Visions of Watergate Dancing in Their Heads

The New York Times is suing the Pentagon (subscription only) for acting as if there's a war on.

NEW YORK – The New York Times sued the Department of Defense on Monday, saying the government has refused to turn over records related to its domestic warrantless surveillance program. [SNIP]

The Times said a Dec. 16 letter to the Department of Defense requested all internal memos, e-mails and legal memoranda and opinions since Sept. 11, 2001, related to the National Security Agency spying program. The department is the parent agency of the NSA.

The newspaper said it asked for meeting logs, calendar items and notes related to discussions of the program, including meetings held by Vice President Dick Cheney and his staff with members of Congress and telecommunications executives. It also requested all complaints of abuse or possible violations in the operations of the program or the legal rationale behind it.

It's difficult to comment upon this story without using some sort of epithet.

Roger Simon thinks that it's some sort of ploy. He must certainly be correct because the NYT's lawyers couldn't possibly believe that they won't be laughed out of court.

The Big Media couldn't posssibly believe than any federal intelligence agency could be subject to its oversight and could be legally compelled to turn over TOP SECRET information to a Big Media entity (or any other uncleared persons). Nooo, they just have mind-blogglingly incompetent really uninformed lawyers who don't understand things like jurisdiction, intelligence, the classification process, etc. Yes, that's certainly it.

Because the alternative is even more frightening: the New York Times and its functionaries actually do know these things, but would rather permanently cripple the function of the NSA and all other US intelligence agencies rather than see President Bush win a victory over foe--even if that foe is pledged to kill us all.

See also:

Protein Wisdom
The Strata-Sphere
My Pet Jawa

(Thanks to Pajamas Media)

Comments

[lj]

[Has nothing to do with the post, Luther. ]

[Mescalero]

Just remember that Pinch Sulzberger's numbskulls at the Ole Gray "w---e" still view that obnoxious Pulitzer Prize to Stalin's mouthpiece, Walter Duranty, with reverance. Need I say more?

[Justin]

Good for the NYT! I'm thankful that we have a free and aggressive press (but I'm a crazy liberal, so take the comment as you will ;-)).

Do you know the legal basis for the request?

[DarkStar]

Are we at war, constitutionally? And if not, does the NYT have a good argument?

Just the brain nerves misfiring again...

[baldilocks]

The agrugent isn't the issue; jurisdiction and standing are.

[Casey Tompkins]

Darkstar: I believe that Professor Brainbridge (and perhaps Volokh) have cited certain court decisions which indicate that the congressional Authorization for the Use of Force (commonly abbreviated) AUF) has been deemed a legal declaration of war.

Justin, why do have the feeling that you would have gleefully trumpeted news about our code-breaking efforts against Japan and Germany during WW2, if you had found out?

Do you know that American papers found out about those efforts, and voluntarily censored themselves?

Do you not believe that we are both legally and practically at war with an inchoate movement known as "Islamofascism/Islamism?"

Do you not believe that revelation of Top Secret operations, and the details thereof, actively cripple our efforts against terrorist organizations?

Do you prefer outright war (as in Iraq) to behind-the-scenes operations wherein we can strangle their finances, abort their operations before they can commit, and capture or kill individual terrorists?

I have to say your reaction is in line with the more-deranged elements on the left, who will do just about anything just to get Bush, even if it means destroying high-value intel operations.

[babylonandon]

This is a counter-strike for what is coming.

The Justice department is preparing indictments on one or both of the two individuals who have been consistantly involved in leaking info to the media.

The media is moving to protect the sources of this info and because their continued deluge of bad information has helped them mightly to destroy everything the hated Bush has tried to do since he was elected.

The leading enemy of Bush in the media is the New York Times. They want him removed, they want him impeached and they would celebrate him being killed. They have allies in high places.

The two individuals who are in the sights of Justice also have these sentiments. One of the has his fortune tied directly to Saudi Arabia and therfore possibly to Osama bin Laden. The other has called our troops Nazi's. They are Senator Jay (EXXONMOBIL) Rockefeller and Dick "the Dirtbag" Durbin.

They are the enemies of everything American and traitors to the core.

[Tully]

Are we at war, constitutionally?

Yes, we are. An AUMF is the completely legal, functional, and Constitutional equivalent of a formal declaration of war. There is no difference (other than rhetorical) between the two.

Do you know the legal basis for the request?

FOIA. More here. I'd speculate that this is the NYT's pre-emptive counter-strike against the current investigations of their sources, who are facing indictments for leaking classified information. And for the NYT itself, which published it, knowing it was classified. They face the possibility of legal problems themselves for doing so, and they're fishing for defense material.

[justin]

Yes, we are. An AUMF is the completely legal, functional, and Constitutional equivalent of a formal declaration of war. There is no difference (other than rhetorical) between the two.

That's certainly debatable--any by debatable I don't mean I disagree with you, just that it's not entirely clear, although if pressed I would have to agree that it is the functional equivelant of a declaration of war.

If all the NYT is doing is making a FOIA request, that's no big deal, because nothing classified should be released. I think Tully is right about the NYT's reasons, although my take would have a little bit less of a negative subtext in that I think what the NYT did was commendable.

Casey--I had a response for you, but manners got the best of me and I decided to delete it. All I'll say is that you are exhibiting the annoying tendency of calling people who disagree with Bush traitors who do not understand we are at war. If you have an argument to make, please make it.

[Tully]

That's certainly debatable--any by debatable I don't mean I disagree with you, just that it's not entirely clear...

Can you name any other constitutional power that allows Congress to authorize the use of military force outside of American territory that might apply? If they're not authorizing UMF outside American borders under the "declaration of war" power, then they can't really authorize UMF at all. They have no other tool to justify it, no other authority to exercise.

Commendable or not (I'll skip the value judgement) if NYT staff broke the law, those responsible should be prosecuted. Freedom of the press is NOT freedom to ignore the law, break the law, nor to intentionally and actively facilitate the breaking of it. Though if they want to present a justification defense at trial, I'm sure we'll all get some amusement out of it.

[justin]

Can you name any other constitutional power that allows Congress to authorize the use of military force outside of American territory that might apply? No, but that's not the point of the debate--the point is whether there can be a lesser authorization not enumerated in the Constitution. Like I said, I tend to agree with you, but I think words matter, and when Congress "authorizes force" rather than "declares war", I would guess they are using those words for a reason.

Maybe there should be prosecution if a law was broken regarding the NYT leak, I'll have to wait for more facts to come out. The reason I say "maybe" is because there is a tension in the law between national security and the 1st amendment, and my instinct/bias is to usually come out on the side of the 1st amendment, but it depends on the circumstances.

Hey, does this mean the Administration is going to get serious about who possible compromised national security by outing a CIA agent?

[T-Steel]

Oh heck with all this legal talk and amendment verbage. The fact is that a major corporation is going on the offensive against the Defense Department. While I don't believe that our Defense Department should just run about unchecked, but The Ney York Times Company seems to testing how much they can get away with in court. Call me paranoid but a large corporation would like nothing more than to flex their muscles against a federal government entity to show their power.

[Julie]

Or they're counting on the *perception* that their request is reasonable (freedom of information, etc.) and that the act of denial will be seen as... an act of denial, a cover-up, an unwillingness to be open with the American people.

Because that impression can have power emotionally even for people who rationally understand that the request was out of line.

[Casey Tompkins]

Justin, I'd be truly delighted to see where I even used the word "traitor" in my last post, much less accused you of being one. I'd even settle for a genuine hint that I was thinking that.

Now, I did ask you several hard questions, none of which you answered. Perhaps that's what bothered you? I also remarked that your reaction was "in line with" the more-deranged anti-Bush elements, but I didn't say you were deranged, nor did I ascribe their motives to you. Perhaps you have become accustomed to seeing such accusations, and find them where they don't exist?

Your claim that the AUMF (as a declaration of war) is "debatable" is simply not true. Did you not read my post? There have already been legal rulings about that. Right now, legally, the AUMF constitues a declaration of war.

I recently found out that there are reasons why Congress hasn't issued an "official" declaration of war since WW2. Apparently Congress -in it's {cough] infinite wisdom established all sorts of special rules and laws right after WW2 which are activated in the event of a declaration of war. The motivation/expectation was that the next war would be another "world/total" war, and probably nuclear. So we would encounter all sorts of well-meant but unworkable laws, and it would get ugly, quickly. And you thought the PATRIOT ACT was bad... ;)

[Tully]

If you gotta start searching for unenumerated and previously undiscovered powers when Congress itself has asserted the war power clause as the basis for AUMF's you're past stretching, Justin. Really. This one's not even close. We don't need a formal declaration of war to actually be at war (both in law and reality), and the only basis for Congress to pre-approve military hostilities derives from the ART 1 war powers clause, or it simply doesn't exist. No in-betweens. If they're not exercising their war powers, they can't make the authorizations without encroaching on Article 2 war powers.

In any case, the issue was settled as far back as the Quasi-War and the first Barbary war. Hamilton is instructive there, and didn't mince words. "Our Constitution happily is not chargeable with so great an absurdity." We are AT war (legally) when the nation or its people or commerce or military are attacked, regardless of any declarations by Congress. It only takes one to wage war and make it a reality, and the one doesn't have to be us. Once we are at war, with or without any formal declarations or specific statutory authorizations from Congress, the President has war powers for at least the immediate term.

Now, the argument between the executive and Congress on whether or not the executive requires Congressional authorizations to use military force in certain situations is another one of those "powers" arguments, but that's not relevant in this case. That would be the debate about whether the War Powers Resolution is itself valid, or an unconstitutional encroachment. But neither branch went there this time. Instead, they followed the traditional forms, including invoking and following the forms of the War Powers Resolution.

As I said, the difference is rhetorical, not substantive. But if you can dredge up Hamilton's ghost, you can have fun arguing with him about it. Or just ask the professor of Constitutional Law who sits on the Senate Judiciary Committe, good ol' Joe Biden. (I already know his answer.)

[Justin]

Casey, you said:
Justin, why do have the feeling that you would have gleefully trumpeted news about our code-breaking efforts against Japan and Germany during WW2, if you had found out?

I took that as saying you thought I would gleefully give secrets in wartime to the enemy, which to me at least borders on treachory.

Casey, you are making ridiculous points that I'm not going to dignify with an answer.

Tully--I can see you like a good debate as much as I do, but I already said I ALMOST ENTIRELY AGREE WITH YOU (all caps intended to be funny, not rude). That being said, for the heck of it I'll post a link to an upcoming law review article that makes the point that it is debatable (although the real world consequences of that are almost nil--it's mainly an academic Con Law debate). Now, of course, you're going to make me read these arguments closely, which may lead me to believe it's not debatable at all ;-)

[Tully]

Heck, Justin, EVERYTHING'S debatable. Just not always realistically. :-)

But just for fun check out Jefferson, Hamilton, and the flap about executive war powers in the first Barbary War that led to the second Congressional AUMF (the first was for the Qausi-War). You'll enjoy it. Trust me. And it helps illuminate the age-old debate about war powers.

[DarkStar]

Darkstar: I believe that Professor Brainbridge (and perhaps Volokh) have cited certain court decisions which indicate that the congressional Authorization for the Use of Force (commonly abbreviated) AUF) has been deemed a legal declaration of war.

Yes and there are others who disagree. I happen to be one of them.

To me, if it doesn't say war, it wasn't a request for the declaration of war. And the reason why my brain fired on this is because the FOIA could easily be rejected if at war, but there are higher bars to reach when not at war.

[LFCF]

Tully; That is what makes the Left so Loveable. They can say “O.K. You can go into their country, bomb their buildings, sink their ships, shoot down their airplanes, kill their people, occupy their land. BUT… It is not like we declared War!”

[scott]

I'm not one for the releasing of secret information or the prevention of gathering secret information, but there has to be a way to oversee those in government who are collecting these secrets.

The other day an honest conservative thinker came up with what he called the "Hillary" test - he asked himself if he would trust "Hillary Clinton" with a particular practice and if he did not, then he should not trust anyone else either.

Now, I don't believe Hillary Clinton wants to see the destruction of the US or that the NY Times wants to see bush die as one poster commented, but we have to have a way to ensure that our government acts legally.

And sadly, with all that has been seen with the Bush Adminstration, they have not earned the "give them the benefit of the doubt" standard. To me, they have lost all credibility for such a standard.

[justin]

The other day an honest conservative thinker came up with what he called the "Hillary" test - he asked himself if he would trust "Hillary Clinton" with a particular practice and if he did not, then he should not trust anyone else either.

Well put. I've been trying to make the same point, but not so succicently.

Tully, I'll definitely check out the Barbary war flap--I love that kind of stuff. Although whether there really was a Barbary war is debatable ;-)

[Casey Tompkins]

Justin: oookay, I can see where you could read that sentance that way. I'll say that I didn't intend that as a "traitor" crack, but you do seem to be awfully happy about critical secrets being exposed by the New York Times. I'll be glad to apologize to you in that respect, as I never meant that sentance that way.

I'm puzzled by your absolute refusal to address my other points, such as the fact that the US courts have determined the AUMF as a legitimate declaration of war, as well as the questions in my original post.

I'll repeat those questions:

re: WW2 code-breaking efforts. Do you know that American papers found out about those efforts, and voluntarily censored themselves? (as opposed to the current Times efforts)

Do you not believe that we are both legally and practically at war with an inchoate movement known as "Islamofascism/Islamism?"

Do you not believe that revelation of Top Secret operations, and the details thereof, actively cripple our efforts against terrorist organizations?

Do you prefer outright war (as in Iraq) to behind-the-scenes operations wherein we can strangle their finances, abort their operations before they can commit, and capture or kill individual terrorists?

I ask these questions in the context of your statement "Good for the NYT!" An impartial observer would conclude that you are, in fact, rooting for the Times efforts to unveil yet even more of our country's covert operations, in the same way they exposed the now-infamous intercepts of international calls connected to known terrorists.

Now, if you consider these points to be "ridiculous," a decent respect for mankind obliges you to provide a rationale as to why. Or will you reply with a "because I say so!?" It's not the first time I've seen someone duck an argument they don't like because they don't have a valid response. :)

Darkstar replied "Darkstar: I believe that Professor Brainbridge (and perhaps Volokh) have cited certain court decisions which indicate that the congressional Authorization for the Use of Force (commonly abbreviated) AUF) has been deemed a legal declaration of war.

Yes and there are others who disagree. I happen to be one of them."

The difference is that you aren't a qualified jurist, and they are. That's why their opinions are precedents, and yours are just blog comments.

Dig, bro? :)

[Tully]

Justin, I for one appreciate your patience and forbearance in the face of a massive pile of straw men that don't address the one thing you actually said to kick off the avalanche of same.

[Tully]

Oh, and it is not required that there be any Congressional exercise of their inherent war powers for a state of war to legally and Constitutionally exist, and for the executive to have full use of their own war powers authority.

Hamilton debunked that claim back in 1801 when Jefferson made it, and SCOTUS has upheld Hamilton's reasonings on several occasions since, including the Port cases of the Civil War*.

Interestingly enough, back then President Jefferson was the one claiming that only Congress had the relevant offensive authority, and Congress claimed they did not need to authorize and approve the executive exercise of those offensive war authorities the President already possessed, as a de facto state of war already existed.

Rather than duke it out over the legalisms, Congress issued AUMF's to Jefferson under their war powers authority. Jefferson maintained his legal position through both terms, refusing to exercise offensive war powers without Congressional approval, and the AUMF tradition was born. Jefferson also began the tradition of "executive privilege" as regards communications between the Prez and his advisers.

[*--Which war, I note, the costliest in American history in both lives and money, was neither explicitly declared or authorized by Congress. Nor was our longest war, against the Apache Nation, which went on for 46 years.]