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Were Mass Resignations Planned at DOJ?:
We have known for a while that friction between DOJ and the White House over some kind of secret surveillance system led a number of top DOJ officials to come close to resigning back in 2004. Newsweek has a piece suggesting that the threatened resignations may have been broader than originally thought. Here is the picture Newsweek portrays, as told in a present-tense reconstruction:
Appalled by the White House's heavy-handed attempt to coerce the gravely ill attorney general, virtually the entire top leadership of the Justice Department is threatening to resign. The group includes the director of the FBI, Robert Mueller, Associate Attorney General Robert McCallum and the chief of the Criminal Division, Chris Wray. Some of them gather in the conference room of Deputy Attorney General James Comey, who describes Ashcroft's bravely turning away the president's men from his hospital bed. The mood that night in the conference room was tense—and sober. "This was a showdown," says a former senior Justice Department official who was there. "Everybody understood the choice they were making and the gravity of the situation. Everybody knew what the stakes were." A different source estimated that as many as 30 top DOJ officials would have resigned. . . . "This was not ideological," recalled a former Ashcroft aide. "This was about the difference between pushing the limits to the edge of the line and crossing the line."
Thanks to Josh Marshall for the link.
SpenceB:
["This was a showdown," says a former senior Justice Department official who was there. "Everybody understood the choice they were making and the gravity of the situation. Everybody knew what the stakes were... "This was about the difference between pushing the limits to the edge of the line and crossing the line."]


Why will they NOT identify the "line" or "stakes" that they were willing to resign over ?

Monica Goodling was required by Congress to identify the 'line' she had so coyly stated she 'crossed'.

Were these senior DOJ officials sworn to enforce the nation's laws and bring wrong-doers to justice ??

If serious law violations were prevented by declining to support the conspirators of those planned violations... is justice served by now keeping mum about specifics ?
5.27.2007 4:45pm
John (mail):
And this proves what?

That the Administration wanted to go as far as it could to protect the U.S.? That its initial--or even later--proposals went too far? That after those who believed the proposals went to far made their case, different proposals were adopted that were satisfactory?

Let me ask you this. Have you ever had a client who wanted to do something and asked your advice and it turned out he could not lawfully do it? It's rare, but by no means unheard of, for a lawyer to have to say that if the client wishes to go ahead the lawyer cannot help him and must withdraw.

This is life. The question is not so much how the argument went, amusing as that may be, but how it came out.
5.27.2007 4:46pm
Kovarsky (mail):
And this proves what?

It proves that 30 top administration officials believed "their client" was acting unlawfully. It proves that 30 top administration officials thought that the contemplated unlawful act would have been taken with sufficient intent and in spite of sufficient admonition that resignation was more appropriate than complicity.
5.27.2007 4:51pm
OrinKerr:
Why will they NOT identify the "line" or "stakes" that they were willing to resign over ?

Because the "line" and "stakes" apparently involve a highly classified program.
5.27.2007 5:12pm
Erasmus (mail):
John, then perhaps AG AG should not have lied to Congress and claimed that there were never any concerns raised about the program.
5.27.2007 5:16pm
OrinKerr:
John,

I'm not sure I understand your position. Is your view that it is unremarkable for the entire DOJ leadership to resign, or threaten to resign, over a government program? If so, can you point out the other times it has happened?
5.27.2007 5:16pm
scote (mail):

Because the "line" and "stakes" apparently involve a highly classified program.


The administration must not be allowed to hide illegal, unconstitutional behavior by declaring "classified." In the case of the illegal, FISA-bypassing wiretapping the claim of secrecy is specious. It is a known and admitted fact that US law enforcement can wiretap with a court order. Knowing that the US is bypassing the court does not tell suspects anything of value. The only reason to keep such a practice secret is to avoid legal and political scrutiny.

That being said, the program in question could have been yet another one, but I'd argue much the same, that knowing a spying program is in place doesn't tell the suspects operational specifics.

Now if you want to talk about things that shouldn't have been revealed you need go no further than the days right after 911 when a Republican US senator revealed the US had cell phone intercepts of "chatter" regarding 911. Now that was an operation detail that should have been secret at the time.
5.27.2007 5:40pm
Mark Field (mail):
Marty Lederman's comments on this article can be found here.
5.27.2007 5:48pm
OrinKerr:
Scote,

Some of the legal theories at work here are highly fact-specific -- the most obvious of them being the Fourth Amendment. It may be difficult or impossible to explain why the programs may or may not comply with the Fourth Amendment without explaining the fairly specific operational details of how the programs work. I'm curious why you aren't concerned about that; wouldn't that give the bad guys a roadmap to knowing how to escape detection?
5.27.2007 6:03pm
FC:
I hate election years.
5.27.2007 6:09pm
scote (mail):


Some of the legal theories at work here are highly fact-specific -- the most obvious of them being the Fourth Amendment. It may be difficult or impossible to explain why the programs may or may not comply with the Fourth Amendment without explaining the fairly specific operational details of how the programs work. I'm curious why you aren't concerned about that; wouldn't that give the bad guys a roadmap to knowing how to escape detection?



Why not just ask "Why do you hate America?"

[OK Comments: Because you love America, scote, as do I. Why would I question your commitment to our country and our values? Rather, I have thought a lot about this particular question, and I come to a different conclusion than you; this left me curious about what your reasoning was, so I was hoping you would enlighten us and teach us. Sorry if that was an offensive question.]

The idea that the US should have secret laws is ridiculous and one of the most harmful concepts to come out of the increasingly authoritarian reaction to 9/11. We must not let the terrorists destroy the very values that this country has stood for over the hears.

[OK Comments: Scote, I am puzzled by this. The United States government always has classified intelligence programs, and as far as I know the legal arguments for their legality are generally kept classified as well.]

To claim that even the legal theory behind a domestic surveillance program must be kept secret is anathema to democracy and the constitution. It is the "we must subvert the constitution in order to save it" theory law enforcement. One could apply the "exposing our legal theory would give the bad guys a roadmap" to any law enforcement program without limit, so it would seem that such a generic argument is insufficient.

[OK Comments: Scote, you misunderstand my position. My view is that some of the legal arguments are not fact-specific: for example, the Article II argument is not, as I have written about at length. However, some of the legal arguments very well could be, such as the reasonableness prong of the Fourth Amendment. I am sorry if this upsets you, but it's based on my best analysis of the governing law as I have blogged about over the last 16 months and my experience with Internet surveillance.]

You contend that the "legal theory" would be "fact specific," and yet that too is a generic and presumptive argument. There is a difference between the public disclosure of a legal and operational capability, say wiretapping email, and the operational specifics, say the FBI is wiretapping Orin Kerr and datamining for the phrase "Bill Clinton" and a specific list words and metrics.

The public disclosure of general information is much less adverse to operations than the specifics. In the case of discussing the legality of "classified programs" of domestic surveillance we are speaking of general information not operational specifics.

[OK Comments: This depends entirely on facts you don't know, though, doesn't it? Some legal arguments may not be fact-specific, but others would be. Here's an example. Let's imagine, hypothetically, that the NSA program is using a loophole in the FISA statute to conduct monitoring without triggering FISA; and let's imagine that the technical means of doing so relies on a particular surveillance method that could be circumvented if known (such as routing through a certain place). In such a case, disclosing why the program is legal would disclose the technical means of surveillance, letting the bad guys change their patterns and escape detection. Now, of course we don't know if this is the case: perhaps it is, perhaps it isn't. But the key is that we don't know. We are in a state of great uncertainty; pretending that we know more than we do creates a highly misleading impression, and may lead to very incorrect conclusions.

Although it might be expedient to keep even the general operational capability secret and hidden from court oversight that would be completely illegal and unconstitutional. We are a country of laws--open and public laws--not expediency. There are certain law enforcement expediencies that dictatorships have over polities but I do not think that we should aspire to such.

[OK Comments: Scote, as best we can tell the program is now subject to judicial oversight in the form of the FISA court. Do you you think the FISA court is illegal and unconstitutional? What cases or authority would you cite in favor of that view?]
5.27.2007 6:42pm
plunge (mail):
"Because the "line" and "stakes" apparently involve a highly classified program."

I'm not sure what that means anymore.

Remember the story of the Gitmo detainee who was given one of those show trials in which he was not allowed to bring his lawyer (just a "appointed representative who the military apparently instructed to just sit there and do nothing") or see any of the evidence against him because it was too highly classified? And then his "classified" file got accidentally released and it contained... well, nothing at all incriminating, and finding after finding saying, basically "geez, I think we may have the wrong guy, we can't find any evidence of anything on this guy."

Of course, the kicker is what the "habeas" presentation for his guy was. He was imprisoned in 2001 for, get this, knowing a guy who committed a suicide bombing in _2003_. And if that doesn't bust your plausibility unit (apparently, time travel is a sufficient basis for the judges they have overseeing these kangaroo proceedings), it turns out that the suicide bombing in question never happened and the supposed bomber has been living happily with his family in Germany for years.

In other words, "classified" generally means "embarrassing or grossly unethical stuff we want to keep covered up as long as possible so that it's old news by the time anyone finds out about it."
5.27.2007 6:43pm
Henri Le Compte (mail):
FC,
"I hate election years."

I'm with you, bud. If you thought the hyperventilated "24/7 news cycle" was bad, well... welcome to the "24/7 election cycle*." Every year is an election year. Oh joy.

(*or is it cyclone?)
5.27.2007 6:53pm
scote (mail):

"Because the "line" and "stakes" apparently involve a highly classified program."

I'm not sure what that means anymore.

Indeed. In a clear Catch-22, the Administration considers its "enhanced interrogation" techniques to be classified. Theoretically, this means that people who turn out to be innocent cannot be released because they now know "classified" military intelligence. Ironic that victims of military interrogation, both innocents and terrorist cell members, know more about the program than than the US public is allowed to know.
5.27.2007 6:58pm
John Herbison (mail):
The DeLay-led Rethuglicans of 1998 cheapened impeachment by using their House majority to vote Articles of Impeachment based on unsubstantial allegations, just because they could. The impeachment of President Clinton was rightly seen as an attempt by the party that had lost two elections to unseat a chief executive whom they could not defeat at the ballot box. That charade showed that a frivolous impeachment is harmful to the country and left a bad taste in the mouth. [Pun fully intended]

The unfortunate upshot of that blowjob brouhaha is that the public does not now regard impeachment as anything other than a partisan sideshow.

Article I, § 3 of the Constitution states that "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States[.]" Impeachment therefore does not become moot when the impeached official leaves office at the expiration of his term--he may still be disqualified from holding office in the future.

If the next Congress has the necessary testicular fortitude, it should consider whether Bush and/or Cheney should be impeached, and tried in 2009, under circumstances where a disgruntled party is not merely trying to circumvent the election results.
5.27.2007 7:13pm
Karl (mail):

Why will they NOT identify the "line" or "stakes" that they were willing to resign over ?


Is it that difficult?

They clearly were upset by the tactic on a sick man.

they may or may not have approved of the program itself on ideological grounds, but that wasn't the basis of their decision. How do I know that? ...


This was not ideological," recalled a former Ashcroft aide. "This was about the difference between pushing the limits to the edge of the line and crossing the line."


People weren't going to resign because of Bush's megalomania that hated the mere fact he had to otherwise go through the rubber stamp process of Spy Court. They would have resigned before.

It was about the tactic. There may be more going on, but it's about power, not simple ideology.
5.27.2007 8:35pm
Tollhouse:
Lovely little anonymous quotes, and of course, some other unidentified person (DOJ or some bum on the street or Kos) estimates 30 or so would have resigned.

Riveting reporting. Riveting.
5.27.2007 8:44pm
scote (mail):

Lovely little anonymous quotes, and of course, some other unidentified person (DOJ or some bum on the street or Kos) estimates 30 or so would have resigned.

Riveting reporting. Riveting.

Lovely sarcasm...and complete avoidance of addressing any of the actual issues of the post. Very O'Reilly. Very nice conflation of DOJ, Kos and "bum[s] on the street."
5.27.2007 8:52pm
scote (mail):

They clearly were upset by the tactic on a sick man.

No, not clearly. It is certainly possible but it is far from clear, or even more likely than not.

How do I know that? ...
"This was not ideological," recalled a former Ashcroft aide. "This was about the difference between pushing the limits to the edge of the line and crossing the line." "

That statement implies "legal" or "constitutional" line to me. While it could mean the ethical line of asking a sick man to sign off on a program, this doesn't seem to be the case based on the Comey's testimony. You don't "know," you only infer. These are two very different things.

People weren't going to resign because of Bush's megalomania that hated the mere fact he had to otherwise go through the rubber stamp process of Spy Court. They would have resigned before.

Once again, you are letting the story inside your head turn into "fact" when, in fact, you know no such thing. You are free to surmise or speculate, but you can't claim to "know."
5.27.2007 9:20pm
Daniel Chapman (mail):
Anyone else miss the days when there were no comments on this site? I know it's "possible" to avoid reading them, but something always pushes me to click that little button at the bottom of the post... I don't think the site has benefited at all from this thread.
5.27.2007 11:07pm
David Sucher (mail) (www):
I'm not sure what specifically prompts the comment from Mr. Chapman but coincidentally I had just been thinking about the utility of comments and that the comments on this post -- especially scote's -- were very informative and have helped my own understanding of the gravity of what has been going on at the DOJ.
5.27.2007 11:13pm
John (mail):
Responding to some of the comments to my "what does this prove":

I acknowledge that a threat of resignation is highly unusual--maybe unprecedented at DOJ. On the other hand, what the Administration thought it was faced with was also pretty unprecedented. The Administration clearly pushed the DOJ to the limit, and probably didn't pay attention, as it were, until the resignation threats were made. To me, this does not show bad faith--the principal actors here, Bush, Cheney, are not lawyers and probably don't like them much, which is pretty typical of business people--but frustration with what they felt was necessary on the one hand vs. those damned lawyers on the other.

The result was obviously something that did not result in mass resignations, and that says to me that the give and take--however heated--ultimately resulted in something that lawyers could live with. That's a good outcome.
5.27.2007 11:30pm
OrinKerr:
Scote,

I have replied above to your comment (just letting you know in case you didn't see it).
5.27.2007 11:51pm
MikeC&F (mail):
In other words, "classified" generally means "embarrassing or grossly unethical stuff we want to keep covered up as long as possible so that it's old news by the time anyone finds out about it."

It's a classic, "Who will watch the watchers?" problem. The people in the current Administration who are calling things classified and keep saying, "national security" over and over again, have proven themselves to be less than honorable men. Indeed, they were so dishonorable that they drove out several honorable men from the Administration.

If people like Orin Kerr were inside the administration, I would be willing to take the Administration's assertions that certain things must be kept confidential because of "national security." But, as Comey's testimony made abundantly clear, this ain't a DOJ of Orin Kerrs.

Of course, Comey testified that the reason he would not go into the factual details surrounding the dispute du jour was because of national-security concerns. To the extent the Administration is remaining silent on those issues, great: Comey's word is good enough.

But given that the Administration is comprised of "men" like Gonazlaes, I do view anything they say as having any gravitas. Indeed, I imagine Monica Gooding did not want to hire married men who lusted after other women because of "national security" concerns.
5.27.2007 11:53pm
badger (mail):
Henri:
I'm with you, bud. If you thought the hyperventilated "24/7 news cycle" was bad, well... welcome to the "24/7 election cycle*." Every year is an election year. Oh joy.
I'm sure you're happy that you've found a new excuse to simply ignore credible and unrefuted allegations of serious mismanagement and incompetence on the part of a Republican. Of course, if someone you disagreed with politically were on the receiving end of the accusations I'm sure your concerns about the now perpetual political season would vanish.
5.28.2007 12:08am
Dave Hardy (mail) (www):
Indeed. In a clear Catch-22, the Administration considers its "enhanced interrogation" techniques to be classified.

I wonder how "put him in the back room with Murphy here for half an hour and he'll be a lot more friendly" is classified material...
5.28.2007 12:33am
scote (mail):

[OK Comments: Because you love America, scote, as do I. Why would I question your commitment to our country and our values? Rather, I have thought a lot about this particular question, and I come to a different conclusion than you; this left me curious about what your reasoning was, so I was hoping you would enlighten us and teach us. Sorry if that was an offensive question.]

Thanks for the response. Well, I certainly admit to using a rhetorical device in this case, more on general principle and in response to implication than any express statement. In much of the news media and in the Administration itself, though perhaps not in these forums, there has been a presumption that anyone who is in favor of disclosure is aiding the enemy. Your carefully qualified query did not actually state this but any discussion of the secret surveillance programs carries with it the implicit, though unjustified, question of patriotism. It was not an offensive question.


[OK Comments: Scote, I am puzzled by this. The United States government always has classified intelligence programs, and as far as I know the legal arguments for their legality are generally kept classified as well.


Those classified intelligence programs have, I've been given to believe, always been operational outside the united states. From the presumed NSA spy satellites, microwave intercepts, undersea cable taps, human intel, etc., these were extraconstitutional activities done by agencies specifically dedicated to foreign intelligence and strictly prohibited from domestic spying. Domestically, any spying operations were to be under the rules of the US constitution, including the requirement for a court order. The secret FISA court was established by congress to allow a wide range of surveillance under looser and secret warrants in order to track people suspected to be involved in foreign intelligence while still nominally meeting 4 amendment requirements. However, while the warrants the FISA court issues are secret, the existence of FISA and the operational capability of FISA wiretaps is not, and can not be if FISA gathered intelligence is to be used in open court. In spite of this, the FISA court seems to be a success and I remain unconvinced that revealing that (if it is the case) the US can tap web traffic would necessarily "give a road map" to potential suspects any more than the knowledge phones can be tapped does.

Keeping legal arguments of the "legality" of domestic surveillance programs secret just smacks of the Soviet Union. I find the idea viscerally disconcerting as well as intellectually questionable.

[OK Comments: Scote, you misunderstand my position. My view is that some of the legal arguments are not fact-specific: for example, the Article II argument is not, as I have written about at length. However, some of the legal arguments very well could be, such as the reasonableness prong of the Fourth Amendment. I am sorry if this upsets you, but it's based on my best analysis of the governing law as I have blogged about over the last 16 months and my experience with Internet surveillance.]


I'm sorry if I have misunderstood your position. My infallibility is well below the Pope's. Even so, I disagree with your addendum as well, as might be expected. As for being upset by your position, hardly. Argumentative, yes. Upset, no.

In discussing the Reasonableness of a search, I have a hard time imagining that the government is doing more than has already been speculated on in the media and in lawsuits so I have an equally hard time imagining that making public generic aspects of a surveillance program would tell potential suspects anything they haven't already considered, namely that the US may or may not be engaging in wholesale, realtime data-mining of internet backbone traffic for keywords as well as connection metrics cross matched with complete phone call records for the entire US. Likewise the warrantless taps of calls with one foot outside the US. This is not giving anyone a road map, just repeating what has been reported in the NYT, Wired, etc. I've yet to see anyone explain how whether or not the Administration has to get a warrant has any effect on a potential suspects insight into whether or not they are being monitored.

I suppose it would be your contention that in arguing the reasonableness of this kind of possible warrantless wholesale data-mining or international call intercepts, which may or may not be the subject of the DOJ revolt, that the Administration would have to detail how and why such a novel and warrantless search would be legal and thus give away "operational details." Well, tough. It is a democratic republic with a guaranteed right against unreasonable search and seizure and the government needs to make a public case why it should be able to use such a capability domestically. Invoking the WOT bogieman does not exempt the government from this obligation no matter how clever a jigsaw of statutes and case law you can assemble. The Bill of Rights means nothing if the government can violate those rights in secret in perpetuity.

By the "we mustn't let suspects have a roadmap" standard, the existence of warrant-less pen registers and powerline monitors should have been kept secret. And the case about using infrared cameras should never have gone to court, the government should have kept their use secret, too. And all criminal court cases should be closed and sealed. I think the "roadmap" excuse is a non-specific, argument which can be applied equally to all law enforcement activity, which would be absurd as is the idea that the mere existence of a domestic surveillance program be kept secret and un appealable by citizens by the nature of its secret existence.

But the key is that we don't know. We are in a state of great uncertainty; pretending that we know more than we do creates a highly misleading impression, and may lead to very incorrect conclusions.

Indeed, I agree completely. Which is why I think the program should be disclosed so we don't come to "very incorrect conclusions."

There is no point in having a Bill of Rights if the government can secretly and unappealably violate those rights on a wholesale basis merely by invoking a states secrets privilege which exists nowhere in the constitution. Likewise, the magic phrase "Enemy Combatant" should not extend a "Get Out of the Bill of Rights" free card to the Administration. The Constitution was the product of men newly victorious from a perilous time of war and they made no such allowance for a unilateral suspension of Habeus Corpus for, I think, good reason. They were trying to move away from Star Chambers, not perfect them. The idea that the IP addresses involved in this post and the routing information may be tagged and sent to the NSA based on keywords or metrics is rather scary. The idea that the US might be doing that, and worse, to its own citizens without warrants and the fact that we even discussing the possibility that one could conceivably legally justify it is even more so.

I would suggest that the question is not whether you can come up with a legal justification for the administration's warrantless domestic surveillance program (as obviously John Yoo can), but should you. I contend the answer is, "no."
5.28.2007 1:42am
OrinKerr:
Thanks for the response, Scote. Am I right that your position has shifted rather dramatically? Your initial position was that the anti-disclosure argument was obviously bogus and essentially a ruse. Your position now seems to me that the anti-disclosure argument may very well be right -- it may indeed imperil our national security to disclose -- but that's it's just "tough" because, in your view, it's "the American way" to disclose.

I realize that you have very strong opinions about where the government should strike the balance between openness and national security. On the merits, however, I don't find your argument persuasive that disclosure is "the American way" or constitutionally required. As for it being "the American way," I don't think I know of any cases in which the government disclosed the legal arguments in favor of classified programs while the programs were still operating (with the exception of the NSA scandal and the OLC "white paper," that is). As for your constitutional arguments, what cases or authorities would you cite for the view that there is a constitutional requirement that government cannot keep classified the legal arguments in support of classified programs? You use a lot of very heavy rhetoric in your comments, but I would prefer to see the cases.
5.28.2007 2:13am
Kazinski:
As John Ashcroft said:

... to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our national unity and diminish our resolve,They give ammunition to America's enemies and pause to America's friends. They encourage people of good will to remain silent in the face of evil.

Our efforts have been crafted carefully to avoid infringing on constitutional rights, while saving American lives.
5.28.2007 2:16am
scote (mail):

As for your constitutional arguments, what cases or authorities would you cite for the view that there is a constitutional requirement that government cannot keep classified the legal arguments in support of classified programs? You use a lot of very heavy rhetoric in your comments, but I would prefer to see the cases.


Well, let me start with your last point first. It is true that my post is strong on principle and short on citations. However, I've been responding in kind to your Original Post and your comments which are equally lacking in citations--not that you couldn't but you didn't. Additionally, my closing point was that, citations aside, one should not justify a wholesale warrant-less domestic surveillance program even if one could.


Am I right that your position has shifted rather dramatically? Your initial position was that the anti-disclosure argument was a ruse, bogus, &utter baloney. Your position now seems to me that the anti-disclosure argument may very well be right -- it may indeed imperil our national security to disclose -- but that's it's just "tough" because, in your view, it's "the American way" to disclose.


Has my position changed, and changed "rather dramatically?" Let's see. In my first post I wrote, "The public disclosure of general information is much less adverse to operations than the specifics. In the case of discussing the legality of "classified programs" of domestic surveillance we are speaking of general information not operational specifics. " This does not claim in any way that disclosure would necessarily be free of any harm so I'm not sure where you have come up with the idea that my position has changed and changed "dramatically" but it is a dramatic accusation and one you seem to have made up from whole cloth.

Now as for my "Tough" argument which you seem to disdain, I might wish to point out that the Bill of Rights frequently puts the government in this position, though not necessarily in areas of information disclosure. Want to prosecute a suspect solely on the basis of an illegally coerced "confession?" Tough. Want to search random houses just to be sure there are no terrorists in them? Tough. Want to confiscate the legally owned firearms of all Muslim US citizens. Tough. Constitution (and rule of law) trumps expediency in these cases, so the idea that the government has to "surrender" some supposed security by dint of constitutional rights is an everyday occurrence which is part of the heart of the constitution.
5.28.2007 2:41am
OrinKerr:
Scote, I think I may be confused as to what your position is. Let's stick to the constitutional question, though: Again, what cases would you cite for your position?

You're right that I didn't cite any cases on my side, either, but there are lots to chose from. One place to start would be United States v. Marchetti, 466 F.2d 1309 (4 Cir. 1972), which held that there is no First Amendment right to disclose classified information obtained in the course of a government employee's job. And for the broader question of the American way with classified information, I think the states secrets cases, such as United States v. Reynolds, 345 U.S. 1 (1953), are instructive.
5.28.2007 2:58am
scote (mail):

gain, what cases would you cite for your position?

You're right that I didn't cite any cases on my side, either, but there are lots to chose from.


Actual facts and citations? Naturally, that will take longer as I have not the advantage of being and ex DOJ attorney and a law professor with a specific expertise in the Patriot Act and the 4th Amendment with those relevant citations at hand.

While I'm digging into case history (read: stalling :-) ), perhaps you can get back to me on the ethics and propriety of even attempting to justify a wholesale warrantless surveillance program? Given your many papers on the subject of search and seizures and your 2003 paper "Internet surveillance law after the USA Patriot Act: the Big Brother that isn't" I should think that you'd have an opinion on the matter, one independent of the legality of such a program.
5.28.2007 3:26am
OrinKerr:
Scote,

Thanks for taking the time to craft the argument so carefully. I look forward to your response.
5.28.2007 3:36am
scote (mail):
You're welcome. The response will take some time. Do do it right I'll have to apply to a graduate program. Earn a Masters, a JD, intern for a Supreme, work for the DOJ and earn an associate professorship. Then, after writing a dozen or so 4th Amendment related papers, I'll be just about ready to get back to you :-) So, give me about 12 years...I'll try to get back to you sooner if I can, though...

Still waiting on that opinion on the propriety of a wholesale warrantless domestic surveillance program :-{>
5.28.2007 3:46am
OrinKerr:
Twelve years is longer than I had anticipated, but on the other hand, sounds like it's going to be one heck of a memo. And who knows, maybe the Supreme Court will change the law by that time and give you better arguments than you have now.

P.S. Forget about the grad program; total waste. That should save you a year.
5.28.2007 3:58am
scote (mail):

P.S. Forget about the grad program; total waste. That should save you a year

Ok, 11 years.

I guess I'll have to take your actual lack of comment re: an opinion on the propriety of a wholesale warrantless domestic surveillance program as a "no comment."
5.28.2007 4:05am
Rattan (mail):
I hope I am not missing anything here. As far as I can tell, Scote is citing the US Constitution and OrinKerr is citing to exceptions to the general rule in the form of cases that can be interpreted to gut the rule.

For the average US citizen this is an intolerable level of complexity for a simple Constitutional guarantee. The interpretations leading to the all encompassing exceptions seem to be premised on the notion that actual security is being enhanced and innocents are not being tortured or harassed by the scheme put into action at present.

To me it is not clear if innocents are so protected. However, that said, it should be noted that the threat of Al Qaeda is not a routine terrorist threat. This hostile approach to reason and wanton killing prone interpretation of the Quran cost no less than the Prophet himself his close cousing Ali (assassinated in what is now Iraq), his son-in-law (assassinated in what is now Iraq), grandson Hussayn that he doted on (killed after being cornered in what is now Iraq) and of course his daughter, Fatima (wife of Ali and mother of Hussayn) crushed by a slammed door leading to her death. This blood thirsty approach to dispute resolution has not abated with the region usually being ungovernable except by even more extreme violence. Fast forward through centuries of treating others like targets for exploitation (the dhimmis) to these times and you see the Soviet Union humbled by zealots with guns. Now it is the turn of the US to deal with them. The admittedly far less harsh treatment by the US (than the Soviets of yore) is still attracting flak.

This is not to say that such violence by Islamic fringes should be accepted in this day and age. Instead, we need to see it for what it is from the perspective of a policy maker faced with bad choices and a need to keep oil flowing. The easy decision seems to be to gain as much information as possible to reduce the risk of future attacks. Much innocent information will be swept up as well by the required generous measures. And, the classified nature of such a program automatically provides a tool to hide mistakes such as incarceration of the innocent. But until we know more about the true nature of the threat, we cannot decide if the spying program related decisions are unreasonable enough to be outside of bounds that can be placed on such data gathering. It is reasonable, it seems to me to assume that more attacks would be mounted

In other words, the context is set not only by internal US politics, history and practices, but by an external foe that is little known and poorely understood by all. Most posts appear to ignore the outside factor altogether.

And, oil matters. Making foreign policy decisions based on safeguarding the oil market makes at least as much sense as investigating oil companies for price gouging.

In short, this is a developing story. There are unlikely to be any cases that can actually shed definitive light on the strategy adopted by the administration. It really comes down to gut feeling. OrinKerr may be comfortable with the risk of innocents being seized or warrantless searches being conducted while Scote is more comfortable with the risk posed by the enemy. As for me, I do not know where to draw the line. It seems to be an enemy specific task.
5.28.2007 5:47am
Henri Le Compte (mail):
badger:
I am interrupting the scote v. OK slapfight at my own peril, but since you asked, what exactly do you find so compelling about this... matter? (I say "matter" because I don't think it yet qualifies to be a "kerfluffle") I mean, talk about being long on supposition and short on facts! This particular, um, incident is a perfect meringue of speculation and projection whipped to a frothy wisp of translucent nothingness. In other words, just another political Rorschach in which people see whatever they are inclined to see. There have been so freakin' many of these frantically hyped, "bigger-than-Watergate!!" pseudo-scandals over the last few years that I've reached a state of complete Pavlovian resignation. The Scandal of the Month Club has lost this member.

Oh, and by the way, had the circumstances of this little current, um, thingie been only a wee bit different, many currently mortified folks would have been assuming that John Ashcroft was threatening to resign over what color bra to put on Lady Liberty. (Gosh... remember the good 'ol days? When Ashcroft was the worst AG ever? A Bible-beating prude who was heck-bent on enslaving us all in a 1950's style, white, Christian suburbia? Where did they go? Time moves so fast....)
5.28.2007 6:07am
davod (mail):
Wasn't Newsweek the publication which produced the Koran in the toilet propaganda piece. Should we not wait for the grownups to get involved before wasting any more time.
5.28.2007 7:07am
Edgardo (mail):
Orin, you still have a serious problem with your expectations.
5.28.2007 7:48am
M. Lederman (mail):
If I might modestly negotiate a possible compromise w/r/t the Orin/Scote debate:

The relevant legal documents at a minimum should all be provided to the Congress (the Judiciary and Intelligence Committees, in particular), and then folks in Congress should work with NSA officials to determine the bare minimum number of redactions necessary to preserve understandably secret information about NSA's technological capabilities. Once that's done, the documents should be made public.

With respect to the secret documents regarding interrogation and detention, a similar process should occur, but the redactions should be even less numerous -- probably limited only to information that reveals secret negotiations and agreements with foreugn entities.
5.28.2007 10:43am
badger (mail):
Henri:

This particular, um, incident is a perfect meringue of speculation and projection whipped to a frothy wisp of translucent nothingness. In other words, just another political Rorschach in which people see whatever they are inclined to see.
Oh yeah, this is all just political Rashomon. The Schrodinger's Cat of American government. We all have political opinions, so how can we truly know anything? All I see is you making more excuses not to engage in a "incident" that happents to implicate people who share your political objectives. You claim an absense of facts, when there are plenty availiable, both in the article linked to by OK, and in any number of posts here and at Balkinization which have been posted in the past month. You argue that what few facts do exist have a perfectly innocent explaination that we are all missing, yet you provide none. I see little motivation for myself, or any VC commenter to waste their time providing an explaination to someone with such fierce blinders on. Someone who has already announced their belief that no matter what arguments are put forward and no matter how compelling those arguments are, they are merely the fevered imaginings of the "political season" and are safe to ignore. I believe that you show the slightest inclination to look beyond your own political cocoon, you are the one who is safe to ignore.
5.28.2007 11:14am
Henri Le Compte (mail):
badger:
No, I don't insist anything about this matter. That is the difference between you and me. I'm quite open minded, agnostic. In fact, I fail to see how anyone can be certain of anything with regards to this stuff. I certainly don't see how anyone could be convinced that a major scandal lies here. Valerie Plame, anyone?

For instance, have we heard any kind of coherent allegations from any of the major players? Ashcroft? The umpteen DOJ people who allegedly threatened to resign? Over something dark and nameless? Particularly from this administration, that leaks like a sieve? They can't keep a secret-- particularly one that might be damaging to the President-- for five minutes!

It's ironic that everyone cites Bush's "obsession with secrecy" as one of his administrations major faults, when there have been more major breaches of security under his watch than at any other time that I can remember. (Just a stray thought. I offer it for my own amusement.)
5.28.2007 11:49am
OrinKerr:
Rattan writes:
I hope I am not missing anything here. As far as I can tell, Scote is citing the US Constitution and OrinKerr is citing to exceptions to the general rule in the form of cases that can be interpreted to gut the rule.
No, that's wrong. Scote is invoking the Constitution as an abstract symbol; I am relying on the Constitution as an actual governing document.

Scote, can you explain what you mean about the propriety of a wholesale program? I'm afraid I don't understand the question. Whose propriety? When? In what context?
5.28.2007 12:02pm
Mark Field (mail):
I think the debate between Prof. Kerr and scote involves some hidden premises on each side. I'm inclined to agree with scote; here's why.

If you take seriously the fundamental principle of republican government -- sovereignty of the people -- then you have to consider the extent to which governmental secrecy is consistent with that principle. At the limit, it's not. By that I mean that the only fully consistent theory of republican government would permit no secrecy whatsoever.

As Edmund Burke said, though, "It is, besides, a very great mistake to imagine that mankind follow up practically any speculative principle, either of government or of freedom, as far as it will go in argument and logical illation." We all accept some compromise with popular sovereignty because we recognize that national interests require that.

The real dispute is where we draw the line. Personally, I draw it in scote's direction -- less secrecy. I fail to see how disclosure of the general characteristics or capabilities of surveillance programs would harm their operational effectiveness. For example, we generally knew the delivery and explosive capabilities of our nuclear missiles during the Cold War. That didn't diminish their deterrent effect; it may very well have increased it. In the same way, I suspect that disclosure of surveillance capability (even, perhaps, a slight exaggeration of it) might have a positive effect: we might deter terrorists from using modern communications and thereby force them into much less efficient, older forms. That would actually hinder their own operations.

Prof. Lederman makes a good suggestion for compromise, but there are limits to it. The judiciary ordinarily functions in public. It's hard to keep secrets there and hard to judge the fairness of proceedings when we do. I'm not sure the long-term effect of that would be beneficial. Congress seems a better bet, but that works best when (a) the disclosure is full and (b) to the opposing party. And even then Congress needs the ability to debate the issues (perhaps in Executive session).
5.28.2007 12:13pm
Henri Le Compte (mail):
It took a while, but they finally snuck in a little balance-- in the second to last paragraph of a five page story:

Goodling's only crime was her lack of subtlety, said Mark Corallo, the Justice Department's chief of public affairs under Ashcroft, and Goodling's onetime boss. "She probably was a little too overt about it," Corallo told NEWSWEEK. "But let's face it—the Democrats do this, too, they all do it. The idea that career employees are above politics is total crap. The so-called career employees are mostly liberal Democrats." He noted that in the U.S. Attorney's Office in San Francisco, career employees refused for months to hang portraits of Bush, Cheney and Ashcroft.


The rest of it is primarily gossip, told by unnamed sources (and the big, fat axe they are grinding goes unmentioned.) None of the principals talked. You wanna build Watergate out of that, go right ahead. To me, it sounds like the way things usually work in a massive organization, like the US Government. Things get a bit out of balance; things right themselves. The ship moves on.
5.28.2007 12:15pm
M. Lederman (mail):
Mark: Thanks. My suggestion was for Congress, not necessarily the courts (but cf. the pending litigation), to be given the documents in the first instance, and for persons outside the executive branch (e.g., in Congress) to work with NSA to identify the minimum redactions necessary to preserve needed secrets about NSA capabilities.

You are correct that in many instances, revealing capabilities (e.g., of our nuclear arsenal) might be in our best interests. But in other cases, one might not want to make surveillance capabilities fully transparent, because the optimum state of affairs for intelligence purposes is one in which the enemy mistakenly thinks it's safe to speak freely across certain media -- in which case they will more frequently reveal information in a manner that we can detect. It's the basic reason that 99% of what goes on in NSA and predecessor agencies has never been made public. Think, for instance, of when the allies cracked the Enigma cipher in WWII -- they didn't announce that fact, because then the enemy would have quit using that cipher to encode its messages, thereby defeating the purpose of breaking the code.
5.28.2007 12:24pm
justanotherguy (mail):
The arguments back and forth about how bad was he in initial OLC opinio0n that was later reversed strike me as "how many angels fit on the head of a pin" type argument. We don't have enough facts to adequately evaluate the situation and it is really irrelevant anyway except for scoring political points.

The REAL QUESTION is whether or not the intelligence process including Congressional oversight was subverted. I can't get too excited over one legal opinion over another, as long as it is properly vetted. Please forgive my naive view that our oversight system works. If several administrative reviews in the executive decide it is legal and they brief the appropriate committees in Congress (or the right members) and Congress acquiesces to it...then the system will work.

Monday morning quarterbacking will always be shrill and ineffective, but evaluating where the process (YES the PROCESS, it works) is what will maintain the system.

So, I am far more interested if the administration delayed notification or pushed off Congress than with the details. One has to give the same Chevron like deference to the administration acting in good faith until the system overrules it.

Here it seems that the system worked. Congress was given oversight, and once they sensed weakness in the program, (from one of the 30 threatening to resign) they bothered to protest. Before the weakness in the administration, they seemed quite content to let the program go through.

The rest of this "breathless" citing of cleat marks with chalk marks seems just too much shrill political posturing. You can get honest disagreement about any line involving Executive power, and in the unprecedented time immediately after 9-11, it is to be expected. Didn't the Supreme court have to overrule Harry Truman over Steel Mills?
5.28.2007 12:46pm
plunge (mail):
"However, that said, it should be noted that the threat of Al Qaeda is not a routine terrorist threat."

This is what virtually EVERY argument in EVERY country that tries to overturn the due process of law claims. When the English suspended habeas and started persecuting the Puritans, it as because they, well, were supposedly capable of anything (and had proven it). And yet even those Englishmen of the past, people who had never even heard of most of the constitutional protections and justice we are familiar with today, would not tolerate such an obvious and ridiculous situation as having the authorities be able to disappear people without even having to give a reason for what offense they were suspected of.
5.28.2007 1:17pm
a bean:
I find it interesting that people discuss "the administration's" position as if there clearly was a unitary position in favor of pushing the limits of the law. It seems painfully obvious that the administration was divided .

And there isn't that much evidence that the President was actually allied with the pro-program faction at all. This really just sounds yet another incarnation of all those stories of Powell and Rumsfeld fighting for the President's ear. I recommend reading Woodward's "Bush at War" for a good showing of all of the triangulation and intrigue that went on within the administration.

Comey's story is of course at a level to itself, but it seems emblematic of how top officials competed among themselves to persuade the President.
5.28.2007 1:20pm
Kovarsky (mail):
justanotherguy,

Please forgive my naive view that our oversight system works.

no, because you're not really claiming naivite, you're deliberately ignoring the obvious point that the "system" of oversight did not run its course. instead, the president and some of his top apparatchiks tried to short-circuit the system itself, to PREVENT it from performing the sort of routine oversight tasks you talk about.

Comey's story is of course at a level to itself, but it seems emblematic of how top officials competed among themselves to persuade the President.

Really? It was my impression that the story was emblematic of how most of the top officials did whatever they thought the president wanted, with guns ablaze. How you could read it as a story of Card and AGAG fighting for their principled view on anything mystifies me.
5.28.2007 2:02pm
Mark Field (mail):

But in other cases, one might not want to make surveillance capabilities fully transparent, because the optimum state of affairs for intelligence purposes is one in which the enemy mistakenly thinks it's safe to speak freely across certain media -- in which case they will more frequently reveal information in a manner that we can detect. It's the basic reason that 99% of what goes on in NSA and predecessor agencies has never been made public. Think, for instance, of when the allies cracked the Enigma cipher in WWII -- they didn't announce that fact, because then the enemy would have quit using that cipher to encode its messages, thereby defeating the purpose of breaking the code.


This is a good point. I think there's a difference, though, between making public a capability in general terms -- in WWII, that we could intercept radio transmissions -- and the specific details of what we could do with those intercepts. The Japanese knew we could hear their broadcasts. They did not know we could understand them. There was no harm in publicizing the former, but the latter should remain secret. That's a distinction which I think can be made today as well.

To clarify my earlier point a bit, now that Prof. Lederman has made it obvious that I need to :) -- it might be beneficial to publicize our capability if there's no way around it (that was a key factor in MAD). For example, if the Japanese had believed that we were able to understand ANY radio transmission they made, no matter what, they would have been forced to cease radio transmissions altogether. That would have severely hampered their operations. We'd obviously have to be quite confident of our own ability before we advertised something like this.
5.28.2007 2:29pm
Anderson (mail) (www):
"However, that said, it should be noted that the threat of Al Qaeda is not a routine terrorist threat."

This is what virtually EVERY argument in EVERY country that tries to overturn the due process of law claims.


I myself do not remember the kinder, gentler terrorists of pre-Qaeda days.

In fact, al-Qaeda *is* a "routine terrorist threat"; our problem, on September 11, 2001, was that we did not have adequate "routine" countermeasures ... largely due to naive indifference ("it can't happen here") that left counterterror up to the whims of a dozen bureaucracies.

Regarding the classified nature of the surveillance programs, the abysmal lack of credibility of this White House is a huge problem (as noted above).

Secret briefings to the Senate intel committee, for ex, can't be relied upon -- how do we trust the briefers? The blogosphere, in 72 hours, would do a much better job of analyzing any such briefing than the Democratic senators would do.

This is just another example of the whole reason for open government in the first place.

Frankly, I can't really imagine that *any* terrorist thinks that we can't, in theory, eavesdrop on *any* conversation. If anything, they probably tend to exaggerate our magical-seeming capabilities.

The programs work, if they work, NOT by some unsuspected means of tapping, but rather because Joe Terrorist thinks that there's too much stuff out there, and the NSA won't be listening to *his* phone call.
5.28.2007 2:43pm
scote (mail):

Scote, can you explain what you mean about the propriety of a wholesale program? I'm afraid I don't understand the question. Whose propriety? When? In what context


Certainly. Asking about your opinion on the propriety of a secret wholesale warrantless domestic spying operation is my way of trying to short circuit the legal discussion, where I'm at a an admitted disadvantage, and reframe the debate to my favor by asking you if you have an opinion of weather you think such a program is a good idea and generally ethical. You can easily opt out of offering up such an opinion by noting that you couldn't make an informed opinion without knowing the details of such a program. That is really part of my point, if I have such a thing, which is that secret government alienates citizens from their rights. Without a reasonable basis to know what the government is doing we can't know if our rights are being violated and appeal such violations. Instead, we are left to trust an administration with unquestionable authoritarian leanings who has instituted secret laws, secret legal rationales, indefinite detentions without charges, secret interrogation methods, secret wholesale domestic surveillance, secret warrantless searches, secret tribunals with secret evidence and things so secret we don't have a clue about them. And to "protect" us from abuse we have to rely on the DOJ headed by a man whose deference to the president is near legendary and who was likely complicit in creating or approving those programs. Pardon me if I don't feel safer as I watch our government move towards authoritarian control.

Now, in the above context of claims of unilateral authority by the Administration, could one really and honestly claim that a secret and unsupervised wholesale warrantless domestic spying program is good for the US?


propriety |p(r)əˈprīətē| noun ( pl. -ties) the state or quality of conforming to conventionally accepted standards of behavior or morals :


I think you are right when you suggested that my point was more in the abstract. As a veteran lawyer you know that the apparent simplicity of the 4th amendment is warped by a tortuous maze of related statutes, interpretation and centuries of case law intertwined with common law. Any document with centuries of interdependent yet disparate interpretation can become nearly un-reconizable, as one exception becomes the foundation for more, piling on one after another. In religion the exhortation not to boil a kid in its mother's milk turns into a requirement for two separate sets of cutlery and two layers of separation of food from the dinning table. At least in the case of certain Kosher traditions, the separation of milk from meat is merely magnified, not turned on its head. Not so 4th Amendment law. There, it would seem, case law chisels away rather than builds up the strength of the 4th amendment, carving exemption after exemption in a downward spiral based, in part, what we may "reasonably" expect to be private, with each new erosion in our "reasonable" expectation forming the basis for increasing incursions. It is like washing the shoreline wash away, eroded by the sea never to return.
5.28.2007 3:47pm
scote (mail):
Edit: It is like watching the shoreline wash away, eroded by the sea never to return.
5.28.2007 3:51pm
justanotherguy (mail):
Of course the oversight system worked here. We had an interpretation of the law, that while perhaps was further than anyone went before, but 9-11 was further than anything else since 1941. Yes almost anything that goes through the DOJ system and passes the common sense smell test of the Congressional oversight is going to be okay and is per se legal (entitled to enough deference that it will pass muster until it gets to the USSC where who knows what goes.)

The Yoo interpretation existed for a period of time and then was overturned from within the administration. All the breathless hyperbole of how the administration overturned its own decisions is pointless...For the two years while the "Yoo interpretation" was in force, it went through oversight, Congress was informed to a certain extent (enough to know what was going on) and accepted the program and it was legal. Now we think differently and different oversight is aghast that a previous incarnation allowed the old interpretation. If the Yoo interpretation was so bad, why not go after the previous Congressional select intelligence committee chairman that knew of the program and let it go on?

Again this is really all about a perceived failure of the process... but as long as the process works...the process was followed in good faith, there are no failures....

This is really about politics, both internal republican politics and democrat vs republican politics.
5.28.2007 4:25pm
Mark Field (mail):

For the two years while the "Yoo interpretation" was in force, it went through oversight, Congress was informed to a certain extent (enough to know what was going on) and accepted the program and it was legal. Now we think differently and different oversight is aghast that a previous incarnation allowed the old interpretation. If the Yoo interpretation was so bad, why not go after the previous Congressional select intelligence committee chairman that knew of the program and let it go on?


Taking everything you say at face value, your position is that we should focus our anger on the policeman who failed to catch the criminal rather than on the criminal himself? That strikes me as a peculiar way to allocate blame.
5.28.2007 4:35pm
Anderson (mail) (www):
For the two years while the "Yoo interpretation" was in force, it went through oversight

Which is why all the memos of Yoo et al. were provided to the Congress, right? Oh, wait ...

If the Yoo interpretation was so bad, why not go after the previous Congressional select intelligence committee chairman that knew of the program and let it go on?

Because they were deliberately misinformed?
5.28.2007 4:41pm
Mary Katherine Day-Petrano (mail):
And isn't it very interesting this morning's Tampa Tribune is reporting that virtually NO ONE is wanting to apply for resigned Tampa US Atty Paul Perez's position!

Maybe because whoever takes over knows they will be saddled with a Gonzales-whit-esque can of worms?

The proof is in the pudding.
5.28.2007 5:06pm
Kazinski:
Anderson:
Because they were deliberately misinformed?

Do you have a source for that allegation? Or is it just baseless speculation?

The fact is other than some meaningless hearings, which are just a sop to the base, Congress is letting the Adminstration have its way with it's terrorist monitoring programs. That indicates two things to me: a) there is no unreasonable invasion of privacy happening that could provide any political capital, and b) the program is necessary and Congress does not want to take the risk of stopping it and thus being responsible for an Al Qaeda attack that could have been prevented.

I might also add that the Democrats know that making these programs an issue is a loser for them. All it does is point out to the public that the Bush admistration is serious about protecting America from any future attacks, and has been successful at it. Better to keep the focus on Iraq, where the adminstration has not been as successful.
5.28.2007 5:08pm
Mary Katherine Day-Petrano (mail):
See ... http://news.tbo.com/news/metro/MGB7JKV582F.html
5.28.2007 5:11pm
scote (mail):

Congressional select intelligence committee chairman that knew of the program and let it go on?

There is also very little the Congressional Intelligence committees can actually do. Their briefings are secret and they are not allowed to discuss them with fellow congressmen, even to try an inform their vote for restraining the Administration in future. If you remember, one congressmen even went to the trouble of writing a letter of objection which had to be written in a secure facility and shown to no one. These briefings to congress are a little like when Super Villains confess their evil secrets to the trussed up hero based on the idea that he'll never be able to tell anyone, except that congresspeople are legally prohibited from discussing the briefings even after they escape from the Villain's clutches.

Partially informing/misinforming a select group of gaged congress members does not qualify as oversight of any kind, let alone meaningful oversight. In addition we are talking about domestic surveillance, not CIA or NSA black ops that take place outside of the country.

How can citizens have a "reasonable" expectation of privacy if extent of the Stasi-eque surveillance techniques practiced domestically are kept secret? If such a policy is allowed to stand, then there will be no such thing as a reasonable expectation of privacy since Americans would have to "reasonably" assume that all communications and records are being monitored and that sneek and peek warrants are potentially common place, thus the 4th Amendment becomes moot. I hardly think that would be a desirable goal for the US.
5.28.2007 5:17pm
justanotherguy (mail):
Providing the memos that were used to decide upon a policy is not the same as informing Congress about the implementation of the policy or its implications. There are no assertions that Congress was misinformed about the salient features of the program, only that Congress was not given the exact specifics. In other words... while some politicians can play games with the program, those who were informed knew enough to know the bounds of the program did not object, therefore it was legal at that time.

Now that there is different interpretations and Congress is playing politics with national security, we can second guess the decisions made in 2002.

That there were big policy arguments and dissension within the DOJ is interesting, but really is irrelevant. To what extent the executive can be restricted in its powers to prosecute a war by Congress and what impact the 4th amendment has on the implementation of that prosecution are academic and open to reasonable different views.

One view thinks that if a suspected overseas terrorist is talking to someone within the US that conversation can be monitored without a warrant, the other view thinks that since there is one side of the conversation in the US, it is protected and needs a warrant. Since foreign conversations are available to be monitored without warrant under the Executive powers, this becomes an open question.

I know what the polls think the American public thinks about the Terrorist surveillance program versus the Domestic spying program, which is why this debate has retreated from public view and is now couched in terms designed to mislead the public. (DOJ fights and lawyers arguing with each other and such.) It might not b e the best legal answer to preserve individual rights, but Joe Public agrees with the Terrorist surveillance program and doesn't understand what anyone is complaining about.
5.28.2007 5:40pm
jukeboxgrad (mail):
henri: "this administration … leaks like a sieve … They can't keep a secret-- particularly one that might be damaging to the President-- for five minutes!"

At Bush's request, NYT sat on the NSA story for a year. This meant delaying it until after the election. That darn liberal media. So your claim about "five minutes" is off by a factor of roughly 100,000 (and that's without taking into account the fact that the program was secret for three years before the NYT heard about it).

You're essentially making this astonishing claim: various agencies (like NSA) have no secret programs.

"None of the principals talked"

Comey qualifies as a 'principal,' and sworn public testimony qualifies as "talked."

You've made a number of statements that are counterfactual, but these two are particularly striking.

just: "For the two years while the 'Yoo interpretation' was in force, it went through oversight, Congress was informed to a certain extent (enough to know what was going on)"

As Anderson suggested, you're using the word "oversight" loosely.

It would interest me to know your source for this, i.e., that Congress knew "what was going on." Who in Congress? Knew what? When? Because they were told by whom?

To borrow Kazinski's words, "Do you have a source for that allegation? Or is it just baseless speculation?"

And if Rockefeller (for example) knew "what was going on," I wonder what you're claiming his options were, as a minority chairman who could not publicly discuss classified information. As scote explained, his choices were extremely limited.
5.28.2007 5:41pm
justanotherguy (mail):
Scote,

It sounds like you are objecting to the process that was set up in the 1970's to provide congressional oversight. I think that you are mis-stating the effect of Congress' objection to any intelligence program. The "letter of objection" was seen for what it was, a CYA, not shown to anyone attempt to have it both ways. If the Congressional members of the committee object to what is going on, they have a variety of methods to stop what is going on. However none of them thought it objectionable enough until the DOJ fight gave them cover. After DOJ fought about it, they could fight about it.

If they were upset about it,I think the administration would have compromised with them, or faced riders and restrictions in the defense and intelligence funding bills (also all classified).

That the objections waited and now are concentrated on the process and any over-inflated breathless drama of sickbed visits... shows that there are not substantive issues because as posted above, the public strongly disagrees with the restricting the Terrorist surveillance program and does not support those who call it a domestic spying program.... Judges and lawyers arguments aside... Joe Public doesn't understand why the government can't listen when a terrorist is calling someone is the US, even it is only to the Washington Post to complain about not getting enough favorable front page coverage.
5.28.2007 5:48pm
scote (mail):

I might also add that the Democrats know that making these programs an issue is a loser for them. All it does is point out to the public that the Bush admistration is serious about protecting America from any future attacks, and has been successful at it. Better to keep the focus on Iraq, where the adminstration has not been as successful.

<can of worms>
Bush
1) has not captured Bin Laden
2) invaded a country that had nothing to do with 9/11
3) sacrificed over 3,000 of our finest resulting in the establishment a terrorist safe haven where previously there was none

--as you say, not very successful re: Iraq.
</can of worms>

However, your claimed dichotomy is also empty. Bush's encroachment on Constitutionally protected rights has not been established to be the reason there have not been major domestic attacks since 9/11. Post hoc ergo propter hoc , or, in this case, just because something happened before "no attacks" doesn't that it is the cause of "no attacks." On the other hand, it is the case that the Administration's cavalier attitude towards the bill of rights has directly resulted in the infringement of those rights by that same said administration.

The constitution was written to protect us from tyranny, to make the country ruled by laws. By breaking those laws to "save" us what are we saving? Certainly not the moral high ground we have previously had. It used to be so clear cut. Secret arrests, secret prisons, secret trials, secret laws, secret torture, secret wholesale surveillance--those things were all the stuff of communist regimes and dictatorships. Not any more. We need to get that bright line back so we can once again assert our high standards of morality and human rights, so we can differentiate the US from oppressive regimes in a clear, unambiguous way where it is easy to condemn human rights violations in China and Iran without having to tap dance around our self-inflicted hypocrisy.
5.28.2007 5:51pm
Kazinski:
Scote:
I think you are misinformed about what powers a Congressional Intelligence Committe Chairman or ranking member has. If a President is conducting "Stasi-es[s]que" domestic surveilence then there is NO place for him to run or hide. The members of both parties would impeach him and convict him in a heartbeat. So you may put those fevered imaginings aside. And really what would be the purpose of such a program? We already know what you think, and you have plenty of avenues to express those thoughts. What is it about some people where they don't feel validated unless they can imagine they are being oppressed?

You really should read EV's "Dark Night of Facism" post:

Support [for Wolfe's view that fascism wasn't coming to America] came from a quarter I hadn't counted on. It was Grass, speaking in English.

"For the past hour, I have my eyes fixed on the doors here," he said. "You talk about fascism and police repression. In Germany when I was a student, they come through those doors long ago. Here they must be very slow."

Grass was enjoying himself for the first time all evening. He was not simply saying, "You really don't have so much to worry about." He was indulging his sense of the absurd. He was saying: "You American intellectuals — you want so desperately to feel besieged and persecuted!"

He sounded like Jean-François Revel, a French socialist writer who talks about one of the great unexplained phenomena of modern astronomy: namely, that the dark night of fascism is always descending in the United States and yet lands only in Europe.


The simple fact is that this "Stasi-esque persecution" you are actually suffering from really consists of having your views ignored because they are so implausible and out of the mainstream for even the vast majority of the Democrats.
5.28.2007 5:58pm
justanotherguy (mail):
I am not saying that I agree with the positions that the Bush administration has taken and those with JDs can and should argue about them incessantly. However that is not what is happening here. We are politicizing and criminalizing those decisions made in accordance with the due processes set up to ensure that the executive acts resolutely to protect us, but within the bounds of the U.S. Constitution.

Yes, almost anything that the administration can get through the DOJ and his own counsels and get by the Congressional oversight will be per se legal and should get deference. Can we disagree with it? Of course. However we are trying to criminalize policy decisions that were made by reasonable men who followed the proper processes. How else to describe the media bombasts about sickbed visits trying to make something seem sinister when what happened is one faction within the government overturned another factions decisions. Isn't this how it is supposed to work?

The biggest objection I would have if there is really something sinister or wrong involved in the Terrorist surveillance program is that Congress did not bother to exercise any oversight and now that it has some cover to scream. I am much more upset with the lack of fortitude shown by Congressional oversight than anything the Executive tries to get by Congress.
5.28.2007 6:00pm
Henri Le Compte (mail):
jukeboxgrad:
Ahh!! Sir, you have me. Clearly you are too clever for a mere mortal like me. Comey talked!! Drat! My plan to make you all forget that has failed!

(...sob, but it was so perfect!!)

And the NY Times! Caught again! But strangely, I don't recall mentioning them...hmmm. Actually, I think I complained about people within the Bush Administration leaking secrets, not the press. How that leads you to assume that I am droning on about the "liberal media" escapes me. Oh, nevermind! You are one of those fellows that is clever enough to know what people think without them even saying it! The internet's full of that these days! Leaves poor old mortals like me in the dust, leaking like sieves.
5.28.2007 6:10pm
Anderson (mail) (www):
Kazinski, I am indeed speculating without basis.

Because my government has not disclosed the information that would allow me to do otherwise.

Sorry about that.
5.28.2007 6:15pm
scote (mail):

The simple fact is that this "Stasi-esque persecution" you are actually suffering from really consists of having your views ignored because they are so implausible and out of the mainstream for even the vast majority of the Democrats.

Alright, last point first. I never used the word "persecution," in spite of what your ironic quotes might imply. And second, because of the extreme secrecy of the current Administration, you actually can't claim to know for certain that the US isn't using "Stasi-esque" surveillance powers. The Administration you are defending has made it impossible to defend it on a factual basis.

If a President is conducting "Stasi-es[s]que" domestic surveilence then there is NO place for him to run or hide. The members of both parties would impeach him and convict him in a heartbeat.

If only one could believe that. The president has an approval rating of 28-30 percent, the majority of the country polls against the war and the Democratically controlled congress can't even summon up the will to include voluntary troop withdrawals in the Iraq funding bill.

Your argument presumes an idealist and imaginary Congress, and one who has been fully informed by the Administration--which is another imaginary proposition.

What is it about some people where they don't feel validated unless they can imagine they are being oppressed?

Your hypothesis assumes facts not in evidence. My disagreement with your position is not dependent on personal validation but rather the many, many revelations of unprecedented unilateral and authoritarian claims of the current administrations--none of which you have disproved.

As for your quote from EV's post it was from a "panel discussion at Princeton in 1965," over 40 years ago. I well suspect that the participants in that discussion might have different options now in light of the current situation. If you have to reach back into the 60's for opinions that the US isn't currently becoming more authoritarian then I'd say you are really having stretch to support your rather tenuous position.
5.28.2007 6:23pm
scote (mail):
Grrr...errata: "the participants in that discussion might have different opinions now"
5.28.2007 6:27pm
Kazinski:
Scote:
As someone that protested both the Vietnamese war in the '60s, and helped to organize a demonstration on the first Earth Day in 1970, I can speak to the fact that the US is actually less authortarian now than it was then. Now the Authorities will bend over backwards to allow demonstrations, and there are a lot more avenues for organizing and getting speech out there.

The 60's and 70's were the era of Co-intelpro, and FBI spying program. Police spying on the black panthers and other radical organizations, as well as many peaceful and not so peaceful organizations.

Not that there were no serious threats then either. That was an era when the Vietnamese veterans against the war plotted assasinating a US Senator (with John Kerry present, but voting no), the Symbionese liberation party assasinated the Oakland Superintendent of Schools, and my namesake started his bombing campaign to save us from un-programable VCR players.
5.28.2007 6:51pm
Henri Le Compte (mail):
Kazinski:
I think it is a bit unfair to accuse scote (and the millions of others out there like him) of some psychological defect because they have begun to believe that the Bush Administration is tightening the noose of tyranny around their necks. It's actually a pretty common opinion these days. I mean, if Bush was willing to participate (passively or actively) in the murder of thousands of his countrymen on 9/11, then went on to start a war and kill tens of thousands more (US + Arabs), all to benefit himself or his cronies, then why would a little police state-like surveillance be beyond him? It is all part and parcel of the evil caricature that has been embraced by multitudes on people.

The wire tapping is actually the less malignant part of the story.

Now, for me the "why" is a more interesting question. Why do so many people, who are clearly not deranged, so convinced of this stuff? So willing to believe such awful things about their government, and their fellow countrymen? Why do these same people practically jump through the computer screen to get at you with their ad hominems when you simply ask them to reconsider what they are saying? I don't know.
5.28.2007 7:06pm
jukeboxgrad (mail):
just: "Joe Public agrees with the Terrorist surveillance program"

Gonzales testified that there was no DOJ disagreement about "the Terrorist surveillance program." Therefore, either Gonzales is a blatant perjurer (and is nevertheless being protected by Bush), or what offended Comey is something other than "the Terrorist surveillance program," as you have described it. Choose your poison.

"There are no assertions that Congress was misinformed about the salient features of the program"

I'm asserting "that Congress was misinformed about the salient features of the program." Either misinformed, uninformed, or underinformed. Do you have a shred of evidence to support your claim, that Congress knew "what was going on?"

"If the Congressional members of the committee object to what is going on, they have a variety of methods to stop what is going on."

Really? Please be specific.

"If they were upset about it,I think the administration would have compromised with them, or faced riders and restrictions"

Really? Since when does the minority party have the power to force "riders and restrictions?"

"the implementation of that prosecution are academic and open to reasonable different views"

If this was merely an "academic" dispute about "reasonable different views," then Comey, Ashcroft, Mueller et al would not have threatened to resign. Unless you want to argue that it was Bush's practice to hand important jobs like this to moonbat alarmists.

"One view thinks that if a suspected overseas terrorist is talking to someone within the US that conversation can be monitored without a warrant, the other view thinks that …"

You're pretending you know what Comey was upset about. Trouble is, you don't.

"Joe Public doesn't understand why the government can't listen when a terrorist is calling"

No. No one is suggesting "the government can't listen." What Joe Public doesn't understand is why the government can't be bothered to do what Bush promised (17-second video) he always does: get a warrant. By the way, Bush delivered that lie about 6 weeks after the hospital scene.

"Yes, almost anything that the administration can get through the DOJ and his own counsels and get by the Congressional oversight will be per se legal and should get deference."

Maybe you missed this part: Bush kept doing it even though he couldn't "get through the DOJ." DOJ told Bush to stop and he didn't, until weeks after they threatened him with mass resignations (with a critical election coming up). In other words, he kept doing it even though his own DOJ told him it couldn't certify the legality of what he was doing. And we still don't know what he was doing that offended them.

"reasonable men who followed the proper processes"

Maybe you can explain how trying to get a signature from a sedated non-AG fits your idea of "proper processes." Or how "proper processes" included continuing the program even after DOJ said it couldn't certify that the program was legal. Or how "proper processes" included falsely assuring the public that there had been continuous DOJ approval.

"Congress did not bother to exercise any oversight"

Here's another part you apparently didn't notice: until recently, Congress was in the hands of a GOP that acted as Bush's personal rubber stamp.

henri: "Comey talked!! Drat! My plan to make you all forget that has failed!"

I don't think your false statement ("none of the principals talked") was part of a "plan" to fool us "all." I think it was just intended to mislead those readers who aren't paying close attention.

If you had some other reason to make that false statement, you should let us in on the secret and tell us what it is.

"I complained about people within the Bush Administration leaking secrets, not the press"

Whistleblowers don't get very far without help from the press. Leaks to a press that isn't listening (or a press that takes orders from the government) are like trees falling in a forest.

Anyway, you claimed that "this administration … leaks like a sieve." You haven't bothered explaining how it managed to keep 'TSP' secret for roughly 1,557 days (the period between 9/11 and Risen's article). Some "sieve." You said "they can't keep a secret … for five minutes!" You're wrong, but only by a factor of roughly half a million.

And we still don't know what Comey was upset about. We would have known that years ago, if your claim ("leaks like a sieve") was true.

"Why do so many people, who are clearly not deranged, so convinced of this stuff?"

Why are so many people willing to make things up in order to defend the indefensible? In case you haven't noticed, I've cited specific examples of you making statements that are demonstrably false.
5.28.2007 8:15pm
Kazinski:
Henri:
I didn't accuse Scote of a psychological defect, or at least an abnormal one. After all those of us that were of age in the 60's and 70's were at least as paranoid in our fantasies of facism run amok. It made us feel important. I think we would have been just as ready to believe our government was complicit in an attack like 9/11. But then again we were reading books like "A Separate Reality", and taking them seriously, stoned to the gills on acid, peyote, marijuana, and mushrooms, not to mention the sex, and rock 'n roll. What's their excuse?

We had some successes, most notably getting us out of Vietnam, but at the cost of a resulting Communist frenzy of violence that killed millions of innocent victims, left millions of refugees, and has a legacy of continuing impoverishment that has left the peoples of Vietnam, Laos and Cambodia far behind any other countries in the region. It's not something to be proud of.
5.28.2007 8:23pm
Kazinski:
Jukeboxgrad:

I'm asserting "that Congress was misinformed about the salient features of the program." Either misinformed, uninformed, or underinformed. Do you have a shred of evidence to support your claim, that Congress knew "what was going on?"


I would like a more credible assertion. As for whether congress knew what was going on, I think being briefed more than a dozen times, qualifies.


Since when does the minority party have the power to force "riders and restrictions?"


The Democrats are no longer the minority party, what are they waiting for? Arlen Spector as Chariman of the Judiciary committee did much more than this Congress has done to challenge him on the surviellence programs. And I believe there is more than one (or at least I hope so). Congress is not going to move on reining in Bush on these programs, or terrorist detentions, or even the war on Iraq. The argument is pretty much over in the political arena. Sure there will be posing and they will bash Bush of all of these issues (or at least the ones that poll well) but the chances of any substantial congressional action or investigations is pretty much nil.
5.28.2007 8:56pm
jukeboxgrad (mail):
kaz: "being briefed more than a dozen times"

We already knew, but thanks for this additional confirmation that you're easily impressed. You're referring to the fact that Moschella said these words on 12/22/05: "leaders of the Congress were briefed on these activities more than a dozen times."

One small problem: this adminstration has misled us many times. Why should a vague, unsubstantiated statement like this be considered credible? Another small problem: who are "leaders of Congress?" If this is supposed to imply 'leaders of both parties,' then why not say so? Another small problem: for proper oversight, the procedure is to brief the full intelligence committee, in both houses. Why was this not done? Another small problem: what does it mean to say "briefed?" Why should we assume this means a thorough briefing? Another small problem: when did these "dozen" briefings take place? Only after Risen wrote his story? Only after Comey threatened to resign? Why are we expected to assume there was proper oversight all along, since we don't know when the briefings started?

And this is probably the biggest problem: Gonzales swore that DOJ never disagreed with the program that Moschella was discussing. That means either Gonzales is a liar, or Comey was upset about some other program. If the former, then only a fool would consider Moschella's unsworn statement to be more credible than Gonzales' sworn statement. If the latter, then Moschella's sentence ("leaders of the Congress were briefed on these activities more than a dozen times") tells us nothing about Congressional oversight of the program that Comey didn't like.

Either way, the statement you cited is worthless.

"I would like a more credible assertion."

Indeed.

"The Democrats are no longer the minority party, what are they waiting for?"

A comment was made suggesting that years ago the Dems could have thwarted Bush by forcing "riders and restrictions." Trouble is, the minority party doesn't have that power. And as for now, the issue of "riders and restrictions" is somewhat moot, since Bush recently backed down and agreed to submit himself to the FISA court. Of course, he hasn't explained how this does not represent a grave threat to our security. I thought he bypassed the court, for years, because this was necessary in order to protect us from the deadly brown-skinned barbarians. Why is this no longer necessary? If warrantless wiretapping was essential to national security, why is it no longer essential to national security? And if it wasn't essential to national security, why did he claim it was?

In the absence of a remotely plausible alternate explanation, the reason Bush backed down is this: he no longer has a GOP Congress willing to help him conceal his forays outside the law.

And the current issue is this: what did Bush do for 30 months that was so egregious that even his own appointees threatened to resign over it? The answer to this question is still pointedly secret.

"the chances of any substantial congressional action or investigations is pretty much nil"

It's possible that Congress still contains too many wimps who are willing to look the other way. That doesn't mean Bush isn't a crook. It just means we have to deal not just with him but also his enablers. Like you.
5.28.2007 9:54pm
scote (mail):
Kazinski wrote:

As someone that protested both the Vietnamese war in the '60s, and helped to organize a demonstration on the first Earth Day in 1970, I can speak to the fact that the US is actually less authortarian now than it was then. Now the Authorities will bend over backwards to allow demonstrations, and there are a lot more avenues for organizing and getting speech out there.

The 60's and 70's were the era of Co-intelpro, and FBI spying program. Police spying on the black panthers and other radical organizations, as well as many peaceful and not so peaceful organizations.

I think you have provided an important piece of perspective. However, even back when the government was performing dirty tricks and open crackdowns on protesters in the 60's and 70's the claims of unilateral authority were not as great as they are now. There was no program of secret arrests and secret indefinite detentions without charges, no network of secret prisons, no torture chambers just offshore in Cuba, no assertion that the Administration could detain anyone including US citizens forever, without charges by unilaterally designating them "Enemy Combatants," no secret and warrantless wholesale surveillance of internet backbone traffic and call records, no self-authorized "National Security Letters," and so on.

While some of the signs of authoritarianism may have been more visible in the 60's and 70's, the systematic attempt by the current administration to undermine the authority of Congressional oversight and to assert increasing unilateral authority and to create a permanent, unopposed one-party system is a more fundamental issue. The current administration has been methodically setting up the infrastructure of the US government to bend to its authoritarian will, from packing the DOJ with fanatical loyalists who place loyalty over the Constitution, to slipping in exemptions to Congressional approval of USA's in the dead of night into the Patriot Act to the unilateral declaration that the Administration is exempt from any and all laws and constitutional restrictions by dint of the supposed authority of the President's "Commander in Chief" role. Ironically positing that his extraconstitutional power is granted by the same document he claims to be able to ignore.

Although I can respect your extensive experience I think you may have been lulled in to complacency by the relative success of the unprecedented secrecy of the current administration. The old adage, "What you don't know can't hurt you" is a ridiculous falsehood--one the current administration would like to add to, "What you don't know is good for you."
5.28.2007 10:21pm
TMac (mail):
Scote wrote:
"Although I can respect your extensive experience I think you may have been lulled in to complacency by the relative success of the unprecedented secrecy of the current administration."

I would like to see some proof of this assertion. You can't know what you don't know.
5.28.2007 11:43pm
jukeboxgrad (mail):
tmac: "I would like to see some proof"

Bush "has systematically sought to limit disclosure of government records while expanding [his] authority to operate in secret." Facts to back up that claim are here.
5.29.2007 12:07am
Henri Le Compte (mail):
Kazinski:
"What's their excuse?" Well, I see your point, but at the same time I suspect that being young today feels pretty similar to times past. You say the 60's ideological excesses were a result of youth, and the overall culture. The same forces are at work today; only the haircuts have changed! I guess 9/11 is kind of a new Kennedy assassination.

I think some of the worst tendencies of people are inflammed by the press, which has grown increasingly irresponsible over the intervening decades. Take this Newsweek story that started this whole thread. (It is not the most egregious example, but it'll do.) First of all, it is almost exclusively based on the opinions of a series of anonymous sources. Everyone knows that anonymous sources can/do have agendas, but not the slightest skepticism is even hinted at anywhere in the story. Then there is the constant use of insinuation to make points that the facts don't support. Like the recent testimony by Monica Goodling. The author tells us there is "a distinct possibility" that her testimony will "help bring down Gonzales," but neglects to provide fact #1 to support that conclusion.

Then John Yoo. They give us this long series of anonymous cheap shots, but skip right over Yoo's unequivocal statement that Ashcroft was completely aware of everything he was doing. Well, which is it? The subject of these stories completely blows your "John Yoo-- loose cannon" thesis out of the water, but they just go with it anyway. Why let that fact get in the way of a good story?

Then there are sly evasions like this one: "President Bush's personal involvement remains uncertain, as does the precise role of his chief political adviser, Karl Rove." Know what that means? There is no actual evidence that they did anything wrong! But instead of just writing that, we get this BS.

Then there is the ridiculous suggestion that a "seared" Ted Olsen resigned (or refused work in the second term) in some kind of protest over this conflict with the White House. As did a host of other unnamed DOJ officials (because no one knows there names?), and even Ashcroft's resignation was in some mysterious way related to this issue. Instead of what really happened, which is that the Democrats successfully demonized Ashcroft and made him look like a politically radioactive idiot over the Valerie Plame sludge-fest.

Then there is the big Godfather scene where Andy Card and Gonzales go over to Ashcroft's "deathbed" and threaten to waterboard him if he won't sign off on their plans for wanton lawlessness. Oh wait... that's not what happened, is it? But why let facts (or the lack thereof) get in the way of a "good" story? Why does the Newsweek guy insist that they were there to "coerce" Ashcroft? Maybe they were there to genuinely consult with him? Maybe the President decided that he needed a clear legal opinion from the highest law officer in the land? Maybe out of respect-- for his position, the rule of law, and for John Ashcroft personally, he decided that getting the opinion of a subordinate was not sufficient? Why can't that be the story? Because some guy at Newsweek, and some anonymous mudslinger in DOJ say otherwise, that's why.

Whew, Kazinski. I apologize for my outburst! You asked "why?" I think part of the reason is that the news business has changed in the last 40 years. The 24-7 news cycle is insatiable. Reporters are encouraged to make mountains out of molehills. There is no time to get all the facts, or to get them right. So supposition and plausible scenarios become substitutes for news. The competitive news-beast must be fed. People get novels instead of news; screenplays instead of journalism. Paranoia sells. Watergate sells.

And people out here in flyover land, their heads saturated with this stuff, get enraged, and frightened, and confused, and start shooting off at anything that moves. Sometimes that happens on the internet, when people insist that the "dark night of fascism" has already descended. Or that "the Constitution has been shredded!" although nobody can remember where or when or how.
5.29.2007 12:11am
Martin Ammorgan (mail):
Re- newsweek and DOJ: What is the problem with anonymous sources? Remember Libby was demanding to be identified as a "former hill staffer" while he was spinning us into the Iraq invasion. That's beyond anonymity and into misleading. It's the game those savages play.

Just weigh everything in context. As for as DOJ goes, wow. I don't have any inside information, but, as a foundation, anyone who can't tell Gonzales is lying (under oath) about what he knows is simply incompetent and/or a paid GOP shill (not mutually exclusive).
5.29.2007 12:34am
jukeboxgrad (mail):
henri: "Why does the Newsweek guy insist that they were there to 'coerce' Ashcroft?"

Maybe because "the Newsweek guy" has actually paid attention to Comey, who made this statement under oath: "I thought I just witnessed an effort to take advantage of a very sick man."

"Maybe the President decided that he needed a clear legal opinion from the highest law officer in the land?"

Yes, a guy in intensive care, roughly one day post-surgery, recovering from a severe case of an illness which causes excruciating pain, would naturally be considered just the right person to provide "a clear legal opinion."

By the way, Gonzales showed no interest whatsoever in consulting with the person who at that moment was "the highest law officer in the land." That person was Comey. Gonzales ignored Comey, even when Ashcroft reminded Gonzales that Gonzales was addressing the wrong person.

Aside from that, if Gonzales was interested in Ashcroft's opinion, Gonzales could have found out what it was simply by asking Comey. If Comey couldn't be trusted to provide a straight answer to a simple question like that, then he never should have been a janitor at DOJ, let alone DAG.

"Maybe out of respect-- for his position, the rule of law, and for John Ashcroft personally, he decided that getting the opinion of a subordinate was not sufficient?"

Yes, and Bush had so much respect for "the rule of law, and for John Ashcroft personally" that Bush decided to go ahead and continue the program anyway, even despite Ashcroft's disapproval. Makes perfect sense. It also makes perfect sense that later on Gonzales and Bush would both make statements suggesting that DOJ never had any complaints. It also makes perfect sense that folks like you would show up here inventing your own facts and ducking all sorts of fair questions.
5.29.2007 1:02am
Kazinski:
Jukeboxgrad:
I would definitely support Bush's impeachemnt IF he bowed to Comey and refused to reauthorize the surveillence program. At exactly the instant that Gonzales and Card were in the hospital room with Comey and Card, terrorists im Madrid were getting their backpacks ready for the 3/11 Madrid Bombings that occured later that night, Washington time at 2:40 am (7:40am in Madrid). 240 fatalities, 2000 wounded in the attacks. If the Bush Adminstration were not agressively persuing terroism across the globe that could have easily happened here.

Despite the aggressive stance the Adminstration have been much more cognizant of our civil rights than other countries have been, take for instance this European Prime Minster:


Over the past five or six years, we have decided as a country that except in the most limited of ways, the threat to our public safety does not justify changing radically the legal basis on which we confront this extremism.

Their right to traditional civil liberties comes first. I believe this is a dangerous misjudgment. This extremism, operating the world over, is not like anything we have faced before. It needs to be confronted with every means at our disposal.


That is not an option for us here in the US, but I think we should stop short of defining new rights for terrorists. The Supreme Court has never said (actually they said the opposite) that enemy combatants had the constitutional right to Habeas Corpus, yet there are people campaigning for this new "right". The Supreme court has never said that foreign powers have the right to communicate with their agents in the US without fear of eavesdropping, yet we have people campaigning for this new "right". It boggles the mind.
5.29.2007 2:05am
American Psikhushka (mail) (www):
Kazinski-

The Supreme Court never said those things because "enemy combatant" is a nonsensical, made up term to circumvent Constitutional, civil, and international human rights. It means whatever the administration says it means and guess what - you can't even check to see if they are mistaken or lying because the evidence of their "enemy combatant" status is "classified". That is arbitrary detention of whoever they want, with no requirement that they answer to anyone.

The fact that no terrorist attacks have actually occurred here since 9/11 doesn't mean that what the administration is doing is justified, moral, legal, or even effective.
5.29.2007 2:36am
Henri Le Compte (mail):
Jukeboxgrad:
All I can say, because I can see this is pointless, is that you simply do not "know" half the things you think you do. Comey's impressions are not the final word on this matter. If you actually think you are in possession of some complete and accurate set of facts regarding this kerfluffle, well, you are just being grandiose.

Of course, time will tell. Unfortunately, by that time, you will have forgotten completely about this nonsense, and moved on to the next "scandal" that you will no doubt have penetrating insights into. (I'll save you time: Bush did it!)
5.29.2007 2:44am
jukeboxgrad (mail):
kaz: "I would definitely support Bush's impeachemnt IF he bowed to Comey and refused to reauthorize the surveillence program"

Please keep up. It's true that at first Bush went around DOJ and reauthorized the program sans DOJ approval. Thank goodness he made sure his highest priority was keeping us safe! That's obviously the main reason my head and neck are still connected. But he quickly relented and altered the program (i.e., "bowed to Comey") as soon as he understood that he was facing mass resignations.

And that's not all. Early this year, Bush "bowed" again and announced he would not reauthorize the program, and would instead work with the FISA court.

So Bush "bowed" twice, to Comey in 2004 and to other critics in 2007. Here's one of many simple questions you like to duck: why did Bush do so? If the program was essential to national security, why did Bush give in to Comey? Why not let Comey resign? Was Bush worried that mass resignations in an election year would be embarrassing? Why did Bush put politics ahead of keeping us safe? Why did Bush do this in 2004, and again in 2007?

"terrorists im Madrid"

Comey mentioned this in his testimony. He knew about the Madrid attack, and still planned to resign. Apparently he doesn't accept your view that we should capitulate to terrorism and throw our laws out the window.

"The Supreme court has never said that foreign powers have the right to communicate with their agents in the US without fear of eavesdropping"

Nice job pretending that the problem is "eavesdropping." It's not. It's warrantless eavesdropping. And nice job pretending that you know the activities that Comey rejected. You don't.

We know Bush did warrantless eavesdropping, in violation of FISA. He admitted this. Trouble is, we don't know what else he did. In particular, we don't know what he did that upset Comey et al.

henri: "you simply do not 'know' half the things you think you do"

You're suggesting my facts are wrong. And you underline your intellectual honesty by pointing out this impressive number of examples: zero. Meanwhile, you repeatedly pull things out of your hat, and I've proven that with specific examples.

I like this one: you suggesting that there's nothing behind this story aside from the words of "some anonymous mudslinger in DOJ." Welcome to Planet Henri, where sworn public testimony is "anonymous," and a highly-respected Bush appointee is a "mudslinger."

Andrew McCarthy is a frequent NRO contributor and former federal prosecutor. He prosecuted Sheikh Omar Abdel Rahman. This is what McCarthy said recently about Comey:

Jim Comey has been my friend for 20 years.  He is among the most decent, patriotic men it's been my privilege to know.  If he says it happened that way then, so far as I'm concerned, it happened that way.  End of story.

"If you actually think you are in possession of some complete and accurate set of facts"

Here's a clue: it's only on some other planet that we are ever in possession of facts that are perfectly accurate and complete. But most of us still figure out how to get by. It helps if you have a little thing known as common sense.

Let me guess: while you do your best to pretend that Comey's sworn testimony doesn't exist, you also think that badly forged documents and claims by a known liar named "Curveball" (and other similar "facts") were properly treated as sufficiently "complete and accurate" to justify an invasion, and to justify Bush et al using language like "absolute certainty" and "no doubt."

You have that charming, unmistakable Bushist quality: stunningly selective skepticism.

We appreciate the inadvertent public service you provide by giving us such a vivid demonstration.
5.29.2007 10:26am
TMac (mail):
jukeboxgrad:

Bush "has systematically sought to limit disclosure of government records while expanding [his] authority to operate in secret." Facts to back up that claim are here"

A presser from Henry Waxman is hardly proof of "unprecedented secrecy of the current administration."
By your standard, James Inhofe has proved there is no such thing as global warming.
5.29.2007 10:28am
Anderson (mail) (www):
A presser from Henry Waxman is hardly proof of "unprecedented secrecy of the current administration."
By your standard, James Inhofe has proved there is no such thing as global warming.


Perhaps JBG thought that the *substance* of the linked item, rather than its author, was what supported his contention?
5.29.2007 10:44am
rarango (mail):
To repeat a question asked upthread and not as yet answered: Does any one know of other recent threats of mass resignation within a bureaucratic department? My impression is that they are quite rare.
5.29.2007 11:40am
scote (mail):

A presser from Henry Waxman is hardly proof of "unprecedented secrecy of the current administration."
By your standard, James Inhofe has proved there is no such thing as global warming.

Well, even John Dean who says this administration is the most secretive ever, more secretive than the Nixon Administration. I'm not sure the Administration even denies that it is the most secretive ever. I suspect they are rather proud of the fact.

If you are going to argue something at least pretend to argue within the bounds of reality. Good grief. The VP went to court to keep from having to even release the names of people in his energy commission!

Suggest a more secretive administration?
5.29.2007 12:32pm
Orielbean (mail):
American Psi - the Enemy Combatant status is used in the Geneva Conventions to identify a captured soldier and it provides provisions and rights even to soldiers hiding in civilian populations in civilian clothing i.e. terrorist - it is a broader definition of a POW that gets fewer rights than a uniformed active duty soldier.

However, the administration took the term and then said that THEY controlled the meaning of the combatant and what rights they were allowed, vs the Geneva Conventions's rights that are outlined and specific. And they control if you are a combatant vs a POW, which is also not allowed by the conventions. That is the rub of that term and why it is scummy move.
5.29.2007 12:40pm
TMac (mail):
scote
I believe it lies upon the person asserting Bush to have the most secretive administration in history to prove his allegation. John Dean, "reformed Republican", is no more an unbiased source than Mr. Waxman.
If I were to suggest an administration more secretive than Bush, I would be placing myself in the position of having to prove my own unsubstantiated assertion.
5.29.2007 1:33pm
Kazinski:
Jukeboxgrad:
I have no problem with Bush altering "the program" (whatever it is) to meet Comey's objections or concerns, but he did it by continuing the program while the modifications were considered and implemented. Bush was not going to suspend the program and lower our guard while that was happening. And of course at the same time putting Comey on notice that the program was going to continue with him or without him on board. I hope you can appreciate the difference in the two approaches.

Orielbean:
Whenever any law or regulation is implemented it must be interpreted to be implemented. The Geneva conventions are the law of the land, but no matter how specific any law or treaty is written when applied to the facts there will be room for interpretation. Just like any other law or treaty obligation it is up to the Adminstration to implement the law according to their good faith interpretation, until the courts rule differently. I don't have any doubts that the procedures put in place by the Adminstration were sufficient to comply with the laws of war, the problem is the mistaken belief by many in this country that the higher standards of criminal law apply to enemy combattants, and that is simply not the case.
5.29.2007 1:51pm
scote (mail):

If I were to suggest an administration more secretive than Bush, I would be placing myself in the position of having to prove my own unsubstantiated assertion.

...and one you couldn't do because such an administration does not exist, something which you do not deny.

I think there is more than sufficient positive evidence to prove the Bush Administration is more like than not to be the most secretive ever. Why would you even pretend this is not true? While there are many arguable aspects of the current administration, the unprecedented secrecy really isn't one of them.

http://www.ombwatch.org/article/articleview/1145/1/18/

http://oversight.house.gov/features/secrecy_report/index.asp

http://www.slate.com/id/2114963/
5.29.2007 2:06pm
K Parker (mail):
M. Lederman,

I would have thought that "the bare minimum number of redactions necessary to preserve understandably secret information about NSA's technological capabilities" is something that could be known, in advance, only if we have guaranteed perfect foreknowledge. Of course those doing the classifying and redacting are likely to push for more of it than necessary, but that doesn't prove that someone else's idea of the "bare minimum" is thus more likely to be correct.

Also, I see some commenters repeatedly refer to "domestic surveillance" Did I miss where the news came out that some of the programs were monitoring calls where one end wasn't outside the country?
5.29.2007 2:19pm
K Parker (mail):
Mark Field,

Sorry, your WWII Japanese hypothetical is very unconvincing. I realize there's a tendency, often unconscious, to paint those outside the West as unsophisticated rubes, and thus susceptible to arguments based on "technical prowess will awe them". I have no idea whether this is part of what's behind your hypo, but do you really have any idea what kind of ongoing, convincing demonstration would have been needed to make the Japanese military leaders believe we could instantly break any and every code they might use? That the very concept of hiding meaning behind some kind of code was forever irrelevant? Wouldn't we need sci-fi-style mind-reading to have that level of assurance that no one can slip any meaning by us?
5.29.2007 2:20pm
scote (mail):

Also, I see some commenters repeatedly refer to "domestic surveillance" Did I miss where the news came out that some of the programs were monitoring calls where one end wasn't outside the country?

Yes, you did.

You are making the mistake of underestimating the Administrations surveillance program and limiting the concept of surveillance to traditional phone calls. Other charges include wholesale monitoring and warehousing of *all* call call records (except, apparently, Quest-only records) and wholesale tapping and datamining of the AT&T internet backbone. And don't forget the "collateral" damage monitoring of strictly domestic calls and calls routed through Canada and back to the US--not to mention the details they are still hiding.
5.29.2007 2:31pm
Crust (mail):
K Parker:

Also, I see some commenters repeatedly refer to "domestic surveillance" Did I miss where the news came out that some of the programs were monitoring calls where one end wasn't outside the country?

For the purposes of FISA (as opposed to e.g. your phone bill), calls with at least one end in the country are considered domestic. As you're noting, the TSP involves monitoring of calls with one end outside the country. Whether the earlier program that Comey et al. objected to also had this constraint is anybody's guess.

Separately, the call detail database that was originally reported by USA Today (but neither confirmed nor denied by the Bush administration) does cover purely domestic calls (i.e. with both ends in the US). Note although this covers tens or hundreds of millions of Americans, it involves just call details not the actual contents of the call. Still, it likely violates (the pen register provisions of) FISA.
5.29.2007 2:33pm
Mark Field (mail):

I see some commenters repeatedly refer to "domestic surveillance" Did I miss where the news came out that some of the programs were monitoring calls where one end wasn't outside the country?


"Domestic" includes cases in which the intercept itself occurs on US soil. FISA requires warrants in that case and in the case where the target is a "US person".


I realize there's a tendency, often unconscious, to paint those outside the West as unsophisticated rubes, and thus susceptible to arguments based on "technical prowess will awe them". I have no idea whether this is part of what's behind your hypo, but do you really have any idea what kind of ongoing, convincing demonstration would have been needed to make the Japanese military leaders believe we could instantly break any and every code they might use?


Putting aside the gratuitous insult, my point was really quite simple and unanswerable: certain facts are so commonly known and understood that even our enemies must agree with them. For example, we didn't need to keep secret the fact that we could hear the Japanese radio broadcasts; they already knew that. There was no secret to keep. Similarly, I doubt there's any real secret to the fact that the US government can, if it wants to, intercept pretty much any electronic communication, certainly any wireless communication, anywhere in the world. That latter fact is the same fact the Japanese knew. Pretending that it's a secret is absurd.

The key point is that much of the "program" need not be kept secret because people assume it as a matter of course. The specific operational details might well be something to keep secret; depends on whether there are counter-measures available. It also depends on whether those counter-measures work well. If we can force the enemy to adopt 18th century communications, that will degrade their capability quite a bit. In that case, we might (note the conditional) actually benefit by revealing what we can do.

If we've learned anything from our previous experiences in the Cold War, in Vietnam, and even in WWI, it's that government claims for secrecy often involve (a) evidence demonstrating that our government's public assertions are false; and (b) information known to the enemy but secret only from us. That's no way to run a republican government.
5.29.2007 2:48pm
TMac (mail):
scote
You can cite any number left-liberal sources, such as Slate, Waxman OMB watch, John "Bush is a mental lightweight" Dean, so I will concede, that according to liberals, Bush has the most secretive administration in history.
5.29.2007 2:52pm
scote (mail):

You can cite any number left-liberal sources, such as Slate, Waxman OMB watch, John "Bush is a mental lightweight" Dean, so I will concede, that according to liberals, Bush has the most secretive administration in history.

Thank you for the "I concede that you say that" concession. It ranks up there with the "I apologize that people have decided to feel insulted by my statements" apology.

Indeed, the sites I cited might be called "liberal" but I've yet to hear you discredit any allegations of fact as opposed to Ad hominems as to source. If Republicans are going to pretend the plain facts don't exist then it is rather tautological to decry that the references to extraordinary Bush Administration secrecy are all "Liberal." Reminds me of a recent case where a high school student was falsely accused of making a bomb threat. He proclaimed his innocence to which the principal retorted (paraphrasing), "Why should I believe you? You're a criminal."

You have **conveniently** labeled all opposing views (for all practical purposes) as incredible, thus making your position artificially immune to criticism and refutation. You've manage to make your own version of the insular Bush bubble.
5.29.2007 3:19pm
American Psikhushka (mail) (www):
Orielbean-

Sorry - I forgot the "unlawful" part of "unlawful enemy combatant". You are right that "enemy combatant" is a valid term that is supposed to be a catch-all for everyone besides uniformed military combatants. "Unlawful enemy combatant" is the nonsensical, made-up term that creates another category that they claim to arbitrarily define.
5.29.2007 3:47pm
jukeboxgrad (mail):
tmac: "A presser from Henry Waxman"

As several people have pointed out, what matters is what the document contains, not who wrote it.

And it's a lot more than a "presser." It's a meticulously detailed 81-page report (pdf).

Here's the odd thing: Republican congressmen are not currently producing thorough studies that are critical of Bush. What a shock! So if your personal rule is to dismiss facts that are troublesome to Bush if they are presented to you by anyone other than a Republican, you are generally guaranteeing that you will never have to deal with any such facts. Nice trick!

"By your standard, James Inhofe has proved there is no such thing as global warming."

When Inhofe presents serious proof that "there is no such thing as global warming," I'll examine that proof in a serious way. I won't take the cowardly way out and wave my hand to dismiss a detailed analysis as only a "presser" because he happens to have an R after his name.

If you have any remotely substantive basis to claim that any of Waxman's facts are wrong, you should let us in on the secret and tell us what it is.

"I believe it lies upon the person asserting Bush to have the most secretive administration in history to prove his allegation"

I offered you 81 pages of detailed facts, analysis and proof. You seem to be saying that it's your normal practice to reflexively dismiss any proof not assembled by a Republican. This would explain why you're not well-informed.

"I will concede, that according to liberals, Bush has the most secretive administration in history"

I frequently run into the following definition of 'liberal:' anyone critical of Bush. As scote pointed out, it seems that you've found yourself a comforting tautological bubble to hide inside. It goes something like this: 'anyone criticizing Bush is, by definition, a liberal, and is, therefore, by definition, someone who can't be trusted, so therefore I will ignore them, so therefore I don't need to ponder any facts that are incongruent with my Bush-worship.'

oriel: "However, the administration took the term and then said that THEY controlled the meaning of the combatant"

That's right. And the Military Commissions Act gives POTUS the right to declare any US citizen to be an unlawful enemy combatant, with no judicial review. This means no habeas corpus for US citizens.

kaz: "at the same time putting Comey on notice that the program was going to continue with him or without him on board"

According to Gonzales, the program didn't continue. He told us DOJ never disagreed with "the program." There's only one way to interpret this (unless we assume Gonzales is a liar): Bush scrapped the program Comey didn't like, and started over with a new one.

If the old program was what was really needed to keep us safe, you haven't explained why it's OK with you that Bush "bowed" to Comey's objections and settled for something lesser. You also haven't explained why it's OK with you that Bush, this January, announced that he would not reauthorize the program. What!? I thought it was essential to our safety.

"the problem is the mistaken belief by many in this country that the higher standards of criminal law apply to enemy combattants"

The problem is people like you glossing over the salient fact that POTUS now has the power to unilaterally declare that any US citizen is an unlawful enemy combatant. Which means that US citizens are no longer protected by "the higher standards of criminal law."

parker: "Did I miss where the news came out that some of the programs were monitoring calls where one end wasn't outside the country?"

You already received some good answers to this. We know very little about what it was that Bush did for 30 months that eventually convinced Comey et al to start looking for the exits. Various people are acting like they know, and suggesting that Bush wasn't doing anything too troubling. Trouble is, they don't actually know what Bush was doing. I think folks like Comey would not threaten to resign unless something quite egregious was going on.
5.29.2007 3:50pm
American Psikhushka (mail) (www):
Kazinski-

I don't have any doubts that the procedures put in place by the Adminstration were sufficient to comply with the laws of war, the problem is the mistaken belief by many in this country that the higher standards of criminal law apply to enemy combattants, and that is simply not the case.

They can define anyone, including US citizens protected by the Constitution, as "unlawful enemy combatants" because it is a nonsensical category that they claim to have the right to arbitrarily define. Then they can claim that any evidence for their categorization is classified and therefore they do not have to release it. The result: The possibility of illegally detaining anyone for any period of time without judicial or public review or oversight. Allowing the government to arbitrarily define away the Constitution rights of a US citizen means the Constitution has essentially become meaningless.
5.29.2007 3:59pm
Crust (mail):
This is only vaguely on topic, but anyway a question that's been nagging at me: What happened to the NSA call detail database?

The administration neither confirmed nor denied its existence. As reported, it pretty clearly violated the pen register provisions of FISA. Has there been any follow up from the press? Has it been discontinued? Or brought under FISA? From what I've read, the public statements about now complying with FISA only apply to the TSP. The TSP has always been described as 1) involving calls with one end outside of the United States and 2) involving people believed to have a connection to al Qaeda. So for both those reasons, statements about the TSP couldn't reasonably be said to encompass the database which covers the call details including purely domestic calls of tens or hundreds of millions of Americans.
5.29.2007 4:09pm
Maureen001 (mail):
What a crock of innuendo supported by absolutely no facts whatever, utilizing inflammatory language ("Bush's Monica Problem"??? Oh, puhleez!) to have set off such a pedantic, often scholarly and occasionally emotionally heated debate!

If only such rhetoric could take place without shameless flame-fanning.
5.29.2007 4:27pm
Snappers:
I definitely do not feel educated with regards to this thread. Instead, I see a p*ssing match going on between some posters. *Sigh* So refreshing.

I am anti-Bush and a vehement non-Republican. And an embarrassed Democrat. I wanted to get my pedigree out of the way.

Whether the language peddled by this Administration involved "improper" or "illegal" - I will still shudder. Their definition and mine do not seem to jive on my internal "WRONG WRONG WRONG" compass.

Are we safer? Can any of you who are defending what this Administration has done to the US Constitution or Geneva Conventions say that with confidence? The line that no attacks have happened since is a crock. Prior to 11 September 2001, we had the first (1993) WTC attack and some bombings (US Embassies, USS Cole) outside of the US.

Funny thing about the Madrid bombings mentioned and the London bombings - both were post-US occupation in Iraq. Madrid (Dec. 2004) was 18 months after our occupation and London (July 2005) was 26 months after our occupation. I do wonder if that had any relevance on the matter... I wonder if what Ron Paul said about our presence in parts of the Middle East (for which he was ridiculed for) has any relevance. Maybe, just maybe, our own policies have contributed to what has happened to us.

One thing this Administration has taught us - Frak personal responsibility. Not an ounce of it has been taken by this Administration or its cronies.

What is worth the price of our "safety"? Erosion of the US Constitution? Subversion of laws? You need a law to protect us - try legal means to obtain it. When AG Ashcroft (Anti-boobie on Lady Justice) deigns something improper/illegal, you better believe it is horrifying in its illegality.

Are you proud of what we have allowed this country to become under Bush? Proud that the Republican led Congress didn't exercise ANY meaningful Oversight?

I agree that politics on both sides has played a significant role and the Dems will be employing it just as their "honorable" predecessors...

But before you slam the Democratic-led Congress for their nonsense in looking into this DOJ guffaw, please remember one thing: They've been in office since JANUARY 2007. Five whole months...

If the Bush Administration was serious in their protection of the US - they would be more forthcoming and honest and responsible. All traits they chucked at the door.

And lest we not forget, a recent poll of US soldiers in Iraq had horrifying numbers in terms of acceptance to torturing Iraqis. That is the demonstration of our "nobility" right there. Not giving the troops' families extra money also helps our nobility. Their treatment at VA hospitals - another gold star on our record.

Again, I cannot say that the pansy Dems are going to save the day and solve everything... But if they can at least chisel away at what has occurred under the lack of Republican oversight, it has to be better.

How can any of you DOJ defenders not look at what is going on and see wrongdoing? Forget the flippant term "illegal" and just think basic wrong/right or bad/good.
5.29.2007 4:54pm
Kazinski:
AP:
You are just plain wrong that enemy combatant status can be conferred on just anyone at the Presidents whim:

[T]he President declared that 'all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States ... through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals'.
The Proclamation also stated in terms that all such persons were denied access to the courts.


Seems pretty specific to me. The Supreme Courts response to this proclamation was to support the President and Congress's power, with only one minor reservation:


We must therefore first inquire whether any of the acts charged is an offense against the law of war cognizable before a military tribunal, and if so whether the Constitution prohibits the trial.... But as we shall show, these petitioners were charged with an offense against the law of war which the Constitution does not require to be tried by jury.


The President that issued the proclamation was Roosevelt, and the Supreme Court reviewed the matter in 1942, but it is still the law of the land, and is a reminder that Bush is not carving out any new powers here but is excercising recognized powers of the President according to settled law. Settled law that was recently affirmed in Hamdi.
5.29.2007 5:12pm
Maureen001 (mail):
Snappers:

On what do you base your knowledge of what is transpiring at the DOJ? It sure as heck can't be on this ridiculous inflammatory piece that tries to pass for journalism! Are there any other sources you can cite that are factual? Or are they more of the same?

Fact: US attorneys are at-will employees who serve at the pleasure of the President.
Fact: The President needs NO reason to fire a US attorney.
Fact: Former President Clinton fired 90 US attorneys. Where was the outrage then?
Fact: Monica Goodling has testified under oath that she "crossed a line".
Fact: Monica Goodling has resigned her position.

The rest is speculation, unsubstantiated rumor, and a selective choice in use of language designed to elicit an emotional reaction in you, the target. Wait for the facts; then, respond.

If it is so worrisome to you to have (again, unsubstantiated) reporting of policy debate and discussion disclosed to you, there is always the Hillary Clinton School of Health Care Reform in which you can take comfort.
5.29.2007 5:16pm
rarango (mail):
While this may not surprise you Maureen001, some commenters here have declared the position one takes on the issue a litmus test of independent thinking. Who knew
5.29.2007 5:23pm
jukeboxgrad (mail):
kaz: "You are just plain wrong that enemy combatant status can be conferred on just anyone at the Presidents whim"

You are just plain wrong that enemy combatant status can't be conferred on just anyone at the President's whim.

"the Supreme Court reviewed the matter in 1942"

You're quoting from Ex Parte Quirin, which is beside the point for several reasons. Here's one: it was ruled in 1942. Subsequent to that time, the US ratified the 1949 Geneva Conventions. That changed things.

Here's another reason: at the time of Ex Parte Quirin, the Military Commissions Act of 2006 did not exist. That also changed things. MCA, in section 948a, defines “unlawful enemy combatant” as follows:

a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States

There’s a big problem here, because they easily could have said “an alien person.” Instead, they said “a person.” This is very troubling, especially because there is other language that clearly references “alien,” elsewhere in the bill. In other words, this omission is quite deliberate.

And here’s what this means: the president can unilaterally declare, without review by any court, that any US citizen is an “unlawful enemy combatant,” as long as the president, in his sole discretion, believes this person has “materially supported hostilities against the United States.” (What might that mean? Sending money to an Arab charity? Subscribing to the Hezbollah channel on satellite TV? Renting F911?)

So what happens to such a person? Will they be tried by a military commission? Will they be tried at all, or simply detained indefinitely? Answer: whatever the president wants.
5.29.2007 5:37pm
Snappers:
Maureen001~

I will not address a lot of your "FACTS" - which are true. But you are using them out of context.

The Clinton did it line is tiresome and factually correct and contextually BS. Recall that before BC took office, there were 8 years of Reagan followed by 4 years of his VP. So, GHWB firing Reagan's USAs? No, of course it did not happen.

But here is an excerpt from 3/13/07 carpetbagger:

"In 1993, Clinton replaced H.W. Bush’s prosecutors. In 2001, Bush replaced Clinton’s prosecutors. None of this is remotely unusual..."

http://www.thecarpetbaggerreport.com/archives/10193.html

The issue is not a fell-swoop firing of USAs at the beginning of a new Admin, but at the start a Prez's second term. That is what is unprecedented.

Let's go for your double FACTS: Pleasure of the Prez and NO reason to fire.

So, I'm Prez and you are one of my USAs. You have served through term 1 of my presidency and have very good EARS reports. But I fire you. Why? Well, you have fugly shoes and I require classy shoes of my USAs. And I have a 33-year old friend with not much prosecutorial experience but she has a killer Manolo and Choo collection. According to your line of FACTS, I can do that. I don't need a reason. And I am assuming that following your FACTS, that is not improper, either...

Now, I know that is a grossly exaggerated scenario, but it holds about as much water as the DOJ's line of "performance related reasons."

Oh, one Goodling query:

If she knew what she did "crossed the line", why did she wait so long to resign?


There are more serious discussions on this thread about NSA, NSLs, wiretapping the entire country, holding people as "unlawful enemy combatants" for who knows how long and Gawd knows where...

Does that sit well with you, Maureen001?

The fact that our government can make a massive whoopsie (like M. Arar) without consequence? That we can reduce a man like Jose Padilla to barely functional based upon bogus charges that he is a terrorist? That these people cannot know the evidence against them because of "national security" issues? Does it sit well with you that our US soldier's families here at home live in poverty? That their spouses put their lives on the line for a measly $1300/month and our esteemed Prez cannot find it in his heart to give our troops a raise?

See, I am a white female. I am not going to be on a list unless I disparage Bush/Cheney in public remarks. Maybe I will get an OhSoFun "No Fly List" mention. That's it. But Gawd Forbid I am descended from the Middle East or are Muslim...

Sadly, the DOJ scandal is the least offensive thing this Admin has done.

I cannot get the picture of Katrina and "heckuva job Brownie" out of my mind...
5.29.2007 7:33pm
Kazinski:
Jukeboxgrad:

The Military Commissions act was drafted and implemented specifically to bring the Gitmo procedures in line with Ex-Parte Quirin and Hamdi. The SC said that the original Military Commissions used did not meet the Quirin standard and had to be modified. So Congress and the President modified it.

I wasn't aware that Supreme Court decisions before 1942 were null and void. And I'd be plenty surprised if the Geneva Conventions imposed Habeas Corpus requirements beyond those of our Constitution. A large number of signees to the Genevea Convention don't guarantee such basic rights as trial by jury, or a presumption of innocence.

And as for your concern that the MCA does not exempt US Citizens from its jurisdiction, neither did Roosevelt in his proclamation nor the Supreme Court in upholding it:

Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war. It is as an enemy belligerent that petitioner Haupt (a US citizen) is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused.


Nor I might add did it stop those British Citizens from killing and maiming their fellow citizens in the London Underground bombings.
5.29.2007 8:37pm
ATRGeek:
One of the interesting things about blame is that it can be shared without being diminished.

In this case, for the Executive Branch's lawbreaking, I blame Vice President Cheney for denigrating the Constitution, laws, and treaties of the United States, and for arguing that he and the President are above the law.

I blame President Bush for accepting Cheney's arguments.

I blame lawyers like Gonzales, Addington, Bybee, and Yoo for conspiring to promote Cheney's lawless vision throughout the Executive Branch.

I blame the various officials of the Executive Branch who took this opportunity to break the law.

I blame the other lawyers and officials in the Executive Branch who were aware of what was happening and who did not do whatever they could to stop it, including resigning if necessary.

I blame those in Congress who failed to provide oversight and who worked to prevent review in the courts, and I provisionally blame them for failing to make all of the responsible parties answer for their conduct after the fact.

I blame those in the press and other commentators (including in academia) who lowered their ordinary standards for official claims and conduct because the relevant officials cited national security concerns.

And most of all, I blame those among the American people who continue to defend the Administration's lawbreaking in the name of national security, or simply because of partisan allegiances.
5.29.2007 9:29pm
jukeboxgrad (mail):
maureen: "Former President Clinton fired 90 US attorneys. Where was the outrage then?"

You're repeating a standard GOP talking point, which suggests that Bush's actions are no different than Clinton's actions. Snapper has already explained why this talking point is false. Detailed references backing up what he said are here.

"On what do you base your knowledge of what is transpiring at the DOJ?"

For some strange reason you've managed to completely gloss over Comey's testimony.

kaz: "The Military Commissions act was drafted and implemented specifically to bring the Gitmo procedures in line with Ex-Parte Quirin and Hamdi."

Then it's a damn shame that MCA went beyond Quirin. If you really don't know this, Marty can explain it to you, here.

"And as for your concern that the MCA does not exempt US Citizens from its jurisdiction, neither did Roosevelt in his proclamation nor the Supreme Court in upholding it"

You're developing quite a track record of deceptive quoting. I pointed this out here, and now you're doing it again.

Yes, Roosevelt and the SC held that a US citizen can be considered an 'unlawful combatant.' The part you're leaving out is that according to Quirin:

a presidential proclamation authorizing military tribunals "does not bar accused persons from access to the civil courts for the purpose of determining the applicability of the Proclamation to the particular case."

(See here, here.) This is an example of how MCA goes beyond Quirin, in a critical manner. Under MCA, detainees are indeed denied access to civil courts.

Anyway, it's helpful that you acknowledge that MCA (or at least parts of it) applies to US citizens. Lots of Bushists are in denial about that.
5.29.2007 11:52pm
Maureen001 (mail):
Snappers:

If you're going to make reference to thecarpetbagger.com as your source for basing your statements, you're going to have to understand that I will check out your reference. Who is thecarpetbagger? From the website:

So, who is “The Carpetbagger”?
My name is Steve Benen. I’m a freelance writer, researcher, and political consultant, working in politics in one capacity or another for about 10 years. My articles and op-eds have appeared in a variety of publications, including Washington Monthly, The American Prospect, The Gadflyer, and Church &State. I’ve also been a guest on several radio programs, including NPR’s “Talk of the Nation.” In addition to The Carpetbagger Report, I’m the lead editor of Salon.com’s Blog Report (formerly the Daou Report), and have been a contributor to Talking Points Memo, Washington Monthly, The American Prospect, the Huffington Post, the Guardian, Crooks &Liars, AlterNet, and Political Wire.



Now there's a real fair and balanced CV, eh?

It's most disheartening to read your post and find it almost an excerpt from this man's blogging. When former Clinton fired 93 US Attorneys, it was unprecedented. That's why it's brought up now, not because it somehow hides something sinister in President Bush's firing 7 US Attorneys.

I don't understand why you acknowledge that US Attorneys serve at the President's pleasure and can be fired at will, then go on to ask "Why" in some very creative but not in the least bit relevant scenario. "At-will" and "at the pleasure of" means there doesn't have to be a "Why".

I'm not going to respond to your tirade item-by-item. Not my job. I will hit what I think are the high points, though.

What exactly do you know about Jose Padilla that makes you think he the charges against him are "bogus"? Do you know something the rest of us don't? Would you like to share?

Entry level E-1 pay scales do start at $1301.40 per month, but then you must also add in housing pay that ranges from $686 to $2440 per month (depending on location) for those who are not given base housing, COLA pay which can be as much as an additional 8.3% of base pay for those assigned to high cost areas, and Special Pay incentives for those in specific job categories or those assigned to hazardous duty. Entry level officers (O-1) pay scales start at just over $2400 per month. As IRL, it pays to be educated, no? Soldiers were given a 2.2% pay raise on January 1 and some mid-range levels were given additional pay raises in April. Remember that it is the military that proposes its budget and Congress that passes it when you're assigning blame here.

You might want to trade in your blogger for your search button to feed your facts.
5.30.2007 12:00am
Kazinski:
Jukeboxgrad:

I quoted way above the part of the decision that said the courts could determine whether or not the charges were covered by criminal laws or the laws of war. I'm not going to repeat myself in every post. But once the court determines that the charges are valid violations of the laws of war, then that's all she wrote, the right to jury trial doesn't apply, and Habeas Corpus is out the window. That's what the court said, and that is what I said the court said.
5.30.2007 12:05am
Mark Field (mail):

When former Clinton fired 93 US Attorneys, it was unprecedented.


No, Reagan did it too. Since you reject reliable media sources, perhaps you'll be happy with the propaganda arm of the Republican Party as a source:

"When the party in power changes hands in the White House, it is expected that the new president will fire all the sitting U.S. attorneys, as was the case for both Ronald Reagan in 1981 and Bill Clinton in 1993. President Bush, unlike Clinton and Reagan, did not fire all the attorneys en masse when he took office in 2001, and allowed a few to continue in their positions for several months. All were replaced with his own selections early in his administration, however.

It is very unusual for a president to fire U.S. attorneys who were his choices for the job."


"At-will" and "at the pleasure of" means there doesn't have to be a "Why".


No, there are also prohibited reasons to fire at will employees: race, gender, other violations of public policy. The issue is whether the recent firings fell into a prohibited category.
5.30.2007 12:28am
jukeboxgrad (mail):
kaz: "I quoted way above the part of the decision that said the courts could determine whether or not the charges were covered by criminal laws or the laws of war."

The post you seem to be talking about (here) doesn't say what you claim it says. It says nothing about "criminal laws." It doesn't even mention the word 'criminal.' In particular, it does not make clear that Quirin ruled that detainees have "access to the civil courts for the purpose of determining the applicability of the Proclamation to the particular case." The passage you cited ("we must therefore first inquire …") is saying something else.

As usual, you're spinning like a top, and glossing over this central fact: MCA goes beyond Quirin.

"But once the court determines that the charges are valid violations of the laws of war"

Under MCA, a "court" never gets involved. This is a big problem that you're determined to sweep under the rug.

maureen: "When former Clinton fired 93 US Attorneys, it was unprecedented."

As Mark pointed out, you're wrong:

…historical data compiled by the Senate show the pattern going back to President Reagan. Reagan replaced 89 of the 93 U.S. attorneys in his first two years in office. President Clinton had 89 new U.S. attorneys in his first two years, and President Bush had 88 new U.S. attorneys in his first two years.

Other helpful facts along those lines are here.
5.30.2007 12:46am
ATRGeek:
On Padilla, there is the slight matter of the government detaining him without charges as an illegal enemy combatant for years on the basis of one set of allegations (amounting to the claim that he was planning attacks in the US on behalf of Al Qaeda and was subject to the 2001 AUMF), and then indicting him on a completely different set of allegations (amounting to the claim that he was conspiring to commit crimes against people overseas and with no mention of Al Qaeda).
5.30.2007 1:07am
American Psikhushka (mail) (www):
Kazinski-

The President that issued the proclamation was Roosevelt, and the Supreme Court reviewed the matter in 1942, but it is still the law of the land, and is a reminder that Bush is not carving out any new powers here but is excercising recognized powers of the President according to settled law. Settled law that was recently affirmed in Hamdi.

Well, as jukeboxgrad has pointed out (and it's good that he/she is here to point it out) the MCA does carve out new powers. The president can declare anyone an "unlawful enemy combatant" and do so without judicial review. Goodbye Constitution.
5.30.2007 1:40am
Snappers:
To corroborate ATRGeek, here are two sources:

1) http://www.foxnews.com/story/0,2933,242750,00.html

I will note key excerpts that are out of order, but I am listing them in terms of their chronology. All are from same excerpt:

"...Padilla was arrested in 2002 at Chicago's O'Hare International Airport and originally accused of plotting to detonate a radioactive "dirty bomb" in a U.S. city...

President Bush designated him an enemy combatant, and the 36-year-old U.S. citizen was held without criminal charge at a Navy brig in South Carolina for 3 1/2 years, until he was added to a Miami terrorism-support case in late 2005.

...The three men
[Padilla and two co-defendents / snappers comments] are charged with being part of a North American cell that provided cash, supplies and recruits to Islamic extremists around the globe...

He was added to that case amid a legal clash over the president's wartime detention powers. The dirty bomb allegations are not mentioned in the Miami indictment..."


2) http://www.humanrightsfirst.org/
us_law/inthecourts/supreme_court_padilla.htm

"José Padilla, a Brooklyn-born U.S. citizen, was arrested by civilian authorities on May 8, 2002, at Chicago's O'Hare airport. He was originally held as a material witness in New York in connection with the government's ongoing investigation into threats of terrorism. In June 2002, the president designated Padilla an "enemy combatant," and ordered him transferred from civilian detention in New York to a military brig in South Carolina. He remained there for more than three years without charge or trial, and with limited access to an attorney...On November 22, 2005, after holding Padilla for more than three years without due process, the federal government indicted him on charges of conspiring to kidnap, murder, and injure people abroad. No charges were made relating to terrorist plots within the United States."

This is not even the meat of the case against Padilla which goes into different court rulings over who had jurisdiction, where he could be held w/o any court interference, etc.

There are other bloggers on this board who are better qualified to summarize the court rulings with regards to Padilla, his custody, charges by various courts and which appeals courts overruled prior courts.

FYI, the second link has links to the case history of Padilla.

With regards to commenting on pay for military combatants, the average pay is $1300, plus the housing disbursements you correctly mentioned. I will concede I am undercutting how much money soldiers make. Here is an older link talking about some take home pay that states soldiers make approximately $18.52 / hr. I do not know how reflective it is, but it is the highest estimate I have seen.

http://www.qoae.net/posts/1140739327.shtml

But you have read the stories on the VA about how they are treated once they return, correct?

Here is one from abc.com:

http://abcnews.go.com/Nightline/story?id=1562145
OR
http://www.famedetroit.org/debt.htm

Or about whether they are wearing the best body armor:

http://www.sftt.org/

Or this site from Military Families speaking out:

http://www.mfso.org/
5.30.2007 2:01am
Kazinski:
Jukeboxgrad:
The only way a court would get involved under both Quirin and MCA is if the illegal combatants (not defendents) wanted to appeal whether the charges were violations that required a trial by jury. That is not something the MCA can stop. But since Congress defines in the Uniform Code of Military Justice what constitutes an offense against the laws of war, then any such appeal would likely be fruitless. The MCA cannot close the courts in that limited set of circumstances. What MCA did is close the courts to the detainees to appeal their sentences. Sentences for crimes against the laws of war. Article III courts are the proper venue for criminal and civil matters, Military Courts (non Article III) are the proper venue for offenses against the laws of war. It seems to me though you seem to have more of a problem with the laws that congress passed rather than alleging that Bush is implementing them improperly. I thought that was the Presidents job.

Now I can understand the fact that you don't like the fact that the Bush Adminstration is following settled law, but those are the facts. But here is a challange for you Jukeboxgrad. Tell me how the facts as alleged on the Jose Padilla case differ from the facts of Haupt in Ex-Parte Qurin in a material way. Both are American citizens, both adhered to a foreign power, and both conspired with a foreign power plotting attacks on the United States or US interests abroad.

ATRGeek:
It is pretty typical for prosecutors in both military and civilian cases to drop some charges because the evidence they have doesn't rise to a level they feel comfortable charging. And it is pretty typical to come up with other related charges when they feel it is appropriate. Don't forget it was Khalid Sheik Mohammad that fingered Padilla, he might actually be guilty. He doesn't get a free pass because they caught him before he could kill anyone.

Snappers:
Military pay and benefits seems to be sufficent to attract and retain a volunteer army numerous enough and a high enough quality to meet enlistment and retention goals and keep morale high. Those are the primary measures that should be used. Even in an economy with 4% unemployment we are still attracting the manpower we need, when that is no longer the case we can adjust by boosting pay. It seems however that most soldiers enlist for non economic reasons, since the median family income of recruits is higher than the median US family income.
5.30.2007 2:24am
scote (mail):

Military pay and benefits seems to be sufficent to attract and retain a volunteer army numerous enough and a high enough quality to meet enlistment and retention goals and keep morale high

They would only seem that way to someone who has been willfully ignorant of the well publicized down grading of both goals and enlistment standards which have been implemented because it is getting harder and harder to recruit people.
5.30.2007 3:03am
ATRGeek:
Kazinski,

First, I agree it would be consistent with our treaty obligations and our legal customs to try those we accuse of violating the laws of war in ordinary military courts, subject to the ordinary procedural rules for such courts and the ordinary appeals process. Unfortunately, that is not what the MCA provides. Incidentally, I also agree that the preferred remedy for this situation is legislative, not judicial, and hopefully the new Congress will soon remedy this situation, and hopefully the President will not veto their remedy. As I stated above, I also blame the old Congress for creating this situation, although as I noted that does not diminish the Administration's share of blame.

As for Padilla, you are misrepresenting what happened. The original grounds for holding him as an illegal enemy combatant were completely, not partially, dropped, and an entirely new set of allegations were used to indict him. Notably, the new allegations would not have satisfied the courts which reviewed his original detention, as Michael Luttig of the Fourth Circuit made quite clear.

But I have noted that you have a tendency to misrepresent the facts and decisions in relevant cases as you contort yourself to defend the Administration's actions. And as I stated above, I blame people like you for the lawlessness of this Administration. So, shame on you.

And obviously, this will be my last post to you, since I do not think you are interested in an honest discussion. I do hope that at some point you develop a moral sense and stop defending the indefensible, but unfortunately that is merely a generic hope, since your conduct gives me little grounds to believe that you are on such a path.

By the way, I apologize if I violated this forum's rules by castigating Kazinski for his immorality. But these issues are bigger than this forum's rules, and it is well past time that in our public discourse we stop letting people like Kazinski and those he is defending shield themselves from appropriate criticism for their morally outrageous conduct on the grounds of decorum. Indeed, that is actually another of the many tricks they are consciously using to avoid appropriate sanctions for their efforts to undermine the moral foundations of this country.
5.30.2007 8:23am
jukeboxgrad (mail):
kaz: "The only way a court would get involved under both Quirin and MCA is if the illegal combatants (not defendents) wanted to appeal whether the charges were violations that required a trial by jury. That is not something the MCA can stop. … The MCA cannot close the courts in that limited set of circumstances."

You have a stunning track record of making things up, and you seem determined to persist in that obnoxious habit no matter how many times you're caught.

"here is a challange for you"

Here is a challenge for you. You're obviously using the secret text of MCA, the version distributed only to loyal Bushists, which explains the procedure by which detainees ("illegal combatants") gain access to our court system, in order "to appeal whether the charges were violations that required a trial by jury." You are suggesting that MCA provides for such access to the courts. Really? I can't find any such text in the version of MCA that's been distributed to us mere mortals.

MCA does not provide for access to courts. Under MCA, US citizens could be subject to arbitrary imprisonment. Why? Because the government could simply claim they don't believe you when you state you are a citizen, and you would have no access to a court to argue otherwise.

This was explained well by Rep. David Wu:

Speaker, I want to focus like a laser beam on the right of habeas corpus and the untoward effect of this legislation on habeas corpus. This is an ancient doctrine that has been with us since at least the days of Charles I. It has presented difficulties to many American Presidents from Jefferson to Lincoln to Grant to Roosevelt.

We have the power to do much in restricting habeas corpus; but we should do so very, very carefully because it is the protection from tyranny that our forebears sought in the Revolution.

Congress here is entering upon dangerous constitutional shoal waters, and it is, in my belief, unconstitutionally limiting access to habeas corpus. The courts have repeatedly ruled in a restricted fashion whenever Congress or the Presidency has restricted access to habeas corpus and each of us, not just the Supreme Court, but we in the Congress and those in the executive branch, we all take an oath to uphold the Constitution of the United States, and this act, by restricting habeas corpus, will not serve America well.

And by so restricting habeas corpus, this bill does not just apply to enemy aliens. It applies to all Americans because, while the provision on page 93 has the word "alien'' in it, the provision on page 61 does not have the word "alien'' in it.

Let us say that my wife, who is here in the gallery with us tonight, a sixth generation Oregonian, is walking by the friendly, local military base and is picked up as an unlawful enemy combatant. What is her recourse? She says, I am a U.S. citizen. That is a jurisdictional fact under this statute, and she will not have recourse to the courts? She can take it to Donald Rumsfeld, but she cannot take it across the street to an article 3 court.

This bill applies to every American, regardless of citizenship status.
5.30.2007 11:14am
Kazinski:
Wu is right in that it doesn't matter if she is an American Citizen, IF she is an enemy combattant. BUT she can contest whether the charges levied against her are offenses against the law of war. You don't seem to get it is the nature of the charges that matter, and control court access, not citizenship status. You don't seem to understand that Congress cannot pass legislation that curtails constitutional rights. Read Qurin, the court said it didn't matter if Haupt was a citizen, it only mattered whether he was an enemy belligerent, once it was determined that he was, then no right to trial by jury, or habeas. Same with Wu's hypothetical wife, once it is determined that she is an enemy belligerent (the only fact that is reviewable), covered by the laws of war, then she has no access to Article III courts. Qurin and MCA are hand and glove.

That is because MCA was written specifically to conform to the roadmap laid out by SCOTUS in Hamdi to build the statutory framework needed to create the Military Commissions sanctioned in Quirin. The three branches of government working together harmoneously.
5.30.2007 1:28pm
jukeboxgrad (mail):
kaz: "You don't seem to understand that Congress cannot pass legislation that curtails constitutional rights."

You don't seem to understand that Congress has passed legislation that curtails constitutional rights.

"Same with Wu's hypothetical wife, once it is determined that she is an enemy belligerent (the only fact that is reviewable), covered by the laws of war, then she has no access to Article III courts"

You don't seem to understand that MCA gives POTUS the power to unilaterally declare that "that she is an enemy belligerent," and therefore "has no access to Article III courts."

"the only fact that is reviewable"

Still waiting for you to point us to the invisible language in MCA which describes the procedute by which a detainee can gain access to a criminal court for the purpuse of reviewing their status as "an enemy belligerent."

It's obvious that you never read Joseph Heller.
5.30.2007 2:10pm
Kazinski:
Was Joseph Heller on the Supreme Court?

MCA doesn't have to say it because it is reviewable because the Supreme Court says its reviewable. No law exists in a vaccum.
5.30.2007 2:31pm
jukeboxgrad (mail):
kaz: "the Supreme Court says its reviewable"

I didn't realize the SC had made any rulings regarding MCA. More shocking secret information that is available only to you.

Until SC rules otherwise, MCA is law. According to MCA, any citizen can be detained, and there is no judicial recourse whatsoever for that detainee if the government simply decides to claim that they're an alien.

Simple question: imagine that a person is detained under MCA. The person claims they are a citizen. The government claims they are an alien. According to MCA, what procedure is followed to resolve this dispute?

The answer is that MCA provides no such procedure. If the government says you're an alien, too bad. No access to courts.
5.30.2007 5:27pm
Kazinski:
Jukeboxgrad,
You just don't seems to be able to understand, citizenship doesn't matter one way or another, what matters is conduct. If you are an enemy combatant, you will face the consequences of that conduct, whether or not you are a citizen.
5.30.2007 6:14pm
scote (mail):

You just don't seems to be able to understand, citizenship doesn't matter one way or another, what matters is conduct. If you are an enemy combatant, you will face the consequences of that conduct, whether or not you are a citizen.

Good grief. Just how fact-resistant are you?

I see the word "accused" doesn't even occur to you. You assume that anyone accused of being and Unlawful Enemy Combatant is guilty. But, point of fact, conduct doesn't matter in so much as accusation==guilt==possible permeant detention without charges.

For all practical purposes, only the opinion of the POTUS matters. If the MCA granted Habeus Corpus you would have a chance to contest the allegations of conduct, but the under the law as passed, and as implemented by the Administration, there is no right of appeal.
5.30.2007 7:49pm
ATRGeek:
As I have noted before, conditioning the right to petition for a writ of habeas corpus on the basis of the government's allegations about the facts of your case is like providing that if the government alleges that you have committed a crime, you do not have the right to a criminal trial. In other words, it is absurd.
5.31.2007 12:11am