closed their mind to that possibility.
2.9.2006 1:28am
Bruce Hayden (mail) (www):
Medis,

Maybe, and maybe not. I disagree that the President is all that weak. Indeed, despite approval ratings, I suspect that he is quite a bit stronger than Clinton was in his second term. Indeed, how do you determine whether a president is weak or strong? Bush has gotten a lot more of his agenda passed than Clinton ever did, and is going to get more passed. Indeed, he has probably been more successful at that than any president since LBJ (ok, having both houses of Congress helps some - but Clinton did his first two years and accomplished almost nothing with it).

But a couple of things to take into account. First, the Republican base is not energized yet, because the President isn't in danger, yet. So, arguably, Congress is listening right now more to the MSM than they are their constituants. Secondly, the problem with approval ratings is that they sample the entire country, whereas what is important to President Bush here are the districts of the currently sitting Republican Congressmen. You may be right that this might endanger some swing districts for the Republicans. But you still face the problem that his side is easier to sell than yours is to the American public, and, in particular, to all those voters worried about National Security.
2.9.2006 1:33am
Kovarsky (mail):
Bruce,

Your post seems to suggest that if there's a conflict between the president and the judiciary on the legality of the program the president will win. I'm not really going to address how terrifying it is that you seem to think that is acceptable.

I'm going to pose a different question. Let's say judiciary says the president violated FISA and that his inherent authority argument doesn't apply. Is there a real possibility the administration just ignores the court on the grounds that their authority derives from the constitution and trumps the court's interpretation of it. I mean would they go so far as to contest the thrust of Marbury?

Would people go along with that? I would have to imagine there would be near-unanimity among lawyers at that point, but given the increasing hostility to the "funny-soundin' constitutional lawyers," would that be enough to hold back the dam?
2.9.2006 1:33am
Bruce Hayden (mail) (www):
One answer to the argument that no one is above the law is the question of who determines what the law is? You? Teddy Kennedy? John Kerry? Or the President? He at least has a legitimate claim to determining that. No one whom I have heard opine that he is above the law does.
2.9.2006 1:36am
Medis:
Bruce,

As an aside, but I'm not sure you can make the case for the President's ability to push his agenda since Social Security reform died.

But anyway, as far as I can tell you are just consulting your intuition and guessing at what arguments the proverbial "Red State voter" would be more willing to accept. My guess is a little different. As I have mentioned before, I think this is a framing issue. Sure, if you ask, "Which do you care about more, national security or the civil liberties of Al Qaeda agents?", people will go with national security. But if you ask, "Do you think the President is above the law?", people will say he isn't--even in the "Red States".

And I don't think we know yet which frame the people will end up using. You are basically pushing the Administration's preferred framing of the issue, and maybe that is indeed how people will end up seeing it, in which case he is probably going to be fine. But as the Social Security debate in fact showed, the Administration does not always get the framing it wants, and then it can lose.

So, I'm making no predictions, because I don't think we know yet how the people will see this issue. But I think the same logic applies to you: you seem to be assuming the people will buy into the Administration's framing, but I don't think you can possibly know that yet.
2.9.2006 1:43am
A Blogger:
Bruce Hayden,

Most people think the Supreme Court does. Ergo, the Supreme Court does. You can raise all sorts of high-fallutin' academic theories as to why that shouldn't be true, but those theories don't amount amount to anything if most people still believe the Supreme Court's job is to say what the law is.

Let's put it this away: After Chief Justice Roberts writes the unanimous opinion of the Court saying that the NSA program is illegal, I don't think even Bush is going to try to say that the Supreme Court can be ignored on that. The Supreme Court has way more prestige than the President or Congress when it comes to saying what the law is: people are going to believe the Justice more than any other institution.
2.9.2006 1:43am
Medis:
Bruce,

I think there are two notable authorities that could trump the President's interpretation of the law. One would be the Article III courts. For all people like to bash the courts, they still seem to accept the principle that the courts get the final say on interpreting the law.

Alternatively, I think a bipartisan consensus in Congress would also work. In part that just makes sense--who would know better than the members of Congress what their statutes mean? Moreover, Congress HAS the ability to take a bipartisan stand on this issue, and the President can't make that claim.

So, I'd say on a question of legal interpretation, both the courts or a consensus in Congress would be enough to trump the President.
2.9.2006 1:48am
Noah Klein (mail):
A Blogger:

I believe you are right about the prestige that the SC has, I am not sure that Bush would follow a ruling of the SC which so limits his power. Remember Andrew Jackson. Having said that, I think if Bush would violate a ruling of the SC, he would be impeached and convicted.

Noah
2.9.2006 1:51am
Bruce Hayden (mail) (www):
First, as to the question of whether the Administration would ignore the courts if they determined that the NSA program was illegal. Maybe. I would give them better than a 50/50 chance. They appear to believe that this program is vital to the national defense, that shutting down the program would endanger the American people, leaving them more open to another 9/11 type terrorist attack, and that the most important duty of the President is to protect the American people.

But also remember that a lot of pundits have suggested that you don't want to play poker with this President. You don't know when he is bluffing and when he isn't.

So, let's work backwords. Is the Judicary going to call his bluff, with Marbury on the line? Can they take the chance that he is bluffing? And even if they do, what happens then? What if he is bluffing, and they call his bet? He then backs down and shuts down the NSA program. But what then happens if there is another 9/11 attack that would have been preventable if the NSA program were still running? Where is the Judiciary then? Can they take that chance? And obviously, if he doesn't back down, there is a possibility that Marbury is effectively neutered - seriously undermining the power of the Judiciary. Can they take that chance.

And what are his risks? As I keep saying, the only real check on the presidency is impeachment, as any 8th grade civics student will tell you. Medis seems to think that the President is so weak that this is a real threat. I don't, unless something else comes up. I have discussed the fact that the critical voters are voters in swing House districts currently held by Republicans, and the Republicans there are not energized yet because this is all seen as a beltway furor by many of them, and the President is not yet in danger.

But another thing to keep in mind is what happens to all those Representatives who vote to impeach, and all those Senators who convict, if he is thrown out of office, and then another 9/11 type attack occurs? My guess is that the Democratic party could kiss any hope of reclaiming Congress good-bye for at least the next generation.

Oh, and who replaces the President if he is impeached? Do you really want Dick Cheney running the country?
2.9.2006 1:59am
Kate1999 (mail):
Bruce,

If you think there are five votes on the current Supreme Court to uphold the NSA program, who are the five?
2.9.2006 2:04am
Bruce Hayden (mail) (www):
If I am not mistaken, the only reason that we accept the courts determining what the law is and what the Constitution means is Marbury v. Madison. Yes, we now pretty much accept that this is granted via Article III to the Judicary. But, it has never been fully accepted by the Executive branch.

I think it is foolish to predict a 9-0 decision by the Supreme Court here for any number of reasons. One big one is that a lot of facts are not in evidence about the program. Everyone is assuming a lot of things. Some may be accurate. Many are likely not. There is a lot of reading tea leaves going on, and much of that is inferring a lot of horrible things.

Another is the assumption of where the Supreme Court would eventually fall if they follow the concurrance in the steel case. Are they really going to treat tapping incoming calls from al Qaeda like seizing steel mills? Or might they say that this is more clearly an Article II power? And of course, are they going to take the chance that the President is wrong about this program being essential for National Security?

Look, this is being pushed into a Constitutional crisis, arguably primarily by the Democrats looking to weaken the President. The problem is that there is a distinct chance that he doesn't back down, believing that his primary duty is to protect the American people.

Someone is going to back down. My bet is on the Judicary. Others, I suspect are betting on the President. I also expect the Legislative branch to back down, and accept some sort of increased Congressional oversight as a face saving gesture.
2.9.2006 2:18am
Bruce Hayden (mail) (www):
Actually, my bet if it goes to the Supreme Court, is the seven votes Bush got in the 2000 election (with the obvious replacements). But I basing that on no more than anyone else is here.

What I keep repeating is that none of us has enough information yet to be making these concrete predictions. And, we all know the saying: bad facts make bad law. We don't know the facts, so it is silly to predict the result.

What this means I think is that if a small number of people in the U.S. are having their calls intercepted when an al Qaeda suspect from abroad calls them, and if the Administration is using FISA fairly heavily, then I don't see the Supreme Court putting a stop to the program. But if the evesdropping of American citizens and legal aliens in the U.S. is widespread, then I expect them to rule against the program.

But that is part of my point. If it is the former, then public opinion, or at least the Red State public opinion that counts, will be behind the President. But if it is the later, then it won't be.

Yes, the Judicary is supposed to, by design, be above politics. It is, 99% of the time. The problem is that this is the 1% of the time when I don't think it will be.
2.9.2006 2:29am
Medis:
Bruce,

As an aside, your credibility takes a serious blow when you fail to acknowledge that there are also Republicans who are expressing concerns. In other words, look up top.

Anyway, a lot of your argument depends on this notion that this program is crucial to stopping another 9/11, and therefore if this program is "stopped" and another 9/11 occurs, the people will riot and lynch the Supreme Court (or whatever it is you have in mind).

As another aside, you are again just assuming that everything the President is claiming is true, or at least that everyone will believe him without some evidence. Again, I don't think even "Red State voters" are so credulous.

But even if what the President is saying about this program is true, the problem with your reasoning is that declaring the program is illegal is not the same thing as stopping the program. Indeed, if the President is right about how crucial it is, then Congress will surely authorize the program by amending the law.

This is, of course, all just Administration spin. They want to make it sound like the only two options are letting them break the law or having another 9/11 because that lets them break the law. But there is a third option: changing the law if it needs to be changed.

And although you have apparently swallowed the Administration's spin on this issue hook, line, and sinker, I think the public at large might be a little more reluctant to take the bait.
2.9.2006 2:30am
Medis:
Bruce,

You might need a recount on Bush v. Gore.
2.9.2006 2:35am
Noah Klein (mail):
Bruce,

The administration is already backing down; they are going to brief the intelligence committees something that they would not agree to before. The legislative branch is not backing down. The House Judiciary Committee's letter, Heather Wilson's call for hearings and Specter's legislation all demonstrates this. Finally, the FISC's presiding judges have said that they think this program is unconstitutional.

I do not know where you get your ideas from, but it is not from reality.

Noah
2.9.2006 2:36am
Bruce Hayden (mail) (www):
Noah

I respectfully disagree. If there is a serious move to impeach, the President goes to the people and tells them that this program is essential to the safety of the American people, that it has thwarted X number of attacks, and that if discontinued, it is more likely that there will be another 9/11 type terrorist attack on us. That is a powerful argument, and all the RNC has to do is start running clips of people jumping from the upper floors of the World Trade Center, and a lot of Americans are going to buy in to the argument.

I do think that the percentage vote in the Senate would be higher than in the house, given that Senate terms are six years and Senators are more likely to come from swing states than Representatives from swing districts. But do you honestly think that over 20 Republican Senators could be peeled off to vote to convict?
2.9.2006 2:40am
ThirdCircuitLawyer (mail):
Bruce,

You can be absolutely sure that the Judiciary will not back down. Most Article III judges -- both GOP nominees and Dem nominees -- think Bush is a bumbling fool. They think that he and Cheney are making DOJ lawyers argue positions that the DOJ lawyers most clearly don't believe in, and that the whole legal ship is being piloted by a bunch of wackos. The judges are going to take any opportunity they can to smack Bush down.
2.9.2006 2:46am
Noah Klein (mail):
Bruce,

At the moment, I would say no. If the president would violate the ruling of the Supreme Court, I would most definately say yes. But the administration is most certainly backing down. If you don't agree, then why would they be briefing the Intelligence committee, when they said for over a month that doing so would endanger national security. Do you think they just changed their minds on that after four years or is it possible that they realize they are in a weaker position than they thought they would be?

Noah
2.9.2006 2:48am
Bruce Hayden (mail) (www):
Ok, I just reread Bush v. Gore, and it kinda was 5-4. I maybe should have said that my prediction was the seven Justices who agreed with the Equal Protection claim. I remembered that, and not how the decision was actually structured. My memory was that the swing two had agreed in part and dissented in part, instead of dissenting in the result, but agreeing in the Equal Protection claim. That comes from not having read the case for a couple of years.

Sorry.

And of the two who agreed with the Equal protection claim, but disagreed with the result, I would expect that the President would lose Justice Souter before Justice Breyer. But both are IMHO borderline.

But, as I keep saying, this is all an excercise in futility. We don't know what facts will be before them. With the best facts, I could even see picking up Justice Stevens, but with the worst, maybe keeping just Justice Thomas. So, maybe somewhere between 8-1 and 1-8.
2.9.2006 2:58am
Bruce Hayden (mail) (www):
Noah,

What is wrong with briefing the Intelligence Committees? I don't see anything wrong with that from the Administration's point of view. They keep on doing what they have been doing, and Congress is appeased. Nice compromise, if Congress will bite. Most everyone gets what they want.

What has to be remembered about the Intelligence Committees is that they are the people in the House and Senate who routinely see classified material. That is one of the big fears of the Administration, that divulging too much operational information will compromise their programs. But as long as the Intelligence Committees can do their oversight without violating their duties to protect the classified information, then I don't see why the Administration would mind in the least.

What is important to the Administration is keeping the programs going and not divulging operational information to the enemy. It never was in having a showdown with either Congress or the Judiciary.
2.9.2006 3:05am
Noah Klein (mail):
Bruce,

I don't understand why the administration in the past was opposed to briefing the full committees, but they were. They felt that these briefings would lead to the leaking of operational information. This is a strange thing, since these committees have been informed of the most sensitive operational details of various intelligence programs, but this was the opinion of the administration. That they would so strongly advocate against these briefings and now refuse course demonstrates that they see they are in a weaker position. Believe, if this comes down to a showdown, the administration will blink first as it has in the past.

Noah
2.9.2006 3:14am
Bruce Hayden (mail) (www):
ThirdCircuit

You are probably right that many of the judges think that the President is an idiot. Which means that they may misunderestimate him. But apparent stupidity can be a strength too. If everyone thinks that he is too stupid to do the "right thing", then maybe they won't.

On the other hand, their votes really don't count anyway. The only votes that really count are those of the 9 Justices on the Supreme Court. And, yes, they may question his intellect too. But are they going to call his bluff? Can they afford to?

One of the things that the Supreme Court has to worry about that the lower court judges don't is the power and respect of the Judicary. And back to my question, what happens if they call his bluff, and he isn't bluffing? Are they that sure that he will be impeached and convicted? And if he isn't, where are they sitting?
2.9.2006 3:16am
Bruce Hayden (mail) (www):
Noah (or someone else) suggested that the President is fairly weak here, and I disagreed. But something else came to mind here. Nixon was in a fairly weak position when he went up against the Judicary because the burglary of the DNC was venal paranoia. Clinton was in a fairly weak position when he did so because his lying to the Grand Jury and District Court was done to protect his venality.

But President Bush is not doing this for personal or venal reasons. He can honestly say that his Administration is running this program for the best of reasons - to protect the American People from terrorist attacks. Neither covering up the burglary of the DNC or lying before a Grand Jury about sex can be considered the best of reasons - rather they were done for the worst of reasons. And, thus, at least compared to those two presidents, President Bush is in a far stronger position to take on both the Judiciary and Congress.
2.9.2006 3:24am
Kovarsky (mail):
It would be nice if somebody would create a boilerplate list of senate republicans that are breaking ranks with the administration. Of the top of my head:

Specter
Dewine:
Graham:
Wilson

It's late, I know there are a number more.
2.9.2006 3:29am
Noah Klein (mail):
Bruce,

You seem to assume that 1) if this program ends the likelihood of another 9/11 attack is certain and and 2) the judiciary will be held responsible by the public for the attack. That is quite a leap.

1) The government prevented many attacks prior to 9/11 without this program. The program may be necessary, but it is hard to say that it is the be all and end all of the government's efforts to prevent another terrorist attack. Many news reports have said that the FBI and the FISC say that this program has yielded few results. So I don't think the public associates this program with the ultimate defense from terrorism.

2) Even if this program is instrumental to the defense of this country, I would doubt that the judiciary would lose all legitimacy if a terrorist attack came about due to the absence of this program. The Court has survived the Cherokee nation case, the Dred Scott decision, Plessy v. Ferguson, Brown v. Board of Education, Roe v. Wade, Texas v. Johnson and Bush v. Gore. These were all extremely controversial opinions both at the time and now, but the Court is still view as the branch to interpret the law and still viewed with great prestige.

Noah
2.9.2006 3:37am
Noah Klein (mail):
Bruce,

Nixon said the same thing. It was not until a few years into the investigation that the truth came out that his administration's activities were for political reasons. Bush is weak. Republicans know it. Democrats know it. I have not seen recently one commentator or political analyst say that the Republicans will win seats or keep the amount they have today. The fact of the matter is that if anyone blinks Bush will blink first.

Noah
2.9.2006 3:42am
KMAJ (mail):
Medis,

My claim of unconstitutional is because of the legislation incursion on executive branch authority during wartime based on intelligence being a fundamental incident of war and FISA is an incursion on the ability to do so effectively and efficiently when it wanders into the foreign affairs area where the courts have ruled steadfastly for executive authority. Let me make sure you understand I am not claiming FISA jurisdiction over purely domestic intelligence isn't legitimate and constitutional, but technology has blurred that line. I seriously doubt SCOTUS is ignorant enough to not realize the importance of intelligence in the war effort. Sealed Case raised the constitutional issue. I think it is a very dangerous idea that you defend that would endanger the citizens of this country and hamper the ability to prevent another attack. If we were talking about spying on anti-war protestors, I would agree with you, but that is not what the NSA program is about. Are you saying Congress can pass any law it wants to rein in the other branches, even if it violates the Constitution ? You have to remember the reason FISA was enacted, because of the domestic abuses of Kennedy, LBJ and Nixon. It should be worrisome to you that the legislative branch is seeking to expand its power to areas where it was not intended to go.
2.9.2006 4:07am
Noah Klein (mail):
KMAJ,

Is the UCMJ constitutional?

Noah
2.9.2006 4:12am
Just Wondering:
A constitutional scholar advances the theory about the savings clause of the AUMF discussed in earlier threads. From Chairman Sensenbrenner's letter to the AG:

11. The January 5, 2006 CRS Memorandumquotes a December 22, 2005 letter from the DOJ Office of Legislative Affairs that says, "But under established principles of statutory construction, the AUMF and FISA must be construed in harmony to avoid any potential conflict between FISA and the President's Article II authority as Commander in Chief." The memorandum, however, concludes, on this point, that "It is unclear how FISA and the AUMF are seen to collide. Principles of statutory construction generally provide guidance for interpreting Congress's intent with respect to a statute where the text is ambiguous or a plain reading leads to anomalous results; and where possible, a statute that might be read in such a way as to violate the Constitution is to be construed to avoid the violation. However, such principles are only to be applied where there is a genuine ambiguity or conflict between two statutes, and where there is some possible reading that might avoid a conflict. . . ."A contrary view has been presented by constitutional scholar Robert Alt, that "if for some reason a court finds that there is a conflict between the AUMF and FISA, then standard rules of statutory interpretation suggest that the AUMF must control. Specifically, the AUMF contains a savings clause, making clear that the statute does not intend to impair the operation of the War Powers Resolution. See AUMF, ยง 2(b)(2) (Nothing in this resolution supercedes any requirement of the War Powers Resolution.). The canon of expressio unius est exc/usio alterius requires that Congress, having created an express exception for a statute intended to limit Presidential power, must have excepted FISA if they intended to exempt it from any conflict with the AUMF. They did not, and so the AUMF must control if the statutes are seen as conflicting.
a. Which analysis is correct? Please explain why you agree or disagree with these analyses.
b. Do FISA, the AUMF, and the NSA program conflict?

(footnotes omitted)
2.9.2006 4:39am
Evelyn Blaine:
I have to admit that, try as I might to place the arguments for FISA's unconstitutionality in the most sympathetic light, I still can't get past the utter strangeness of the constitutional vision that follows directly from the claim that Congress is powerless to regulate the "fundamental incidents" of war.

If one accepts that, then one is essentially reduced to reading the government and regulation clause to mean "make all the rules you want, just as long as they're not about anything important--such as where, when, and under what circumstances and procdures this enormous military and intelligence apparatus you've paid for might actually be used". Is Congress free to write hundred-page-long sets of regulations about uniforms, but powerless to say "don't use the NSA to spy on Americans without a warrant"?

Moreover, on this theory, one is also forced to believe that Congress could -- by virtue of its explicit Constitutional powers -- choose whether or not to have an army, or navy, or intelligence services at all; could specify in minute detail the nature and performance of the arms that such forces are allowed to procure; could replace the national military budget with grants-in-aid to the state militias, repeal the Militia Act, and leave national defence in the hands of the states; could confirm only those military officers amenable to its views; could pass a declaration of war, or repeal one, over the president's veto; could, as Charles Black was fond of saying, "reduce the president's staff to one secretary for answering social correspondence and, ... by two-thirds majorities, ... put the White House up at auction"; could, in short, do any number of remarkable things by virtue of their raw legislative power, but couldn't make reasonable rules limiting where, when, and how military powers are used even when those powers come in conflict with the privacy and liberty interests of the country's citizens.

Can we seriously believe that the Framers intended a system as counterintuitive as that--a Congress given dozens of ways to exert immense power over the other two branches, but powerless to use its "government and regulation" authority to govern and regulate anything but trivialities?
2.9.2006 5:02am
Medis:
KMAJ,

Exactly. Your "consitutional" argument starts and ends with your belief that we need a Strong Man to lead us into battle. It is a policy argument. Noticeably absent as an element in your "constitutional" argument is the actual Constitution of the United States.

So I would turn your question around: if the Constitution says Congress can pass a certain kind of law, are you really saying that law is unconstitutional nonetheless because you and the President don't like it?

Bruce,

You continue to make the same logical mistake: the Court holding that the program is illegal under the US Code as it stands does not prevent Congress from changing the laws. I have no doubt the Court would be fine with writing an opinion that essentially says, "If Congress wants to make this program legal, they can do so, but they have to do so explicitly."

To put it in blunt terms, if a 9/11 traceable to the lack of this program actually then occurred (again, I guess we're just swallowing the Administration spin with no attempt at critical analysis here), the Court would point the finger at Congress. And the President as well, since he has the constitutional power to recommend such legislation. Of course, none of this would happen, because if the Administration did have evidence this program was crucial to preventing another 9/11, Congress would in fact authorize it.

But I think there is one limited sense in which you might have a point. I think the Court would be much more reluctant to declare such a program unconstitutional under the 4th Amendment. That would in fact mean that even Congress could not authorize the program, and I think the Court would have to be satisfied that the program really was completely unreasonable before they would do any such thing. Again, though, they could hold that the program was simply unlawful under the current statutes, perhaps not even reaching the 4th Amendment issue, which would leave it up to Congress and the President to change the law.
2.9.2006 8:51am
Apodaca:
Medis muses:
To put it in blunt terms, if a 9/11 traceable to the lack of this program actually then occurred...
It doesn't matter what happens, in other pertinent respects. If no attacks occur, then the Administration's worst excesses must have been an essential part of preventing them. (The AG made this silly post hoc ergo propter hoc argument in his testimony earlier this week.) But if attacks do occur -- or if suspicious persons are so much as alleged to be plotting same -- then the President will simply claim he's too confined by the laws he ostensibly obeyed.

"Off with their heads" I win, tails you lose, so to speak.
2.9.2006 9:29am
srg (mail):
Apodaca,

You are right, but this is a game both sides play. The other side (at its most extreme, anyway) says that if there are no more attacks, that proves that the threat wasn't all that great, and that if there is another attack, that proves that Bush is incompetent, or that his chosen methods were useless. The fall of the Soviet Union led to exactly the same type of arguments as to whether the threat was ever all that great, and since we can't go back and do it all over again, few people will ever change their minds.
2.9.2006 9:58am
Jeek:
The government prevented many attacks prior to 9/11 without this program.

It did? Like what, specifically? The only ones I can think of off the top of my head are ones that were prevented not so much by government cleverness but by terrorist incompetence (the LAX bombing plot, the 1993 landmark plot). I wouldn't want to hold either of those up as shining examples of how our counter-terror efforts "worked" before 9/11...
2.9.2006 10:07am
Jack John (mail):

Kovarksy: It would be nice if somebody would create a boilerplate list of senate republicans that are breaking ranks with the administration. Of the top of my head:

Specter
Dewine:
Graham:
Wilson



Heather Wilson is not in the Senate. Dewine is facing an uphill battle in 2006: he is "defecting" only as a show to stem off criticism in his re-election campaign. Specter, as we all know, barks big and bites little, and both Medis and I agree, remarkably, that his proposed legislation is questionable. Graham, while seeming to oppose the President, has severely curtailed the rights of detainees who genuinely oppose the President, and who in fact are litigating against his policies right now.

It is superficial to suggest that this is a mutiny or an uprising of some sort. You have a House Republican mouthing off (and Bush is nowhere near close to losing the support of the House), a Senator acting cautiously because he is up for re-election (surprise, surprise), Arlen Specter acting like Arlen Specter, and Lindsay Graham charming people into thinking he doesn't lick the President's boots, as he always does. This is politics as usual, nothing different, folks.
2.9.2006 11:16am
Jack John (mail):

if the Constitution says Congress can pass a certain kind of law, are you really saying that law is unconstitutional nonetheless because you and the President don't like it?


If the Constitution says that Congress can in general (as opposed to categorically) pass certain kinds of laws, and Congress passes a law of such kind, but the operation of such law in a particular factual context would cause devastating harm to the people and impede the President's ability to protect the people from harm, and the people and the nation's representative, the only elected official chosen collectively by the nation, agree that steps must be taken in the interest of public safety, then, yes, that Congressional law can be set aside for emergency purposes only.
2.9.2006 11:23am
Anderson (mail) (www):
I think it is foolish to predict a 9-0 decision by the Supreme Court here for any number of reasons.

I couldn't agree more. 6-3 against the administration, with the lead by Kennedy or Scalia. Roberts joins Alito's dissent; neither joins Thomas's weird little dissent.

Anyone want to start a pool?
2.9.2006 11:32am
Jack John (mail):
5-3-1 in favor of the administration. The case is brought after Stevens and Ginsburg die while eating dinner together at Clarence Thomas's house. Thomas, Roberts, and Alito join with their two new cohorts. Kennedy, Scalia, and Souter concur in part and dissent in part, with Kennedy writing. Breyer writes a scathing dissent, in which he discloses the deleterious ingredients of Thomas' pecan pie recipe. Thomas writes a book afterward for $3 million, entitled, "How Trans-Fats Saved The Union".
2.9.2006 11:42am
Jack John (mail):
Oh, rendering it an 8-1 on some very narrow portions.
2.9.2006 11:44am
Medis:
Kovarsky,

Your list should include Brownback, Hagel, and Snowe.
2.9.2006 12:28pm
Jack John (mail):
Hagel is running for President in 2008, aiming to be a "maverick" candidate in the event that McCain does not run. He positions himself against the President constantly.

Brownback is running for President in 2008 as an evangelical vote-sponge. Opposing the President on matters that concern evangelicals is to his advantage -- and abuse of power is something that troubles evangelicals.

Snowe is like Chafee. You can call them Republicans if you like, but they are Republicans In Name Only.
2.9.2006 1:07pm
Medis:
Le GOP c'est moi.
2.9.2006 1:38pm
Kovarsky (mail):
Excuse me

i had said:

It would be nice if somebody would create a boilerplate list of senate republicans that are breaking ranks with the administration. Of the top of my head:

i meant to say congressmen. i'm also interested who in the house is breaking ranks.
2.9.2006 2:21pm
Jack John (mail):
There is no rank-breaking. Someone running for President, a RINO, or someone racing a tough re-election is not rank-and-file.
2.9.2006 3:03pm
Jack John (mail):
There is no rank-breaking. Someone running for President, a RINO, or someone facing a tough re-election is not rank-and-file.
2.9.2006 3:03pm
Jack John (mail):
There is no rank-breaking. Someone running for President, a RINO, or someone facing a tough re-election is not rank-and-file.
2.9.2006 3:04pm
Jack John (mail):
Whoops! Malfunction.
2.9.2006 3:05pm
Kovarsky (mail):
Would someone care to tell me who the Republican members of Congress that have taken a position other than unconditional support of the adminsitration are, irrespective of their motives?
2.9.2006 4:40pm
Jack John (mail):
Would someone care to point out one Republican congressperson other than Heather Wilson who is not up for re-election in 2006, who is not running for President in 2008, who is not a RINO, and who has "broken ranks" against the President?
2.9.2006 5:27pm
Medis:
Kovarsky,

Well, you can scratch the entire House off your list I guess.
2.9.2006 5:38pm
minnie:
Heather Wilson apparently expressed horror when the first allegations of torture came out, then voted against investigating the matter.

She's not anyone to look to if what one is concerned with is liberty and decency. Just another red herring.
2.9.2006 8:15pm
Noah Klein (mail):
Jeek:

I would point out that prior to the millenium the Jordanians broke a terrorist cell in early December, which alerted the U.S. to possible attacks against U.S. targets, including LAX. If you would like to learn more about this I would suggest you read Richard Clarke's book Against All Enemies.

Noah
2.10.2006 3:27am