Desiring Power Over All Else

Which side are the Senate Democrats and the Big Media on? Is it the forces who would stand for freedom or those who would stand for tyranny? The evidence is piling up for the latter. Watch and note how our betters would play politics with World War Four using intelligence information (again) as the weapon.

From the AP via the New York Times:

WASHINGTON (AP) -- Facing angry criticism and challenges to his authority in Congress, President Bush on Saturday unapologetically defended his administration's right to conduct secret post-Sept. 11 spying in the United States as ''critical to saving American lives.''

One Democrat said Bush was acting more like a king than a democratically elected leader. But Bush said congressional leaders had been briefed on the operation more than a dozen times. That included Democrats as well as Republicans in the House and Senate, a GOP lawmaker said.

Often appearing angry in an eight-minute address, the president made clear he has no intention of halting his authorizations of the monitoring activities and said public disclosure of the program by the news media had endangered Americans.

The president should be angry that there are government officials who would leak classified activities which are designed to protect the citizens of the United States. I’m incredibly angry about it, especially since I know that any president is authorized to do what President Bush has done in this matter. That the editors of the Associated Press and the New York Times couldn’t be bothered to gain some knowledge on the subject doesn’t surprise me. That those who make policy on foreign and domestic matters for all of us couldn’t be bothered to read or would ignore the existence of Executive Order 12333 of December 4, 1981 is far more frightening.

2.3 Collection of Information. Agencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order [see below about who they are]. Those procedures shall permit collection, retention and dissemination of the following types of information: [SNIP]

(b) Information constituting foreign intelligence or counterintelligence, including such information concerning corporations or other commercial organizations. Collection within the United States of foreign intelligence not otherwise obtainable shall be undertaken by the FBI or, when significant foreign intelligence is sought, by other authorized agencies of the Intelligence Community provided that no foreign intelligence collection by such agencies may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons;

(c) Information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation;

More from the AP/NYT article:

Bush's willingness to publicly acknowledge a highly classified spying program was a stunning development for a president known to dislike disclosure of even the most mundane inner workings of his White House. Just a day earlier he had refused to talk about it.

This little piece of twisted “reportage” is just another example of how the Big Media does things when it comes to the actions of this president. Classified information is leaked to the press, the press publishes the information gleefully and when the president chooses not to comment on it, Big Media editors and op-ed writers lament the “secrecy” of the administration. But when the president decides to explain himself, the Big Media is “stunned” at his openness. Note how the writing attempts to make it seem as though President Bush is at fault for the uproar about the leak of classified information.

Since October 2001, the super-secret National Security Agency has eavesdropped on the international phone calls and e-mails of people inside the United States without court-approved warrants. Bush said steps like these would help fight terrorists like those who involved in the Sept. 11 plot.

According to the linked Executive Order, however, it isn't the courts who have to approve the type of eavesdropping specified, but the justice department (among others), meaning the AG. But why would the Big Media let facts get in the way of innuendo unfavorable to the president?

James Bamford, author of two books on the NSA, said the program could be problematic because it bypasses a special court set up by the 1978 Foreign Intelligence Surveillance Act to authorize eavesdropping on suspected terrorists.

''I didn't hear him specify any legal right, except his right as president, which in a democracy doesn't make much sense,'' Bamford said in an interview. ''Today, what Bush said is he went around the law, which is a violation of the law -- which is illegal.''

You didn’t, Mr. Bamford? Funny, I seem to recall thatthe president’s speech contained an acknowledgment of the exact legal right necessary for such a program:

The review includes approval by our nation's top legal officials, including the Attorney General and the Counsel to the President.

NYT/AP article again:

Susan Low Bloch, a professor of constitutional law at Georgetown University Law Center, said Bush was ''taking a hugely expansive interpretation of the Constitution and the president's powers under the Constitution.

But of course this president “went around the law” rather than getting approval from the proper authorities! How could it be otherwise for the president who would be king!

That the president actually mentions the AG approval, among others, but Bamford and Bloch miss it and the NYT and AP don’t bother to review the speech or the law is, again, ignorance or deception. I suppose, since the president doesn’t mention the National Security Council, the head of NSA (mentioned), the DNI or the DCI by name and refuses to tick off every aspect of a classified program, that it means that he really hasn't been checking with any of them. After all, that would be behavior constistent with that of the autocrat which Big Media and Senate Democrats keep trying to convince us that the president is.

That view was echoed by congressional Democrats.

''I tell you, he's President George Bush, not King George Bush. This is not the system of government we have and that we fought for,'' Sen. Russell Feingold, D-Wis., told The Associated Press.

Added Sen. Patrick Leahy, D-Vt.: ''The Bush administration seems to believe it is above the law.''

See? It's true because they say so;they're your betters and you couldn't possibly be smart enough to have some knowledge of the subject, know where to find the information or know someone who does know where to look. After all, there's no way in the Grand and Right Order of Things that you could know more than the Senate and the Big Media knows, right?

Perhaps Senators Feingold and Leahy know nothing about the appropriate law and missed all of the appropriate reviews—maybe they didn't/don’t have a ‘need-to-know’ this information or maybe they were out doing the peoples’ business for their respective states during every single review. (Maybe pigs can fly.) But if they know nothing about this program, what could possible be the purpose in getting out front of this latest parade to hurl epithets at the president? Oh, I forgot: these are the Senate Democrats Senators we’re talking about: any face time is good time. Forget I asked.

On the other hand, these good senators could be pretending that they know nothing about either the briefings or the executive order, which would be even more frightening than any ignorance of either or the usual senate narcissism. If such is the case, this is damning evidence that these senators would put partisan gain over national security. Of course, many of us on the right have been saying this for some time; still, every new piece of evidence seems to escalate in its level of shamelessness.

Bush defended the program as narrowly designed and used ''consistent with U.S. law and the Constitution.'' He said it is employed only to intercept the international communications of people inside the U.S. who have been determined to have ''a clear link'' to al-Qaida or related terrorist organizations.

Government officials have refused to provide details, including defining the standards used to establish such a link or saying how many people are being monitored.

The program is reviewed every 45 days, using fresh threat assessments, legal reviews, and information from previous activities under the program, the president said. Intelligence officials involved in the monitoring receive extensive training in civil liberties, he said.

Bush said leaders in Congress have been briefed more than a dozen times. Rep. Pete Hoekstra, R-Mich., told House Republicans that those informed were the top Republican and Democratic leaders of the House and Senate and of each chamber's intelligence committees. ''They've been through the whole thing,'' Hoekstra said.

If the president has authorized this classified program and it has been subject to proper approval and diligent review every forty-five days, one would think that the fine, upstanding members of the senate—some of whom fancy themselves to be so much smarter than the president--would think to ensure that the program they were reviewing was legal, legally implemented and reviewed within the proper scope. Do you think they did this? Actually, I do. So what’s this wannabee of a scandal about? Merely about a blind grab at power at the expense of national security.

In other news, the sun also rises.

(All emphasis mine in the quotes .)

MORE COMMENTARY:

Jeff Goldstein
Michelle Malkin
Stop the ACLU
Confederate Yankee:

Several decades in Club Fed is exactly what justice demands for those that would compromise America's national security concerns for partisan political vendettas.

Damn skippy, but noting the Sandy Berger precedent, I'm not holding my breath.

Comments

[DarkStar]

That's a nice piece, especially about the person or people who are spilling classified information. They should be in jail.

We will disagree about the legality issue of the situation if it happened as reported. It goes back to the last "discussion" concerning "The Wall".

[baldilocks]

Regarding "the Wall": flesh it out for me; or if you post about it, point me to it. Your take on things helps me think things out. Usually. ;-)

[DarkStar]

Let's ignore congress. That's background noise.

As far as I know, the Patriot Act has not changed the boundaries of where the NSA can deliberately do their work. They still can only target outside of the U.S.

From what I've read, one point was in the U.S., another point was outside of the U.S. For the NSA, that's still not a valid target.

The key here, from my understanding, is authorizing the NSA to deliberately target inside of the U.S.

If the Patriot Act didn't change the NSA's boundaries, then the President wrote an executive order that authorized the breaking of a law. That is not a valid executive order.

If I'm wrong, please show me where. I'm ignoring the other aspects of this, except for the legality.

[baldilocks]

To which EO are you referring? The Patriot Act?

According to the order I'm looking at (the one in this post from 1981), the authorization requires that of the agencies specified.

The only question is whether GWB had such to authorize the type of eavesdropping that we're discussing.

How does "the Wall" fit into this?

[DarkStar]

I'm referencing the executive order that authorized the NSA to go after a domestic target.

I mentioned "The Wall" because it was previously discussed on your blog. Basically, I was trying to make a point that the various 3 letter agencies have their boundaries set by law. Can an EO change a law? I didn't think that it could.

What's being written now is that the program helped stop some attacks. That's GREAT news.

There needs to be a full scale investigation of how this information became known. If the NYT article is correct, and it has been known for about 1 year, and the administration knew it has been known for about 1 year, then I wonder if there was no investigation started then.

Some people need to be taking a polygraph.

[baldilocks]

Is "the Wall" an EO or a law? It would seem as though it is--and that an EO is a law--though I am still not getting how "the Wall" relates to this particular matter. Please explain in like I'm a three year old. (Paraphrase of a line from "Philadelphia.")

From what I'm reading from EO 12333, this matter has been undertaken within the boundaries of same.

Perhaps a legal-eagle reading can answer the question as to whether an EO has the force of law. I've Googled it a bit, but my lack of legal training is a hindrance.

As for the leak, we are definitely in agreement there.

(For those reading in puzzlement, Darkstar and I are discussing this wall.

[Mike in Colorado]

Another well written and well thought out post.

It seems to me that the President has covered the bases well before issuing this order, especially by keeping the appropriate members of Congress informed. I think that there are the usual suspects in Congress who are unhappy that THEY (and their oversized egos) weren't informed, even though they aren't members of the appropriate committees. Another key item is that this order has garnered important information that may well have prevented further attacks on the US. If these efforts are stopped and another attack happens, just what do these people think will happen? Continued attacks will result in actions that will make this order pale in comparison.

[playah grrl]

Juliette, Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation's legality and oversight.
from Dafyyd.
Do you think those were NSA people?
I don't.
For one thing, they would known that was lawful collection, and for another, NSA don't tell people who they work for.
The NYT only implies they work for NSA. I think they were CIA, or Congress.
i can't even express how disgusted and infuriated i am at this.
i want heads on a pike.
what the hell is wrong with this country?

[Justin]

Since when is the President allowed to circumvent the law and the Constitution with an executive order? Remember, the AG works for the President, so just b/c he AG approves it, it doesn't make it legal. I'm quite shocked at how "conservatives" can simply shrug off this potential abuse of power. But I guess you all think Bush is above the law? But this is pretty much what I've come to expect from many Bush supporters, unfortnuately--torture? No big deal. President having the power to detain anyone he wants for as long as he wants? No problem.

[DarkStar]

"The Wall" is law, it's not an EO.

The FBI, by law, investigates spying cases for criminal prosecution.

The CIA is espionage and can work all over.

The NSA is international eavesdropping. By law, they can't go after U.S. citizens or entities on purpose.

I brought up "The Wall" because of the separation of concerns.

Here's where we went down the path before, because of Able Danger.

http://baldilocks.typepad.com/baldilocks/2005/08/placing_blame.html
http://baldilocks.typepad.com/baldilocks/2005/09/cover_up_doubtf.html
http://baldilocks.typepad.com/baldilocks/2005/08/able_danger_off.html

[DarkStar]

Just a post to clear up the bolding.

[teal marie]

The New York Times is little better than Al Jizzeera. Al J has Al Qada feeding it. The NYT has the DemLibs. Their objectives are identical: betrayal, defeat and submission.

BDS has eclipsed sanity in those infected. I'd pity them, but they feel so sorry for themselves any sorrow on my part is completely redundant. I wish them a successful suicide, pathetic Judases that they are.

[DarkStar]

Teal, the thing is, in this case, Bush seems to indicate that the NYT article is correct.

So, going from there, was it legal, yes or no? Next, who leaked the information? They leaked classified information and should be prosecuted to the fullest extent of the law.

[tully]

For those interested in the actual statutory basis of FISA itself, you can find it here. From what I've been able to determine from the very sketchy facts available, there is no publicly known factual basis for claims of illegality.

That doesn't mean you can't find it reprehensible, but if you're gonna claim illegality, better get some factual basis to back up the claims. Saying it looks funny doesn't cut it. Many things look funny, including Ted Kennedy in a Speedo.

The FISC has apparently been on board and informed throughout the entire process, as have the appropriate Democrats and Republicans on the House and Senate intel committees, as required under FISA. Both the FIS court and Senator Rockefeller apparently voiced concerns that resulted in clarified operating guidelines. If the NYT article can be believed (I know, that's a big if) all purely domestic operations have been done under warrant as required, communications originating overseas don't require warrant or findings, and the area of contention for "warrantless" eavesdropping appears to be international communications originating with persons in the US. (Emails and phone calls originating in America destined to overseas recipients.)

Without more factual details no illegality is readily apparent (other than the leaking of the program itself). For particular details on who they can go after domestically, check the definitions in 1801. The areas of latitude may be broader than you think. The biggest area of gray I see there is in the differences and intersections between "U.S. persons" and "any person" and "agents of foreign powers" and how they can be differently treated under the law. Broadly speaking, it appears to my non-attorney mind that it's possible to be an "agent of a foreign power" and still be a "U.S. person." Agents and non-U.S. persons fall under different standards than do citizens and permanent (legal) U.S. residents.

[Kevin]

The Foriegn Information Security Act clearly spells out the goverments ability to tap communications in these cases. this is no secret and never has been, this false indignation of the president is a smokescreen. The question is can the president execute these taps without a warrant from the judiciary. I believe it was Benjamin Franklin that said "
They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

[teal marie]

Darkstar, I dunno who leaked. NYT is concealing the cowardly culprits. I suspect Mad Madam Hillary and Commie Kerry. I do like your idea about the polygraph. I would like to see portable lie detectors installed like backpacks on the perfidious traitors.
Bush, God bless him, is far too honorable to do anything illegal.

[DarkStar]

Bush, God bless him, is far too honorable to do anything illegal.

He's a politician on the national level. By default, that means he's not honorable.

[torchy]

::Glares at Darkstar::

[teal marie]

Darkstar, I don't think so. I think Bush is a true Christian, a real good man, and that's what guides him, not politics. We got lucky with this one. Blessed even. I hope you can see that for yourself in time. It's good to be skeptical, but it's a shame when a good man goes unrecognized.
For instance, it would be a shame, at least to me, if I didn't recognize that you are a good man. It's taken awhile, but I do see it. Am I mistaken?

(((Hi, Torch!)))

[justin]

For those interested in the actual statutory basis of FISA itself, you can find it here. From what I've been able to determine from the very sketchy facts available, there is no publicly known factual basis for claims of illegality.

Tully, unless I'm misreading the statute, it gives the President the authorization to tap communications between foreign powers or someone/thing under the control of a foreign power. I don't think the statute gives the President as much lattitude as you are reading into it, because to read "agent of a foreign power" in anything but its narrowest sense would make the statute unconstitutional (i.e., prohibition against warrantless searches). I don't think that even someone who is a member of an international terrorist organization could fall under that definition, but I suppose they could in certain circumstances. So, if a US citizen is planning a terrorist attack, and it in touch with international terrorist group, that would not qualify that person as an agent of a foreign power.

I'm not sure of all the details of this yet, but I just find it odd that conservatives aren't more troubled by this. True conservatism should be about a check on power--that's why true conservatives do not like activist courts--but I've seen conservatives jumping to the defense of the President pretty quickly. Isn't anyone on the right here troubled by this?

But then again, Teal Marie says things like:

I wish them a successful suicide, pathetic Judases that they are.

So Bush is Jesus and anyone that portrays him is Judas?

Baldilocks--There is a lot of debate in legal cirles over the legal force of executive orders, so you're right to be a bit confused. Basically, an executive order has the force of law for matters over which the executive has control (kind of circular, I know). So, a president can de-segregate the armed services by an executive order, but he can't seize steel mills during war time to help the war effort. In this case, an executive order would not cure a Constitutional violation, nor would it cure a breach of a statute. So, the Presidnet cannot, for example, legally issue an executive order authorizing the FBI to arrest people who burn the American flag

[tully]

Justin, there's more than FISA involved--there's also executive orders and the constitutional war powers of the executive and other constitutional executive authorities which can not be impinged by statute. Congress can't legislate away the constitutional powers of another branch.

But as regards FISA, the section involving 1802 "warrantless" surveillance appears confined to domestic surveillance of "US persons". That's obviously been giving the FISA court a workout, as the number of warrants approved has skyrocketed since 9-11. Where FISA hits the international tapping quagmire of muddy law is where the targeted party is a "US person" (a classification that completely excludes anyone but citizens and legal permanent residents) or where the intercept of international communications involving US persons is done entirely on US soil. [1801(f)1-2] If those don't apply, FISA doesn't apply.

And if the targeted person is NOT a US person, if the intercept is not done on US soil, and the communications are international, they're entirely fair game. FISA doesn't even apply, and it's a completely legitimate exercise of the executive's foreign intellignece gathering powers. So if they're tapping Osama's phone and email in Burkahstan using a satellite over India, and Joe Citizen gives Osama a jingle or drops him a line, it's not only a completely legal intercept, it's usable in US courts as evidence and can also constitute legitimate probable cause for FISA warrants and surveillances.

Better go re-read those definitions in 1801 as to who is a foreign power or agent thereof, and what is "electronic surveillance" for purposes of the act. It's broader than you think for the first and narrower for the second. And there's a relevant court decision pre-dating 9-11 about the "foreign power" and "agent" status of AQ. [U.S. v. Bin Laden] The court ruled that AQ is a foreign power under 1801(a-b), and those aiding and abetting AQ are agents thereof. So "US persons" can indeed be "agents of foreign powers" outside the self-contained domestic 1802 context. And they can likely move into "agent" status within the US for 1802 purposes if there is probable cause to believe they are violating or about to violate US laws.

Step past FISA into the areas it doesn't cover, and war powers and executive authority come into play. Unless you have a degree in Constitutional law you probably don't wanna go there. I know I don't. That's been hotly debated since before the ink dried in 1789.

[Brad Johnson]

I'm convinced that the Liberal Media runs the democrat politicians. They are pulling the Dem pols strings.

They clearly are trying to ride defeat in the war on terror back into power. That is their strategy for a better America!?????

The answer to the unasked question: YES they are insane!

[justin]

Justin, there's more than FISA involved--there's also executive orders and the constitutional war powers of the executive and other constitutional executive authorities which can not be impinged by statute. Congress can't legislate away the constitutional powers of another branch.

To reiterate my post on another thread--it is very troubling when the president's war powers are used as a basis for Constitutional violations. That logic basically means that the President can do anything he wants in a time of war, as long as it has some tangential relationship to security. And for national security reasons, he wouldn't really even have to say what it is he is doing, or how it is related to national security.

[DarkStar]

I don't really want to go into this pit, but the president's war powers are immense.

The issue there is, was war declared? I don't think it was.

[DarkStar]

Darkstar, I don't think so. I think Bush is a true Christian, a real good man, and that's what guides him, not politics.

1. Christians aren't perfect, just forgiven.

2. When Bush was first running for president, a death penalty case in Texas was making its way to the Supreme Court. The lawyer for someone convicted of a crime and sentenced to death had fallen asleep during the trial. The man's lawyers were succesful in arguing that the convicted man did not get competent representation. The state of Texas argued that the law guarentees representation, not good representation. When Texas lost in one of the higher courts, Bush refused to state whether it was a right or wrong decision. Texas appealed to the Supreme Court and lost. Bush refused to comment.

A man faces the death penalty, maybe because his lawyer fell asleep during the trial. G. W. Bush, a "moral man", refuses to take a stand either way?

3. G. W. Bush, a "moral man", appeared at a university that is known for it's bigotry towards Cathlics. G. W. Bush, a "moral man", who later has said that Islam is a religion of peace, refused to condemn the anti-Catholic statements of the school administration.

[MikeW]

Hi, new to this forum, but I really appreciate the pretty civil way in which this discussion is taking place. I think it is a very interesting question indeed. As regards the question about Congress declaring war, at least a couple of points could be made. One is that if (given that)Congress didn't specifically state in a resolution that our country was in a state of war with the enemy forces in Vietnam, Korea, Southwest Asia, Afghanistan, and Iraq, then our country has never been at war since WW II. That is patently false, as my father (2 wars), my older brother, and my younger brother can all attest that they were engaged in war. I too have been place in harm's way by our country (vis a vis the National Command Authority). Regardless of how you couch it, COngress' authorization to maintain deployment of troops under hostile fire in those wars beyond any Presidential callup or commitment certainly could be construed to be de facto declarations of war.

Second, I found an interesting point on another blog that referred to Senator Joe Biden in a Q&A session following an address to the Council on Foreign Relations on October 22, 2001. Here's the link to the transcript of that session. The "M" abbreviation is for the session monitor ( a former Congressman). "JB" is Senator Biden." Actually, the entire session is interesting, by the way.

http://biden.senate.gov/newsroom/details.cfm?id=229598&&

M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged approach to the problems we face. My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)

JB: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President.

I think this is a very telling point as it pertains to the definitive issue of this country, through the AUMF, being in a state of war. Given that, it also brings to the forefront the issues associated with the Commander in Chief's Constitutional authority to prosecute such a war and engage and use the necessary elements to successfully accomplish that mission.

As I said, I find this a very intriguing issue and appreciate the civil discourse here. Let's keep it that way, please, for everybody's sake.