Monthly Archives: December 2005

December 22, 2005 — John Hinderaker

On the Legality of the NSA Electronic Intercept Program

It has been widely suggested that the NSA electronic intercept program that has been carried out by the Bush administration for the last three years is, or may be, illegal. The New York Times and other media outlets have implied, without saying outright, that the program is unconstitutional or otherwise improper. The Democrats have picked the ball up and run with it; the Democratic National Committee sent out an email »
December 22, 2005 — Paul Mirengoff

The twilight zone

In his famous concurring opinion in Youngstown Sheet & Tube, the case involving President Truman’s seizure of steel mills pursuant to his executive power during war time, Justice Jackson identified three categories of presidential exercise of power: 1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum . . . . 2. When the President acts in absence of either »
December 22, 2005 — Scott Johnson

Meet the new boss, take 2

In the Wall Street Journal Europe, Tom Gross takes up the issues I tried to raise regarding the Palestinan Authority in my Standard column “Meet the new boss…” Gross’s column is “Yasser Abbas” (via the link provided by Bennett Ruda). Gross writes: On the very day that five Israelis were murdered and over 60 injured outside a shopping mall in the coastal city of Netanya earlier this month, the official »
December 22, 2005 — Scott Johnson

Hello yellow brick road

The Washington Post story on the planned briefing of the FISA court continues the New York Times story on the NSA surveillance program authorized by the president: “Judges on surveillance court to be briefed on spy program.” Confidential intelligence sources stoke the fire. A FISA judge bravely speaking on condition of anonymity suggests that the FISA judges might consider disbanding the court. Lions and tigers and bears! Oh, my! The »
December 21, 2005 — John Hinderaker

Republicans Rolled Again

Oil drilling in ANWR is dead for another session, as the Republican leadership in the Senate couldn’t break the Dems’ filibuster of the defense appropriations bill. The Democrats were willing to shut down the nation’s defense rather than give up their pretense that ANWR drilling would somehow harm the environment. Their position was untenable, but the Republicans blinked. In another defeat, the Republican leaders had to agree to a six-month »
December 21, 2005 — Paul Mirengoff

NSA surveillance — the state of the legal debate

I’m still trying to reach firm conclusions on the legal issues surrounding President Bush’s decision to have the NSA conduct, without court approval, electronic surveillance of communications between foreign terrorists and Americans (who might also be terrorists). I’ve reached the firm conclusion that the Fourth Amendment does not blanketly prohibit search searches. As John has noted, the Fourth Amendment prohibits unreasonable searches, which is not the same thing as searches »
December 21, 2005 — John Hinderaker

A Colloquy With the Times

Reporter Eric Lichtblau of the New York Times responded to the email I sent earlier today; we had the following exchange. Me to Lichtblau: Mr. Lichtblau, in your reporting in the Times you appear to have tried to create the impression that the NSA’s overseas intercept program is, or may be, illegal. I believe that position is foreclosed by all applicable federal court precedents. I assume, for example, that you »
December 21, 2005 — John Hinderaker

It’s Legal

John Schmidt, associate attorney general of the United States in the Clinton administration, superbly explains why the NSA intercept program is legal under all authorities and precedents: President Bush’s post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents. In the Supreme Court’s »
December 21, 2005 — Paul Mirengoff

Judge Posner speaks

The brilliant Judge Richard Posner, author of the book Preventing Surprise Attacks (among many other outstanding works), takes to the pages of the Washington Post to argue that the NSA surveillance program is no serious threat to our civil liberties. Moreover, according to Posner, the NSA program is part of an attempt to fill gaps in our defenses against domestic terrorism. Posner finds it “no surprise that gaps in domestic »
December 21, 2005 — Paul Mirengoff

The judge who quit the FISA court

The lead story in today’s Washington Post concerns the resignation of Judge James Robertson from the FISA court. Judge Robertson didn’t explain why he resigned but, according to the Post, “two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court’s work.” Judge Robertson should be »
December 21, 2005 — John Hinderaker

Senator Roberts Responds

Yesterday there were news reports about Senator Jay Rockefeller, who pulled a 2003 letter to Dick Cheney out of the vault. In that hitherto-secret correspondence, Rockefeller expressed “concerns” about the NSA intercept program. This morning, Senator Pat Roberts, Chairman of the Senate Intelligence Committee, responded: “I have no recollection of Senator Rockefeller objecting to the program at the many briefings he and I attended together,” Mr. Roberts said. “In fact, »
December 21, 2005 — John Hinderaker

The Times Continues Its Attack…

…on the Bush administration over the NSA intercept program, in two articles in today’s paper. The first, which I linked to last night, is “Cheney Defends Eavesdropping Without Warrants”. The second is evidently an effort to shore up the Times’ claim that the NSA program is illegal; the paper’s reporters went back to its anonymous leakers and asked them about President Bush’s explanation that the program involves only international communications. »
December 21, 2005 — Scott Johnson

Silence of the asses

Max Boot comments on the media’s silence over the criminal leak of the highly classified information reported in the New York Times NSA story: “‘Plame platoon’ is AWOL on new leaks.” Referring to the string of intelligence leaks that seem to culminate in the NSA story, Boot writes: Most of these are highly classified programs whose revelation could provide real aid to our enemies — far more aid than revealing »
December 21, 2005 — Scott Johnson

Planet of the Mapes

Readers David Jacobson and Jon Longerbone have written to comment on the FR and FV suffixes appended to the applicable service number in bona fide Guard documents discussed by Colonel William Campenni here yesterday. Jacobson points out that the suffixes distinguish between Reserve commission and Regular commission as an officer, not between reserve duty and active duty. Reserve commissions were given to ROTC and OTS officers, while regular commissions were »
December 21, 2005 — Scott Johnson

A word from Bill Otis

Yesterday John wrote about the legality of the NSA eavesdropping program in here. The case quoted by John discussed the 1980 Truong case. Former federal prosecutor Bill Otis (and friend of Paul Mirengoff) worked on the Truong case and writes: As you may have seen if you read the list of counsel in the Truong case, I was one of the government’s lawyers. Although our months-long warrantless wiretap was conducted »
December 20, 2005 — John Hinderaker

New York Times vs. History and the Law

It is quite remarkable that the New York Times has launched a campaign to persuade the American people that the President does not have the power to order warrantless electronic intercepts for national security purposes. No court, as far as I have been able to determine, has ever so ruled. As noted below, the federal courts have consistently held the precise opposite of the position urged by the Times, as »
December 20, 2005 — Paul Mirengoff

Another content-free effort from E.J. Dionne

E.J. Dionne proclaims that “liberty and democracy were triumphant last week” because the filibuster against the Patriot Act succeeded. Dionne fails to show why this was a victory for liberty — his substance-free column does not even to attempt to argue that the Patriot Act poses a meaningful threat to liberty. And it’s difficult to see how this filibuster represents a victory for democracy. A majority of Senators wanted to »