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Will White House Pressure Block Congressional NSA Hearings?:
The Washington Post has the latest.
JunkYardLawDog (mail):
Its not just whitehouse pressure Orin, its the strong public support for this program that is applying the pressure. The only people not in support of the program are hard core lefties and some lawyers and academicians. The congress would do well not to provoke a constitutional crisis over this because voters would make them pay at the polls, and as I said long ago here (even the Supreme Court) pays attention to public sentiment on some issues. This could be one of those issues where they wouldn't want to risk the public demanding changes to the Judiciary's power should the judiciary try to interfere with the protection of our country and citizens.

Says the "Dog"
2.15.2006 12:50am
Tom Holsinger (mail):
Think the polls might have something to do with this?
2.15.2006 12:59am
Fishbane (mail):
The only people not in support of the program are hard core lefties and some lawyers and academicians.

I think The Dog should read the polls. Unless there are either a lot more "hard core lefties" or a lot more lawyers and acedemics than I think there are, this statement is not supported by fact.
2.15.2006 1:00am
minnie:
Well, we know your post isn't entirely accurate because I am not a lawyer, academician or hard core, or even soft core, lefty and I couldn't be more strongly against this illegal program.

If White House pressure blocks further NSA hearings, I find that shocking, inexplicable, and ominous.

How would you go through life, Junkyard, if the word "lefty" didn't exist?
2.15.2006 1:07am
RJT:
If there are other similar programs that haven't been disclosed(listening to US-US calls?), as Gonzalez hinted at in his testimony, is there any chance that these programs would be covered by any of the new legislation that is being proposed? Wouldn't the administration prefer to just make sure that these programs are covered now instead of having to go through this mess all over again the next time there is a leak?
2.15.2006 1:11am
Justice Fuller:
Remember, Minnie: Anyone who disagrees without the White House is a leftist liberal by definition. If the White House takes positions anathema to traditional conservatives, anyone who sticks with the traditional conservative view is now a liberal. Ergo, anyone who objects to the NSA program is a lefty.
2.15.2006 1:13am
Kovarsky (mail):
Gabriel Schoenfeld has an article in the March 2006 Commentary arguing that the NYT should be sued for violation of the espionage act.

I have to admit, I was prepared to dismiss his arguments out of hand, but the the legal argument he makes is stronger than you might think.
2.15.2006 1:25am
anon) (mail):
Kovarsky, I wonder why the NYT was not "sued for violation of the espionage act." Perhaps it was because it was a typical right-wing frivolous lawsuit? The courts are clogged with them. (I don't have any data to back this up, but you didn't provide specifics nor did that guy that calls himself the "dog", so I will make stuff up, too.)

What I find funny is that people love to condemn "Special Interests." Some condemn lobbying. But when the executive does it, it seems okay.
2.15.2006 3:58am
Bruce Hayden (mail) (www):
The absurdity is that the Senator who is cited as pushing for this investigation is Rockefeller, and he is one of the eight who have apparently been briefed all along. He is either grandstanding, or hasn't been fully briefed. I think that it is up to him to make his case that he was left in the dark - because I suspect he wasn't.

As the vice-chair / ranking member of the Senate Intelligence Committee, I think that he should personally have full knowledge of the program, to the extent he doesn't already. But a full investigation by the entire Senate, or maybe even the whole Intelligence Committee, would likely compromise the program.

The Republican Senators are doing as I suggested they would, starting to propose legislation that would make it clear that the NSA program is legal under FISA, while making sure that there was sufficient Congressional oversight.
2.15.2006 4:19am
anon) (mail):
Why would a full investigation compromise the program? I realize that the Senate, where people can be elected to it, by the commoners is not really the correct body to govern the executive, but I can't think of a way that potential candidates could be screened for whether they are true Americans or not.
2.15.2006 5:31am
KMAJ (mail):
Citing polls are misleading, the wording of the question can skew the results. If they use wiretap, that will get you more negative answers, if they use an inaccurate description of what is occurring, the answer is skewed. If you use Bush's name instead of president, you get a different result. So if you are looking for the real public assessment of the program, you have to eliminate all skewing factors to make it as neutral as possible.

Based on what little we know of the NSA program, the most accurate question I have seen in a poll is this one:

"In an effort to identify terrorist activity, do you think the president should or should not have the power to authorize the National Security Agency to do computer searches of large numbers of international phone calls coming in and out of the United States without getting warrants?"

The response to this question was: Should - 60% / Should Not - 34%

Why was the above question the best ? There were no negative or positive skewing factors, it is pretty neutral, and its description of the NSA program is as accurate about what we really know about the program.

Other wordings get different responses, the lowest yes or should was 46% for this wording:

"Do you think the Bush Administration was right or wrong in wiretapping these conversations without obtaining a court order?"

This question has three flaws in it, it uses Bush's name, which will draw negatives from those who dislike him, and makes the question more about Bush and not the NSA program. It uses wiretapping, which is inaccurate and has a negative connotation, and when you ask people if something is right or wrong, their natural reaction is to look for wrongdoing. This question is so flawed it is useless.

This question also got 46%:

"After 9/11, George W. Bush authorized government wiretaps on some phone calls in the U.S. without getting court warrants. Do you approve or disapprove of George W. Bush doing this?"

Another totally worthless result, the made the question all about Bush and not the program, no mention of terrorism.

The same poll asked the question this way also:

"After 9/11, President Bush authorized government wiretaps on some phone calls in the U.S. without getting court warrants, saying this was necessary in order to reduce the threat of terrorism. Do you approve or disapprove of the President doing this?"

And got 53% yes, it did add terrorism, but it also used Bush's name and wiretap.

But another interesting question I can across while searching:

"Would you be willing to give up some of your personal freedom in order to reduce the threat of terrorism?"
Yes - 61% / No - 27%

Polling Report.com

I think it is safe to say, a majority of people support this program. And you can bet politicians are aware of which questions are giving the most accurate results. That does not mean they won't cite the other statistics if they want to sway people and it is advantageous to them to do so. That freedom question is a very big one, that such a large majority said yes tells politicians security will be big with voters. For that reason alone, while they may posture and bluster, they will do nothing, and they are hoping to reach a compromise with Bush so they can be on record casting a vote for protecting the country. They cannot afford to leave this issue hanging until the election, for the democrats, the NSA issue is a lose/lose proposition, because it plays to republican strength in public perception.
2.15.2006 6:01am
anon) (mail):
Personally, if I was in Congress (and a Democrat), I would leave the issue hanging, because it is likely to be revealed that the NSA wasn't as "careful" as they claim to have been. (This is just the nature of any organization.) Likewise, if I was a Republican I would also leave it hanging, because the status quo is pretty good. The lay people don't really understand the legal (let alone factual) issues, so just about any survey will be fatally flawed.
2.15.2006 7:12am
boonelsj (mail):
Hearings have the potential to raise uncomfortable facts that Congress might be compelled to respond to. Better to stop asking questions now and wait for everyone to forget that the administration might be spying on them.
2.15.2006 8:11am
Bart (mail):
Congress has already caved on this issue.

It appears that the NSA program monitors telephone numbers which are captured from al Qaeda with little or no other information concerning the people who actually use those numbers. Therefore, the government cannot develop probable cause to get a FISA warrant until they start the monitoring itself. The classic horse and cart problem.

The FISA provision for 72 hour retroactive warrants is also ineffective because very few of these intercepts produce enough evidence to merit further investigation and take months of monitoring to turn up something.

Realizing this difficulty, Specter is drafting legislation to have the FISA court "review" the NSA program once every 45 days, according to the US News &WR I read at breakfast this morning. Looks like Congress is removing the warrant requirement altogether.

Since Congress itself already has oversight power, I doubt the White House will sqwawk if Congress unconstitutionally delegates its responsibility to the head of the FISA court.
2.15.2006 8:40am
Bob Bobstein (mail):
Bruce Hayden: Rockefeller "is either grandstanding, or hasn't been fully briefed."

First off, "being briefed" is not the same thing as oversight. Also, Rockefeller expressed his concerns at the time he was briefed. Because he was told by the administration that any disclosure of the program, including to his own staff, was an unauthorized disclosure of protected information, he relayed his concerns in a handwritten letter.

I agree with KMAJ that "I think it is safe to say, a majority of people support this program." But I disagree about what this means to Congressmen's calculations. I don't think that the wiretapping program has support that's deep enough and prominent enough in the public's mind to push votes one way or another. Also, the first commenter suggested that only lefties and pinkos and lame-ohs and Orin Kerr oppose the program; does that amount to 34%?

Also, even if 98% support the program, we should still try to determine if it is legal and constitutional-- but I don't see anything in your post that would take issue with that idea.

Hearings would be kinda nice, from my perspective as a citizen, because this was done in violation of FISA with zero oversight for so long. But if the program is useful and Congress can fix it without hearings, that's nice too. The disclosure of this program performed a valuable service by leading the administration to justify its actions to Congress.

Says the "Bob"
2.15.2006 9:09am
Kovarsky (mail):
Anon),

I think most people that comment on that issue frequently here would find it very, very funny that you implied that I was a right winger.

And, as a political matter, if the administration sues the New York Times under the espionage act, it would have shed the Plame affair first.

I don't know what to say to your point about frivolous right wing lawsuits. I'm guessing there are frivolous left wing ones ones too, although I'd probably sympathize with impulses behind those more - but I don't see what that has to do with anything.

But what I find most truly bizarre about your post is that you chide me for a lack of sourcing, when the entire point of my post was precisely to highlight a Gabriel Schoenfeld article that I found to be surprisingly persuasive in light of the seemingly radical legal position it took.

I'm not clear what you attempted to take me to task over, or why.
2.15.2006 9:16am
Just an Observer:
KMAJ,

Nice spin job.

I agree that the way poll questions are phrased affects the results.

For example, the ABA commissioned a Harris poll, which showed large majorities unwilling to impinge on civil liberties for the sake of fighting terrorism. But that poll's questions asked the respondents to weigh the rights of "people like you." Unfortunately, many folks may think that description doesn't fit people named Mohammed who attend a mosque in Dearborn.

You, of course, favor polls that skew the results in Bush's favor. You don't even want to mention Bush, warrants or wiretapping!

Notably, none of these polls addresses what I consider the fundamental question -- the rule of law and executive power -- asking directly if respondents would favor the President's program if a court finds it illegal. If that question were asked, I am confident the President's numbers would be in the cellar.

Which, of course, is a big reason why neither Bush nor you is willing to submit the legal merits of the controvery to the courts for a decision. The president's lawyers expect they would lose there, and public support for the "Terrorist Surveillance Program" would evaporate.
2.15.2006 9:41am
colts41 (mail):
Polls . . . hah! The GOPers in Congress are looking at possibly losing their chairmanships and earmarks this November. Why on earth would they want to show any backbone now?

As for polls, JYLD, what do you think a statistically valid sample of Americans would say to these two questions:

1. "Do you favor the government searching the homes or apartments of terrorists and their supporters without a warrant?"

2. "Do you favor the government detaining terrorists and their supporters found in the United States for as long as the global war on terror takes so those people can't commit potential terrorist acts against America?"

I'd bet the response would be well over 60% in favor, maybe much higher. That hardly proves much.

Let's try this question:

"Should the president be free to order the killing of terrorists and their supporters in the United States without a court order if the president believes doing so could prevent a possible attack on the United States?"

Any thoughts on how many Americans would support this position?
2.15.2006 9:43am
Bruce Hayden (mail) (www):
Can everyone keep their eyes open for the US News and WR Bart mentioned, or something similar, or, indeed, opposite? It isn't on their web site yet, but fully expect it to pop up somewhere in the next day or two.

The article seems somewhat logical - I have been suggesting that numbers from cell phones seized along with terrorists are being fed to the NSA and that was the source of some of this for quite awhile now. And it makes sense that if A is seized and has B's number on his phone, and B calls C, and C calls D in the U.S., that the NSA would have an interest in hearing what C and D were saying, but that there wouldn't be enough there for a warrant.

On the other hand, given the furor of all this, it seems to me that there has to be more involved.
2.15.2006 9:44am
Just an Observer:
KMAJ,

Correction: I notice that you do concede it is okay to mention "warrants" in a poll question.

But none of the questions covers the issue of legality directly.
2.15.2006 9:53am
Bruce Hayden (mail) (www):
Let's see what everyone thinks here. Let's take my scenerio from Bart's post about the US News &WR article he read this morning, and assume that in a joint operation between the U.S. military and Iraqi security forces, suspected terrorists were seized in a raid this morning. They most likely had probable cause to make the raid, but maybe not, since their operations don't have to face that standard. In any case, let us assume that terrorist A had a cellphone, and his call history and phone book are immediately fed to the NSA, as has been repeatedly documented. And one of the numbers on the phone is that of B. Then, before B finds out about the raid, he calls C. C ultimately calls D, and D calls E. One of these people is in the U.S. Does that matter? The NSA wants to tap the first of these phones it can.

What if B were the first one in the U.S.?
What if C were the first one in the U.S.?
What if D were the first one in the U.S.?
What if E were the first one in the U.S.?
Does this change if the evidence seized this morning includes signed pictures of OBL (highly unlikely, given his Wahhabism)? But let us assume that the picture says, Keep up the Good Work, Your Virgins are Waiting for You. Osama Ben Laden.

I put so many links in the chain for a number of reasons. First, I suspect that the NSA is at least tracing down to D, and maybe to E, whenever it is given the chance, and, second, the 6 or 8 degrees of separation thing, which would indicate that E could be President Bush, or even some of us here. Where should the line be drawn?

Would it mat
2.15.2006 10:05am
Just an Observer:
"In an effort to identify terrorist activity, do you think the president should or should not have the power to authorize the National Security Agency to do computer searches of large numbers of international phone calls coming in and out of the United States without getting warrants?"

The response to this question was: Should - 60% / Should Not - 34%


This poll, posted by KMAJ above, really applies to the policy issue Congress would consider for future legisation, not to the questions we often consider here: Is is current program legal under existing law.

If anything, I was mildly surprised to find only 60 percent in favor.
2.15.2006 10:23am
Just an Observer:
Bruce Hayden,

I think your post above was truncated somehow. What is the question?
2.15.2006 10:25am
Medis:
As I think many are noting, it seems to me there are two tracks involved in this issue: (1) was the Administration acting legally/constitutionally when it bypassed FISA; and (2) what should the law on this subject matter actually look like.

I take it the "swing Republicans" on the Intelligence Committee are focusing on Track 2, which I think is fine. Indeed, insofar as they are preparing legislation on this subject, they are breaking with the position laid out by the Administration (that attempts to legislate in this area are unnecessary and unwise).

So, in that sense we are de facto moving along Track 1 as well, insofar as Congress is reasserting its power to pass such legislation. But I suspect the Judiciary Committee is not done yet with its own participation in Track 1--which, after all, is really more their area.
2.15.2006 10:43am
Bruce Hayden (mail) (www):
Actually, it wasn't truncated - that I think was garbage from editing, when I accidently deleted the whole thing and started over.

But my question is: where should the line be drawn? Should any of these require a warrant to listen to?

As for where we sit right now with FISA, whichever was the first call into the U.S. would ostensibly require a FISA warrant to listen to, assuming that it was tapped (as I keep pointing out, through necessity) in the U.S. But there is a big range in probable cause as the phone numbers get further and further from the known terrorist A (and, thus, in this scenerio, presumably from OBL). I suspect that if B were in the U.S., the FBI could get a warrant. But beyond that? If it is C, called by B in Iraq? I think that doubtful, without more.
2.15.2006 10:45am
Bruce Hayden (mail) (www):
Medis,

Well, what is wrong with Congress saying, that is a good program, that FISA, almost 30 years old, is obsolete, and needs to be updated to fight the War on Terror?

If indeed, the NSA (under Presidential authorization) technically violated FISA, this wouldn't be the first time that a War Time President pushed the envelope and had Congress effectively retroactively endorse what he did.

And I think that what you are left with, with most who would complain about the program, should it be ultimately Congressionally sanctioned, is a gotcha. His opponents playing this politically, when they for the most part believe that what he is doing here should be done - it is just that he (might have) done it without Congressional permission, and that is the gotcha.
2.15.2006 10:55am
Legat:
Bruce,

That makes sense, but the officials have consistently maintained that the program is very narrowly focused. Tracing down to D or E would involve millions of individuals. Either the officials are flat out lying or the program is of a different form than we believe. I suspect some sort of dissimulation on the administrations part to protect the nature of the operation, but not categorical falsehoods. I don't beleive they actually *intercept* D and E.

Perhaps they only trace the metadata out to D and E and intercept those calls that score high on previous terror connections. Such analysis would require a large database of historical metadata.

But if cell phones are involved, the metadata surrounding the calls could also be expanded to include the physical location of the cellphones -- even when terrorists are not making phone calls (so long as the phones are on standby). Is tracking the location of individual E as he goes shopping at the local mall the interception of a wire communication (50 USC 1801 f 2), a radio communication (f 3), or is it monitoring of a different type (f 4)? In the last case, if NSA can track the standby signal of a cell phone via satellite the collection of this metadata would not volate FISA.

If NSA did not know the identity of individuals it was tracking, but rather intercepted calls made by cell users near certain sensitive locations, would this qualify as "targeting" known US persons?
2.15.2006 11:06am
Just an Observer:
Bruce Hayden

The question of "where should the line be drawn" seems to pertain to the definition of some future program yet to be authorized. I am not sure that a legal definition would be based on such degree-of-separation analysis, although it is interesting to see how rapidly the net widens.

A collateral question is "where is the line actually drawn" in the current NSA program. I don't think the administration has drawn any such lines.

DOJ and NSA spokesmen do say the government has self-imposed limits -- in the program they have confirmed, which pointedly does not rule out the existence of other programs -- that one person on either end of an intercepted conversation is somehow associated with Al Qaeda. The definition of such association, and the relevant legal test for degree of confidence, remain murky. It is hard to see how any of these calls you describe, just because they were made, rise to the level of probable cause.

By the way, your hypothetical keeps mentioning Iraq, and possibly Bin Laden. Only when you throw him into the hypo does it become relevant to the current debate. Most of the Iraqi insurgency has nothing to do with Al Qaeda, and the 2001 AUMF resolution ostensibly authorizing this program refers to the groups responsible for the 9/11 attacks. The Iraq war was authorized by a different resolution later.
2.15.2006 11:16am
A.S.:
As I think many are noting, it seems to me there are two tracks involved in this issue: (1) was the Administration acting legally/constitutionally when it bypassed FISA; and (2) what should the law on this subject matter actually look like.

I think this is right, but don't you think that if track (2) succeeds, it will make track (1) basically unimportant. After all, if Congress authorizes the NSA program, it will be, in effect, ratifying what the President the decision to engage in the program (although it wouldn't be a ratification for the legal justification offered by the Administration). So there would likely never be an opportunity to clarify the gray area we are in right now.
2.15.2006 11:18am
Bruce Hayden (mail) (www):
One good question I think hasn't been addressed is whether the NSA, et al., is trying to use GPS tracking to track these cell phones, whose numbers they find on the phones of seized (sometimes alleged, sometimes obvious) terrorists.

Yes, only in the U.S (and maybe a couple of other Western countries) is the GPS feature required. But it would make economic sense for cell phone manufacturers to include it worldwide, at least as an option. And at least Motorola could be pushed to do so by our government. Maybe the South Korean and Japanese manufacturers could be talked into it too, but I would be surprised if the Scandavian manufacturers would fall in line.

Of course, every cell call does give away its gross location regardless of the GPS feature - it must connect to a cell site somewhere, and I have no doubt that the NSA could figure out where the cell sites were for any suspect calls. GPS though would nicely pin it down to at least the block in which the cell phone resided, and maybe even the house.

I would think though that this sort of information would be more akin to the pen register type of surveilance than the interception of voice or data that is at the heart of FISA.
2.15.2006 11:21am
Bruce Hayden (mail) (www):
Ok, I agree that I overly generalized with my scenerio. The terrorists being seized in Iraq are unlikely to have a signed picture of OBL for exactly that reason, that there is a disconnect between al Qaeda headquarters, and al Qaeda in Iraq, run by the notorious Abu Musab al-Zarqawi. So, maybe I should had the terrorist have a signed picture of him - besides, he's probably not Wahhabi, which somewhat increases the chance of a photo of him.
2.15.2006 11:26am
Dilan Esper (mail) (www):
I don't think you can appeal to strong public support of the program, when nobody-- including the strongest public supporters-- even knows what the "program" is.
2.15.2006 11:26am
volokh watcher (mail):
Kovarsky mentioned Gabe Schoenfeld's article supporting the criminal prosecution in the upcoming March 2006 edition of The Commentary.

Schoenfeld points to the administration's claim, communicated prepublication to the NYTimes, that a story about the NSA's wiretapping would compromise the program by tipping-off terrorists that their communications are being monitored.
The administration's argument is about 30 years too late.

In its September 8, 1975 edition, Newsweek all but scooped the NYTimes, running a lengthy story -- titled, "NO PLACE TO HIDE" -- on NSA eavesdropping capability. The Newsweek story discusses the NSA's eavesdropping on Soviet communications.

Here's the Newsweek story: www.bugsweeps.com/info/newswk9-8-75

And here's an excerpt from the article regarding the NSA's national-security role:
The prime targets of the monitoring are Soviet-bloc diplomats, military officers and espionage agents in the U.S. But almost any communication may be of value to Washington's intelligence analysts. The NSA apparently is interested in data transmitted by multinational corporations, especially oil companies and arms suppliers. Intelligence sources also assume that the NSA monitors news organizations overseas at least occasionally; one reason is that when covering sensitive stories or fast-breaking events, they may have more up-to-date information than government agencies. "Never send the name of a secret source over the air," cautions one official. "They'll get it."

Here's a more intriguing excerpt about the NSA's role in secretly monitor non-national security issues:
Often, intercepted messages deal only indirectly, if at all, with national security. It is clear from the Rockefeller commission report that for a time the NSA monitored all telephone calls between the U.S. and Latin America as part of President Nixon's war on narcotics smuggling. One of NEWSWEEK's intelligence sources believes that the NSA has monitored all communications traffic having to do with the sales of grain to the Soviet Union. The agency also played a role in Operation Chaos, the surveillance of antiwar activists between 1967 and 1974. Government officials have identified the NSA as the source of 1,100 pages of material given to the CIA on antiwar activities and foreign-travel plans by U.S. dissidents. Indeed, some defenders of the NSA complain that it is too often burdened with work that has nothing to do with catching Russian spies or cracking codes.


All in all, Newsweek's 1975 story answers questions many in the VC community have been asking since mid-December, when the NYTimes broke the story.

Also, Newsweek's 1975 story suggests the administration's claim that national security has been breached may be overblown insofar as criminalizing the NYTimes' December 2005 publication is concerned.
2.15.2006 11:35am
Just an Observer:
A.S.,

There is more than one issue at stake here, as you note.

The narrow question of authorizing the NSA surveillance might be resolved by new legislation. Notably, that also would require the administration's agreement, but the White House line remains that no such authorization is required.

A second issue, that of executive power, would not be resolved by such a compromise, since Bush continues to claim inherent constitutional authority.

A related question, which is more or less important to different players, is whether any criminal laws actually were violated, and whether civil remedies might be in order.

You particularly here have championed the arguments of the DOJ "white paper," which I gather you believe in. Can we assume that you favor an expeditious test case to vindicate that legal theory?
2.15.2006 11:49am
JunkYardLawDog (mail):
Colts41

"Should the president be free to order the killing of terrorists and their supporters in the United States without a court order if the president believes doing so could prevent a possible attack on the United States?"

I suspect a large percentage and possibly a majority would interpret that question to mean nothing more than should a cop be able to shoot a terrorist and the guy in the getaway car if necessary to stop them from attacking and killing innocent USA citizens, would answer in the affirmative on your question. Maybe even a majority.

Minnie:

How would you go through life, Junkyard, if the word "lefty" didn't exist?

I can think of a lot of alternative adjectives. Whom would you turn your hate towards if there was no Bush or Cheney?

KMAJ, good posts on the polls. I believe I saw one where the affirmative/in favor of the NSA program was in the 70% range.

Congress can see the strong public support for this, and democrats realize they have no program. Democrats don't really support protecting the country with this program, but they want to be able to pretend to the public that the believe something they really don't. The real democrat position is the celebration of Harry Reid and others bragging on how they killed the Patriot Act. They don't want the Patriot Act, despite their lies to the contrary, and they certainly don't want the NSA program that goes farther than what they are willing to pretend to support in the Patriot Act.

The public sees Bush saying:

Yes, I've protected you in the past, I'm protecting you now, and I will continue to protect you in the future. Those in opposition are forced to argue, NO DON'T PROTECT US ITS ILLEGAL; YOUR VIOLATING THE AL QAEDA'S CIVIL RIGHTS.

Not much support for a terrorists bill of rights except among the far left crowd and some academicians and lawyers counting angels on heads of pins while the pin factory is being wired with C4 by the enemy.

Says the "Dog"
2.15.2006 11:51am
JunkYardLawDog (mail):
Also, not much support for an investigation of the NSA thing when the national press corp is so professionally occupied with the Cheney hunting accident thing. Clearly there is nothing more important going on in the world and politics than getting the specifics on what the President knew and when did he know it about Cheney's weekend hunting accident.

Now the democrats with nothing and no policies of their own to talk about, are trying to pile on about how troubling this is that Cheney had an accident. Next week Cheney might fall down while snowboarding. That should be good for a few more David Gregory moments.

What the press and the democrats fail to realize is just how many more votes they are losing by behaving in this manner. Just how much more disdain they are accruing to themselves by the public. The people have begun to realize the NYT, WaPo, and whitehouse press corps are not much different from the National Enquirer stories of alien babies born to stars and celebrities.

Says the "Dog"
2.15.2006 12:10pm
Medis:
Bruce,

You ask: "Well, what is wrong with Congress saying, that is a good program, that FISA, almost 30 years old, is obsolete, and needs to be updated to fight the War on Terror?"

In my view, there is nothing wrong with that at all. Indeed, Congress did the same basic thing in the USA-PATRIOT Act, and I would like to see Congress continually revisit these issues over time. In fact, undoubtedly the "War on Terror" is going to continue for the indefinite future, and the underlying technology will continue to change, and our needs may evolve as well. Of course, the 4th Amendment may provide a side constraint on exactly what Congress can authorize, but generally I think these are policy issues that Congress should be dealing with on an ongoing basis, taking full account of changing needs and changing technology.

You also say: "And I think that what you are left with, with most who would complain about the program, should it be ultimately Congressionally sanctioned, is a gotcha."

I more or less agree with this too, provided this ends up being an isolated incident. In other words, if there is not a lot more to this incident than the Administration has confirmed, and if in the future the President continues to work with Congress on these issues, and he does not continue to bypass applicable laws when he sees fit, only seeking changes in the law if he gets caught doing so, then I think this particular issue will and should draw to a close. I very much hope that is what happens.

Conversely, if the President continues to bypass FISA or other laws without trying to work with Congress, and/or if there is a much broader pattern that we do not already know about, then we may have a serious and ongoing problem which may require a more global remedy. But I very much hope that is not what happens.

A.S.,

You ask: "but don't you think that if track (2) succeeds, it will make track (1) basically unimportant. After all, if Congress authorizes the NSA program, it will be, in effect, ratifying what the President the decision to engage in the program (although it wouldn't be a ratification for the legal justification offered by the Administration). So there would likely never be an opportunity to clarify the gray area we are in right now."

As my answer to Bruce implies, I think that all depends on what happens (and perhaps what is already happening) beyond the scope of this particular program. Again, if this is just an isolated incident, then in my view it could and should end along the lines that you suggest. In contrast, if this is just one incident within a much broader and ongoing pattern of similar incidents, then we will likely need a more conclusive resolution of the underlying legal questions.
2.15.2006 12:10pm
Just an Observer:
Medis,

The President's claims to authority deriving from both the open-ended 2001 AUMF and "inherent" powers in Article II are so broad that it would be folly to assume they are confined to the NSA program that has been confirmed. Such claims have been made in other contexts we already know about, including detention and torture issues.

It seems apparent that establishing de facto precedent for such authority is actually a higher priority for Bush and Cheney than fighting terrorism.

As Hugh Hewitt -- no enemy of the White House -- has pointed out, the investigation of Al Qaeda operatives here actually may be hampered by the fact that the DOJ has never pressed a test case to vindicate the claimed legality of the existing program.
2.15.2006 12:29pm
KMAJ (mail):
One more disclaimer on polls, they are only a one moment in time snapshot of opinion, opinions can and do change. The frequency of polls creates an avenue for lazy journalists to write stories without having to work too hard. Because they can cite percentages, it lends them an air of authority, but you will rarely see them question the validity or skewing of the poll they cite, nor do they usually give the demographic breakdown or their weighting system in the story, usually you have to locate the pdf file of the full poll to find the demographics, and even then, some polling firms do not provide that information.

An old Newsweek article was mentioned above, there is a vast difference between that article and what the NY Times did with the Risen article. The Risen article dealt with a specific ongoing program in a time of war, the Newsweek article was a general sweeping article and did not talk about a specific ongoing program, and it was not war time. Even the Pentagon Papers case specifically stated that while the media had the right, under freedom of the press, to print the Pentagon Papers, that freedom/right did not remove them from being subject to the law and criminal liability.
2.15.2006 1:05pm
Medis:
JaO,

Of course, hope and expectation are different things. I agree that Cheney and Addington in particular seem to want to establish a "de facto precedent", by which I take it you mean a case in which they violate a statute, they defy Congress to do anything about it, and Congress does nothing. And I also agree that it seems their political calculation is that they are much more likely to pull this off if they can avoid any sort of court weighing in on the issue.

I guess I have this residual hope that the President is willing to push back against Cheney and Co sometimes for the good of the nation, at least when an issue gets into the open and he starts getting feedback from outside the Administration. And I wonder if that helps explain why the Administration seems to have softened its stand on working with Congress--at least in this particular instance.

But the cynic in me suggests that the President is willing to push back only to the extent that political pressure forces him to do so. In that sense, he may be fully on board with Cheney and Co's goals, but more risk adverse when it comes to open confrontations.

Anyway, like I said, I have hopes and I have expectations, and the two do not always match.
2.15.2006 1:10pm
Just an Observer:
Medis,

By "de facto precedent," I mean whatever the administration can get away with. That concept is quite distinct from legal precedent, which would require the administration to stop hiding from the courts.

As for the relationship between Cheney and Bush, you perhaps know more than I do. I agree that Cheney seems to be the primary sponsor of the executive-power drive in the White House, but I have never seen a hint that Bush is not completely in the thrall of such a movement.

After reading today's Post story, it seems that the White House "softening" toward the end of last week has rehardened.
2.15.2006 1:49pm
A.S.:
You particularly here have championed the arguments of the DOJ "white paper," which I gather you believe in. Can we assume that you favor an expeditious test case to vindicate that legal theory?


No. While I, like anyone, would like to see my views vindicated, I wouldn't risk th existence of a potentially important program solely for that reason.

I don't think that my thinking on this question isn't any different than, say, the Clinton Administration's stance in Campbell v. Clinton.
2.15.2006 2:24pm
Medis:
JaO,

I might take your concept of a "precedent" a bit further then, because I suspect that Cheney and Co might not only want to get away with doing it, but also for it to be widely known that they did. But anyway, I understand you aren't talking about legal precedents.

Anyway, I have no particular insight into how the President thinks, so your guess is as good as mine.
2.15.2006 2:39pm
Bart (mail):
How could the WH lose this argument?

They have the law, common sense, popular support and party control of Congress on their side.
2.15.2006 2:42pm
Just an Observer:
Bart: How could the WH lose this argument?

They have the law, common sense, popular support and party control of Congress on their side.


They do have party control of Congress, and popular support in roughly the same proportion. If by "common sense" you mean a desire for intelligence about terrorists, I agree with you.

There is great disagreement over your assertion that they have "the law ... on their side."

The simple fact that adminstration lawyers will not submit their own legal arguments for judicial review in a test case is evidence that they have little confidence in those arguments.
2.15.2006 2:57pm
Bruce Hayden (mail) (www):
Ok, it is debatable whether or not the President has the law on his side or not (and we have done that ad nauseum). But the Administration probably has a strong enough legal argument that if they can get Congress to cover their legal weaknesses by amending FISA, then they should be able to survive this unscathed, if not strengthened.

Their argument could go something like this: they had what many think was a legal leg sto stand on, but just to be sure, they got Congress to amend FISA just to make sure that this very important program for protecting the American People from terrorists and another terrorist attack. And, the only people who don't agree are some Democrats out to score political points and a bunch of ACLU led anti-any-war zealots who have filed a frivilous suit against them.

The ominous intoning by a number of very serious people that there may be something wrong going on here is just going to start sounding like partisan sniping, if the Republicans manage to amend FISA to allow the program.
2.15.2006 3:08pm
Just an Observer:
Bruce Hayden: Ok, it is debatable whether or not the President has the law on his side or not (and we have done that ad nauseum). But the Administration probably has a strong enough legal argument that if they can get Congress to cover their legal weaknesses by amending FISA, then they should be able to survive this unscathed, if not strengthened.

As a political prediction, that may well turn out to come true. In fact, the core of the White House strategy is to blur the legal issues by turning them into political arguments.

Which does not make legal that which was not legal.

I am not among those who wants to pursue those legal issues for the sake of pursuing a goal such as impeachment. But the legal issues raised by the administration badly need resolution in court.

In the process of making his political case, Bush has advanced some rather sweeping and dangerous claims about separation-of-powers. Those claims should either be upheld or vindicated in the Supreme Court, lest they continute to fester.

It is possible -- albeit unlikely -- that the court might decide a test case without reaching Bush's constitutional claim of exclusive executive power. If that be so, that is the way the courts are supposed to work. But the courts should have the chance to decide the merits.
2.15.2006 3:27pm
Just an Observer:
Bruce Hayden,

I neglected to answer your point about "the only people who don't agree are some Democrats out to score political points and a bunch of ACLU led anti-any-war zealots who have filed a frivilous suit against them."

The most prominent figure seeking a test case to resolve the legal issues is the Republican chairman of the Senate Judicary Committee.
2.15.2006 3:36pm
Bruce Hayden (mail) (www):
Ah, yes, but will the Chair of the Senate Judiciary Committee be out there opposing the President if: 1) the law is amended, and 2) he will most likely have increased oversight as a result of that amendment?
2.15.2006 4:13pm
Just an Observer:
Bruce Hayden,

Specter may well be outmaneuvered politically. BTW, Judiciary does not have oversight over operation of surveillance programs; Intelligence does. But Judiciary, I believe, would have responsibility for the language of any amendments to FISA.

Again, that is all in the realm of political prediction. For now, the matter remains here in the Court of Public Opinion.

I note that even though you concede that "it is debatable whether or not the President has the law on his side or not," you do not yourself endorse judicial resolution of the merits. When one speaks of the appearance of partisanship, one need look no further than that.
2.15.2006 4:30pm
Tom Holsinger (mail):
Out-manuevering Senator Specter is not difficult. Just string a line of what seem to be main-stream news photographers between where he is and where you want him to go.

Bruce,

Consider that the anti-American left is trying very hard to equate pen registers with illegal electronic surveillance.
2.15.2006 4:58pm
JunkYardLawDog (mail):
Just An Observer:

The simple fact that adminstration lawyers will not submit their own legal arguments for judicial review in a test case is evidence that they have little confidence in those arguments.

Or it is a strong statement by the administration that they are a co-equal branch of government, and they don't need a judge's permission to execute their Article II powers. The mere asking for permission is an implication that the executive branch is subservient to the judicial branch with regard to the exercise of the executive's constitutional duty as C in C and oath to protect and defend the country/constitution.

Says the "Dog"
2.15.2006 4:58pm
Just an Observer:
JYLD: The mere asking for permission is an implication that the executive branch is subservient to the judicial branch ...

Actually, in the test-case scenario I'm talking about, the executive branch would just be applying for normal FISA warrants, in cases where the justification for such warrants happens to be based on information derived from prior unwarranted surveillance. Under the law, the government always applies to the FISC court for such warrants. You may call that "asking permisssion" if you wish.

The test case would arise if the FISC judge denied such
warrants on the grounds that the prior surveillance was unlawful. Per existing law, such denial would be reviewable by FISCR and ultimately by the Supreme Court.

That would not make the executive "subservient" to the judiciary, any more than any court cases to which the government is a party makes the executive "subservient." In all such cases, the government doesn't get to decide the outcome, but is obliged to argue its case on the merits. In our system it is the court, not the executive, that finally interprets and applies the law.
2.15.2006 5:25pm
Bruce Hayden (mail) (www):
I see Sen. Specter backing off for any number of reasons. He really likes the Judiciary Committee chair, and is loath to give it up. But a lot of the Republican Senators don't trust him, so, ultimately, if he pushes this too hard, esp. given that it is more an Intelligence than a Judiciary issue, he may lose his chairmanship.

Secondly, he is facing a hard reelection battle in a swing state that I think went for Kerry last time. That means a couple of things. One is that he has to run from the central, with people on both sides gunning for him. But also, he has to appear fairly moderate and not in the pocket of Bush - but he can't totally blow off the Republicans, since they have the money and there are parts of his state that would react well to the President showing up and speaking for him.

So, ultimately, I expect him to back off. He isn't making himself popular with what looks like a Judiciary Committee power grab. Maybe a private movie with the President might do the trick. He just needs to be greased the right way, and then given a face saving way to retreat.

This all, of course, presupposes that Congress manages to pass a bill essentially approving the NSA program.
2.15.2006 6:01pm
KMAJ (mail):
JaO,

Your argument fails because this is a dispute between co-equal branches of governemnt. Thus the permission argument is legitimate, and would be ceding their own authority. Only if someone with standing files a suit is the judicial branch involved or if one of the branches is unsure would a test case be appropriate. I have seen no statement of either branch citing any ambuguity in their beliefs. Hence, the legislative compromise is the only legitimate solution to the clash over branch authority. If someone with standing finds the legislative compromise damaging, they can then file a suit which would bring the issue to the judicial arena.
2.15.2006 6:09pm
Just an Observer:
Bruce Hayden,

You describe political pressures that will be brought to bear on Specter, and predict that if he is "greased the right way" he will back off. BTW, he is not up for re-election until 2010, but I don't doubt that the pressures are great.

Yet you continue to confuse the is with the ought, ignoring the question I put to you about your own apparent preference for partisanship over principle. Your implication is that if partisanship wins in the end, that makes it okay, so you duck the question:

Since you concede that "it is debatable whether or not the President has the law on his side or not," how you justify avoiding judicial resolution of the merits?

It's not just about politics, it's about the rule of law.
2.15.2006 6:22pm
Just an Observer:
KMAJ: Your argument fails because this is a dispute between co-equal branches of governemnt. Thus the permission argument is legitimate, and would be ceding their own authority.

The Supreme Court can resolve separation-of-powers cases. That, for example, was what the Youngstown case was. Similarly, there was a related separation-of-powers issue raised in Hamdi, which Bush lost 8-1. (That, of course, is part of the real reason for avoiding review of the NSA matter.)

KMAJ; Only if someone with standing files a suit is the judicial branch involved or if one of the branches is unsure would a test case be appropriate.

The first part of that sentence is false, and you know it. (The second part simply makes no sense to me.)

The test case does not necessarily involve such a suit. That is not the form of a test case Specter suggested, which would arise in the FISA courts, which Professors Kerr and Hewitt have described, and which I have explained to you many times. You never even responded after I answered your several questions the last time we discussed this.

The President and his lawyers -- and you, his loyal apologist in this forum -- spin what purport to be "legal arguments," which you purport to believe. Yet you oppose letting the courts rule up-or-down on those arguments expeditiously. So again I must conclude that neither you nor Bush nor his lawyers really think the arguments are valid.
2.15.2006 6:46pm
KMAJ (mail):
JaO,

The Constitution does not REQUIRE that any branch submit to a test case. The point was that the judicial branch cannot invite itself in to rule on a separation of powers issue. Youngstown had an entity with standing file a suit. I oppose altering the Constitution to require something that is not in it. Should the branches choose to use that avenue, than it is available. But opinion does not require nor have force of law to demand it. Because one uses the fifth amendment does not make one guilty, because one chooses not to use an option has no bearing other than fueling speculation and assumption.

Would I go the test case route ? Only if a legislative compromise could not be reached, because, constitutionally, that is the preferred method of resolution.
2.15.2006 7:10pm
JunkYardLawDog (mail):
JaO,

I don't think your test case would be appropriate because it involves seeking a prosecutorial type warrant under FISA, which are used principally for bringing criminal charges against someone. Therefore a ruling on the underlying evidence gathering would be subject to a different standard of statutory and constitutional application than is or should be applied to a pure case of presidential exercise of foreign enemy intelligence surveillance at a time of war, conducted for the purpose of protecting the country from further attack pursuant to the President's obligation to protect and defend the country.

Therefore, its quite possible that the President doesn't seek permission from a judge because he doesn't need a judge's permission to perform his constitutionally mandated functions, and the mere asking for permission would amount to an admission of the Executive branch that they can not act in furtherance of their constitutional mandate without the permission of another branch of government.

There is a common saying in business matters that goes "sometimes its better to ask for forgiveness, if necessary, after taking action than to first ask for permission before taking action". This calculus may well apply to the political/public support aspects of this dispute.

Says the "Dog"
2.15.2006 7:19pm
Bruce Hayden (mail) (www):
Yes, I have heard that a bunch of smart lawyers are convinced that if the Administration worked hard enough at it, they could get the dispute into court.

But why should they? They have their program. It is running reasonably well. It hasn't been declared illegal by a competent court of final juristiction. So, why should they risk it? Why should they risk looking like the lawless crooks that the left has them portrayed as, if they should lose the court case.

Right now they have an arguably legal program. If they did spend the time and money to litigate it, they would either end up with a program that judicially wasn't, in that situation, illegal, or with a judicially determined illegal program. The first is of negligible beneifit, and the second would be a significant detriment to them.

As I see it, the only reason for them to litigate the program, esp. with the possibility of a Congressional resolution in sight, would be to give critics of the Administration or of the program the chance for a gotcha with the Administration. It might make them feel a little better to be vindicated by a court. But making its opponents here feel good about themselves is not a high priority way for this Administration to spend its resources.
2.15.2006 7:25pm
Just an Observer:
KMAJ: The Constitution does not REQUIRE that any branch submit to a test case.

But here in the Court of Public Opinion, where the issue remains stalled, the President's credibility and your own are seriously impeached because you both decline voluntarily to seek judicial review that is readily available.

Since the President's lawyers are afraid to tell it to the judge, the 42 page "white paper" is shown up for what it is: a 42-page press release without legal merit.

Not only that, but as Prof. Hewitt points out, failing to resolve the legal issue in the FISA courts may very well preclude active investigation of some terrorists in this country today.
2.15.2006 7:32pm
Just an Observer:
Bruce Hayden: ... So, why should they risk it? Why should they risk looking like the lawless crooks that the left has them portrayed as, if they should lose the court case.

I think you put your finger on the matter rather precisely: The adminstration will not take the matter to court because they think they likely would lose. (Which is another way of saying that the arguments lack merit.)

Of course, it would not be "the left" making a political charge, but the United States Supreme Court making a ruling on the law.
2.15.2006 7:45pm
KMAJ (mail):
JaO,

Your opinion of whom or what is impeached is legally worth zilch. You are not representative of public opinion, as a whole. For anyone, not just you, to even assert such a premise is the height of arrogance. Your opinion of the DoJ white paper is just that, an opinion. Your attempt to deman it is because they won't do what you want, is akin to taking your bat and ball and going home because they don't want to play by your rules.

Six of one, half a dozen of another, not resolving the legal issue or resolving it, both could lead to the negation of an active investigation of some terrorists in this country today, one could pre-empt such an investigation, the other could occur after the terrorist was identified.

Bruce Hayden makes the most salient argument on why not, the negatives outweigh the positives. Analogously, it is like having a choice of jumping off a cliff with a target you have to hit below to live or not. Pretty easy choice, unless you are into the adrenalin rush.
2.15.2006 8:00pm
Just an Observer:
KMAJ: Your opinion of whom or what is impeached is legally worth zilch. You are not representative of public opinion, as a whole. For anyone, not just you, to even assert such a premise is the height of arrogance.

Here in the Court of Public Opinion, where Bush has chosen to argue his case, I have complete standing to argue against his credibility and yours. I will continue to do so, and to challenge disingenuous spin.

Mr. President, tell it to the judge.

KMAJ: Your opinion of the DoJ white paper is just that, an opinion.

Correct. But unlike you, the President and his lawyers, I am willing to have that opinion reviewed by the courts. If the Supreme Court tells me I am wrong, I will accept the judgment -- and the sooner the better.

KMAJ: Bruce Hayden makes the most salient argument on why not, the negatives outweigh the positives.

If your partisan objective is the same as Bruce's -- that the President "wins" no matter how -- that observation makes sense. But my objective is that the rule of law prevails according to the merits, one way or the other.

Keep digging that hole, KMAJ. You continue to impeach your own credibility further. So long as you and your fellow partisans continue to reject objective review by the courts, please spare us any further BS dressed up with the appearance of "legal" reasoning. You are using this blog to spin political propaganda, and obviously nothing more.
2.15.2006 9:36pm
KMAJ (mail):
JaO,

You need to be your more accurate in your descriptions, it is 'your' Court of Opinion. Your credibility with yourself would be expected. I do find it interesting when people like to appoint themselves disingenuity or hypocrisy police. It usually reveals much more about the person doing the self-appointing.

Because you are willing to do something doesn't make your position more legitimate, and, thus, is irrelevant as a point of argumentation, unless you are claiming some mind reading capabilities we are not aware of.

Nice way of twisting, any action to be taken or not taken is weighed on a positive to negative ratio. There is very little, if any, upside in taking the action you propose, but there is a significant downside. It doesn't matter if you think the odds are heavily in your favor, if you gain nothing and there is a 10 percent chance at the downside. That is known in betting parlance as a fools bet. What this really is about your position having a huge upside in this action with virtually no downside, not any real interest in seeing the rule of law prevail. It's the old let's keep throwing mud at the wall until we can get something to stick. Though you are very adept at using legalese at spinning your political position, your attempt at projection does not change the fact you do what you accuse of. I freely admit my biases, so whose credibility is really at stake here ?
2.16.2006 2:02am
KMAJ (mail):
Let's put the test case theory in an understandable formula. You walk in to a casino and someone walks up to you and says "I have a great bet for you, you put $10 on the table, I put nothing on the table, there is a 90% chance you can keep your $10 and a 10% chance I can take your $10." Anyone want to take that bet ? Can't beat the odds, 9 to 1 in your favor of winning the bet. That is the test case scenario in a nutshell. And if there is anyone who wants to take that bet, I would be happy to take the 10% chance.
2.16.2006 2:32am
Bruce Hayden (mail) (www):
I may not have been making myself clear here. But let's go back to something I pushed on here a couple of weeks ago. The Administration is run by MBAs and the like, not JDs. They look at situations like this differently.

So, let us assume for a minute that they think that the program has a 75% chance of being legal. That is enough legal coverage for them to run it happily, but if nothing is done, there is a chance that they could lose on that 25% if it went to court. And that would be a PR nightmare. Also, as importantly, there is a possibility that the program might get shut down. But, if they did nothing, then the furor continues to distract, so there might be a reson to play the odds and litigate it.

But now, it looks like Congress is somewhat likely to legalize the program. If they do, the Administration is going to just keep running it, and not litigate it as to legality - because it now would be obviously legal.

Why not litigate anyway? Because losing has a cost. Typically, what an MBA would do now would be to multiply the benefits of winning by the chances thereof, and the chances of losing times the costs of losing, and compare the two products (or subtract the one from the other). But now the calculation has changed - the benefit to them of winning in court are de minimis. They get to continue to run the program regardless. But one part of the cost of losing remains - the cost of the gotcha that they were running an illegal program.

That they most likely wouldn't voluntarily litigate the program if Congress acts then says little about the confidence they have in the legality of the program, and quite a bit about the relative potential benefits and costs. In that case, they would see little, if any, benefit from litigating a program that now had Congressional approval and winning, but a potential downside if the did indeed lose.

This is some of the calculation that businessmen use to determine whether to settle infringement suits. Let's assume $10 billion in potentially covered sales, with a 1% reasonable royalty, and a 10% chance of losing. That works out to $10 million (a year). So, if the plaintiff offers to settle for a one time payment of $5 million, the good businessman is likely to settle (of course - if he does this too often, then he has to factor in getting a reputation as an easy mark). Note the business settling, despite having a 90% certainty that they would prevail in court.

I only digress to make the point that whether or not the Bush Administration ever voluntarily litigates the appliability of FISA, as it reads right now, to the NSA project at issue, doesn't have a direct correlation as to their confidence that their actions are legal. Rather, they are also factoring in the costs and benefits, and in the case above, I think it likely that the cost of losing would swamp the potential benefits, multiplied by the expected likelyhood of each, many times over.

Think of it this way, if Congress acts to legalize the program, let's assume the costs of losing a lawsuit to be $1,000 and the benefits of winning such to be $10. $1,000 X 25% equals $250, whereas $10 X 75% equals %7.50. So, the expected cost to them of litigating then are $250-$7.50 = $242.50. I should note that changing the odds of winning from 3:1 to 9:1 (i.e. 90%) doesn't change the decision here, still resulting in a negative expected payoff of $100-$9 = $91.

Of course, all figures are totally fictious here, and I will admit to biasing them to make a point - part of which is that a refusal to voluntarily litigate after Congressional action to clarify the legal status of the NSA program does not imply that the program was illegal before, or that the Administration believed it to be such, but rather that the benefit of litigating it would drop to near zero, resulting in the expected costs of losing swamping any benefit of winning.
2.16.2006 9:13am
Just an Observer:
On the matter of initiating a test case ...

KMAJ: There is very little, if any, upside in taking the action you propose, but there is a significant downside. It doesn't matter if you think the odds are heavily in your favor, if you gain nothing and there is a 10 percent chance at the downside.

There are two "upside" factors:

* The festering constitutional crisis would be resolved. A final ruling might even establish Bush's claim to exclusive executive authority as a binding precedent. (Of course, he would have to prove that claim first is court.)

* The possibility that persons in the executive branch have violated criminal law might be resolved without going to the brink in impeachment proceedings.

* The government's ability to combat terrorists in this country would actually be enhanced because DOJ could establish a more expeditious procedure for investigating or prosecuting them.

The only "downside" you have cited it that Bush might "lose" in court. That is a downside only if your objective is that he always "win," regardless of the legal merits.

Bruce Hayden: I may not have been making myself clear here. But let's go back to something I pushed on here a couple of weeks ago. The Administration is run by MBAs and the like, not JDs. They look at situations like this differently.

Actually, you have been making yourself very clear. I had read your prior comments.

You clearly describe how the administration's attitude on the rule of law -- and yours -- are quite different from mine. That is precisely my point.

I note that in the equations you present, you do not even consider what the law is! Rather, you are calculating what the President can get away with. In fact, in your own prior discourse on this matter to which you refer above, you clearly stated what you think the administration's attitude toward its own internal "legal" opinions: "I see the DoJ and AG doing just that for the President - giving him legal cover from a claim that he willfully broke the law."

The difference between your approach and mine is that because you are considering this matter from the viewpoint of an advocate for Bush, you think that is just fine. I don't, because I am defending only the rule of law. The law should be applied whether it favors the President or not.
2.16.2006 9:56am
Just an Observer:
Uh, make that read, "There are three 'upside' factors."

Apologies. Dang day job interfered with my blogging.
2.16.2006 12:20pm
Medis:
Just an aside, but Specter was not the only Republican Senator on the Judiciary Committee expressing concerns.

And I'm pretty sure Graham would still be genuinely concerned about the broader issues, precisely because he sees the Administration's arguments as a threat to the McCain Amendment in particular, and the UCMJ in general.

DeWine and Brownback, on the other hand, might be a little more focused on the issue at hand. Nonetheless, they undoubtedly still recognize that if legislative action to modify FISA is to mean anything, the Administration has to commit itself to actually using the modified law they are given.

So, I highly doubt Specter is feeling out on a limb by himself just yet.
2.16.2006 12:44pm
Just an Observer:
Medis,

Agreed. At some point the test-case track and the legislative-compromise track might diverge, but they have not yet.

BTW, today's George Will column provides another conservative's perspective.
2.16.2006 1:02pm
Medis:
Incidentally, as an aside, I think Bruce is likely wrong that this Administration is being run on an "MBA" model. Of course, they are not running it on a "JD" model either. Rather, they are running it on the "Politician" model.
2.16.2006 2:47pm
zak822 (mail):
Interesting how many people here don't seem interested in what the law and the Constitution say about this matter.
2.17.2006 8:59am