Above The Law

by hilzoy

From the Washington Post: Alberto Gonzales sent a letter to Arlen Specter clarifying his testimony about the NSA program. Several points about it are interesting, though not in a good way. First, Gonzales repeatedly goes out of his way to make it clear that he is only talking about the particular NSA program that the President has confirmed (which he calls the 'Terrorist Surveillance Program'.) He does this in ways that strongly suggest that there are other surveillance programs that don't conform to FISA's normal requirements. For example, on p. 3 of the letter, Gonzales is answering a question by Russell Feingold, who asks whether there are any other surveillance programs that would, on Gonzales' view, be illegal without the authorization for the use of force in Afghanistan, and Gonzales answers:

"I am not in a position to provide information here concerning any other intelligence activities beyond the Terrorist Surveillance Program."

And from p. 4:

"(I)n all of my testimony at the hearing I addressed -- with limited exceptions -- only the legal underpinnings of the Terrorist Surveillance Program, as defined above. I did not and could not address operational aspects of the Program or any other classified intelligence activities. So, for example, when I testified in response to questions from Senator Leahy, 'Sir, I have tried to outline for you what the President has authorized, and that is all that he has authorized', Tr. at 53, I was confining my remarks to the Terrorist Surveillance Program as described by the President".

Similar quotes sprinkled throughout the letter. And, as the Post says, in making them, Gonzales "appeared to suggest yesterday that the Bush administration's warrantless domestic surveillance operations may extend beyond the outlines that the president acknowledged in mid-December."

Glenn Greenwald draws the following conclusion:

"That the Administration is confining its statements only to the "Terrorist Surveillance Program" is not a new revelation, but what is critically important here is how Gonzales in his letter defines the scope of the "Terrorist Surveillance Program." He defines it as follows:

"interception by the NSA of the contents of the communications in which one party is outside of the United States where there are reasonable grounds to believe that at least one party to the communications is a member or agent of Al Qaeda or an affiliated terrorist organization ("the Terrorist Surveillance Program")."

Thus, any eavesdropping of communications which: (a) are between a person in the U.S. and someone in another country and (b) involve someone for which there is reasonable grounds to believe they are an Al Qaeda agent, are, by definition, part of "the Terrorist Surveillance Program." That means that any warrantless eavesdropping outside of this Program involves intercepting communications that either (a) are entirely domestic, and/or (b) do not require reasonable grounds for believing a party to the call is an Al Qaeda agent."

I'm not sure I agree. What Gonzales says is consistent with there being another program involving purely domestic surveillance, or surveillance of people not affiliated with al Qaeda. But there are other possibilities. It might not involve collection by the NSA. More importantly, it might not involve the interception of the contents of communications. It might, for instance, involve warrantless physical searches, burglaries, or planting listening devices (depending on whether one thinks that planting a hidden microphone involves "intercepting" something; in any case, this would probably not be done by the NSA, and so would not be part of this program.) There are, I think, a lot of possibilities, and given both this administration's track record and the fact that Gonzales' disclaimers consistently refer to 'intelligence activities', not to wiretapping or electronic surveillance more specifically, I'm reluctant to rule any of them out.

The second interesting point concerns the legal rationale for the program. From the Post:

"On Feb. 6, Gonzales testified that the Justice Department considered the use-of-force vote as a legal green light for the wiretapping "before the program actually commenced."

But in yesterday's letter, he wrote, "these statements may give the misimpression that the Department's legal analysis has been static over time."

Fein said the letter seems to suggest that the Justice Department actually embraced the use-of-force argument some time later, prompting Gonzales to write that the legal justification "has evolved over time."

One government source who has been briefed on the issue confirmed yesterday that the administration believed from the beginning that the president had the constitutional authority to order the eavesdropping, and only more recently added the force resolution argument as a legal justification."

This is significant. The claim that the AUMF, a statute, constitutes the sort of waiver of FISA's requirements for which FISA itself provides allows the administration to claim that the NSA program is consistent with FISA, and thus with existing law. If it believed that the program was legal even in the absence of such a statute, that means that it believes that the President's constitutional authority allows him to disregard existing law, even when that law clearly and explicitly prohibits what he is doing. He can, on this view, do whatever he wants, so long as it in some way involves 'war powers', and Congress and the Courts be damned. That is an extraordinary position, and one that should alarm liberals and conservatives alike, since it basically amounts to the claim that in wartime, or even "war"-time, the President is above the law.

***

Russell Feingold recently said:

“It’s up to Congress, whether Congress has the courage to stand up to an extreme assertion of executive power.” (...)

He added, “We have to address the fact that the president has broken the law.”

Feingold is right. And this should not be a partisan matter, since the Constitution and the rule of law are more important than either party. There was a time when members of Congress of both parties understood this. From Wikipedia:

"In August, the previously unknown tape from June 23, 1972 was released. Recorded only a few days after the break-in, it documented Nixon and Haldeman formulating a plan to block investigations by having the CIA claim to the FBI (falsely) that national security was involved. The tape was referred to as a "smoking gun." With this last piece of evidence, Nixon's few remaining supporters deserted him. The ten congressmen who had voted against all three Articles of Impeachment in committee announced that they would all support impeachment when the vote was taken in the full House.

Nixon's support in the Senate was weak as well. After being told by key Republican Senators that enough votes existed to convict him, Nixon decided to resign."

Watergate was a disaster for the Republican party, and both the Republicans who were prepared to vote for impeachment and the Republican Senators who told Nixon he didn't have the votes to avoid impeachment knew it. They could have come up with some fascinating story about how the President's war powers allowed him to obstruct justice. (Remember, we were at war in 1972.) They could have simply acquiesced in his lawbreaking, and pretended that it was no big deal. But they knew better, and they were better people than that. They put their country above their party, and they were right to do it.

Now we have a President who not only breaks the law, but proudly asserts his right to break the law whenever he wants, in secret, without telling anyone, and with no check on his power. This is more dangerous than Watergate. If our representatives are up to their jobs, as they were in 1973, they will do something about it. I'll be watching.

Comments

[cleek]

in wartime, or even "war"-time, the President is above the law.

it just struck me (and i'm sure the fact that it took me so long proves just how slow i am) : since they're basing these actions on the claim that we're "at war", their common attack that "some people want to treat tWoT as a law enforcement issue" is actually at least partially a defense - they're not only trying to paint their opponents as soft, they're trying to give themselves a rhetorical foundation for claiming their "wartime" powers. after all, if the people, we, didn't accept their claim that we're at war, they'd have a hard[er] time convincing us that these actions were justified.

the scheme has obviously worked - at least on the members of Congress.

[Tim]

If our representatives are up to their jobs, as they were in 1973, they will do something about it. I'll be watching.

Somehow I cannot keep this worthy thought and the images of Arlen Spector and Joe Lieberman in my brain simultaneously. A personal failing, no doubt.

[Slartibartfast]

I am not in a position to provide information here concerning any other intelligence activities beyond the Terrorist Surveillance Program.

Alternative interpretation: I am not authorized to discuss anything outside of the TSP with you, period.

There are, I think, a lot of possibilities, and given both this administration's track record and the fact that Gonzales' disclaimers consistently refer to 'intelligence activities', not to wiretapping or electronic surveillance more specifically, I'm reluctant to rule any of them out.

Or, possibly, he's calling them "intelligence activities" as an alternative to both the completely inaccurate "wiretapping" and something more accurate but rather more descriptive than they're comfortable with.

He added, “We have to address the fact that the president has broken the law.”

Well, if he's confident enough to come right out and say it, then he ought to move to impeach. Shouldn't he?

[zmulls]

Feingold can't impeach. He's a Senator. He can only vote on articles of impeachment passed by the itty-bitty congresspeople.

[blogbudsman]

"They put their country above their party, and they were right to do it."

Now there's an interesting concept.

[Steve]

Even though Gonzales was only testifying about "this particular program," which supposedly monitors only international communications, the issue of whether there is another program that monitors purely domestic communications without a warrant is not a completely open question.

Gonzales has repeatedly said that he can't opine on whether purely domestic surveillance can be conducted without a warrant because the DOJ would have to analyze that legal issue in depth. This puts him in a bit of a box, because it means IF purely domestic communications are being monitored, either (1) the DOJ has not conducted any legal analysis of whether those surveillance activities are legal, or (2) they have already conducted such a legal analysis and Gonzales lied.

Now, maybe there is no warrantless monitoring of domestic communications, in which case Gonzales has nothing to worry about. But that's not what today's letter suggests. Instead, the letter tries to back away from Gonzales' very clear testimony that no legal analysis of domestic surveillance has been conducted, claiming that "oh, I was only talking about whether we conducted such an analysis as part of that January 19 DOJ opinion you've all seen."

This is truly shameless stuff.

[votermom]

Come now, you're not saying the Atty General would lie under oath? Oh, wait a minut e... [/snark]

I have no faith in Specter doing the right thing in this investigation. He's been nothing but bluster. *boohiss*

[Carl Kolchak]

One name never mentioned in discussions of terrorism and homeland security is that of Howard Coble, the Republican who chairs the House Judiciary subcommittee on crime, terrorism and homeland security. Coble's subcommittee needs to be doing its oversight duty. Call his office at 202.225.3065 and tell him so.

[john miller]

Hilzoy, the answer to what they will do, at least those that hold power is already out there.

From the AP on 2/16
"Senate Intelligence Chairman Pat Roberts said Thursday he has worked out an agreement with the White House to change U.S. law regarding the National Security Agency’s warrantless surveillance program and provide more information about it to Congress.

“We are trying to get some movement, and we have a clear indication of that movement,” Roberts, R-Kan., said.

Without offering specifics, Roberts said the agreement with the White House provides “a fix” to the Foreign Intelligence Surveillance Act and offers more briefings to the Senate Intelligence Committee."

The response, as far as I can tell, is a form of admission that we know Bush broke the law, but we will change the law so it no longer qualifies as breaking the law, and then everybody is happy.

Of course, Bush and Gonzalez say that FISA is irrelevant anyway.

[st]

Slart -
Regardless of other interpretative issues, the conversation stands thus:

Feingold: Did the president authorize any programs besides the TSP?

Gonzalez: the TSP is all [the President] has authorized.

Gonzalez (later): Of course, that remark is limited to the TSP.

All else aside, it can't be denied that (a) Gonzales hasn't answered the question, and (b) he chose not to answer it in a really slippery way, by giving Feingold what appeared to be a straight answer while he was on the hot seat, and then rendering that answer meaningless from the safety of his office. If your alternative interpretation were true, there was no reason for him not to say that to Feingold directly, rather than play this game.

[Slartibartfast]

Gonzalez: the TSP is all [the President] has authorized.

Where/when did he say this?

[Slartibartfast]

Ok, I'm seeing it now. The "that" that Gonzales is referring to...what do you think it is?

[Detlef]

Slartibartfast,

Just a question.
Did the TSP (Terrorist Surveillance Program) follow FISA procedures?
If no, why not?

Who is the one making laws and regulations?
The legislative (Congress) or the President (the executive)?

'Sir, I have tried to outline for you what the President has authorized, and that is all that he has authorized', Tr. at 53, I was confining my remarks to the Terrorist Surveillance Program as described by the President".

If he was trying to outline what "the President has authorized, and that is all that he has authorized" then why he was "confining his remarks to the Terrorist Surveillance Program as described by the President"?

If that´s the only program "the President has authorized" then why was he "confining his remarks" at all?

Say simply that´s the only program we´ve got and that´s it. Unless there might be other programs?

[Happy Jack]

You might want to question why he stressed contents, as opposed to signaling information or identifiers. It might offer a clue as to what they're up to.

Maybe Gary Farber has some information along these lines.

[ThirdGorchBro]

Hilzoy, without disagreeing with the substance of your argument, I feel it necessary to point out the big difference between Watergate and the NSA program - Nixon was wiretapping a major US political party. Members of Congress who could care less about the wiretapping of anti-war groups and MLK drew the line at bugging the offices of the DNC.

We don't know who the NSA is wiretapping now, but unless it comes out that they were listening in on Howard Dean, it is unlikely that Bush will ever be impeached.

The key point being, of course, that we don't know who is being wiretapped. It shames me to admit that I would not be surprised if we eventually learn that Democrats are being bugged. It shames me even more that the party that professes a love of small government seems blithely indifferent to Bush's new interpretation of the Constitution.

[hilzoy]

Slarti: it helps to reread some of the hearing transcripts. I put together some of Gonzales' replies to questions about other programs here (scroll down past the three asterisks). The full transcript is here; Feingold's question is near the bottom of Part 3.

[hilzoy]

And 3GB: I agree completely. -- Democrats are supposed to be in favor of "big government", but to the extent' that's more than a caricature, for most of us, and certainly for me, it has always been about e.g. supporting national health insurance of some kind, not giving the government unchecked power to break the law, spy on its citizens, and so forth. It's nice, law-abiding programs, not powers more appropriate to a dictator.

And I'd feel this way whichever party did it. For what it's worth.

[Detlef]

Maybe we just have to wait for clarification from the White House.

Just like in this case:
http://tinyurl.com/9gx78

Apparently as a rejoinder to the new video, the White House yesterday suddenly sent around a transcript that it previously said didn't exist, from a conference call on the following day.

Now just let us all meditate on the reality "yesterday" when that transcript didn´t exist and on the new reality today when that transcript surfaced.

Reality truly is something that can change in a matter of minutes or hours. Maybe following the teaching of Buddha would be advisable for the followers of President Bush. You know, reality is changing, only the teachings of the President are true.
Or something like that...

[Frank Wilhoit]

The comparison with Watergate is instructive, but for a different reason. What it actually illustrates is the First Time Principle, which states that any outrage is only outrageous the first time it happens. The second and subsequent times, ho hum. If Richard Nixon had gone to prison and broken some stone, then maybe it would have taken longer to come round again; but he was pardoned, and to forgive is to endorse.

Note those last five words and note them well, for they are the most important words in the English language:

To forgive is to endorse.

[Donald Johnson]

"To forgive is to endorse" isn't true in general. But in American politics you're probably right, Frank.

[Katherine]

Somewhat OT, but--Feingold's just endlessly quotable these days, isn't he? For instance:

"If Democrats can't stand up on something like this when the president's poll numbers are 34 percent, I just wonder how much right we have to govern this country," Feingold said in an interview Tuesday. "You've got to show people you believe in something, not just that you're gaming the issues."

At this point the PATRIOT Act stuff endears him to me less for the political courage of it--Wisconsin voters obviously don't mind & this is only going to help in the 2008 primaries--than for the attention span he's shown. On that, the NSA thing--he acts like a Senator who cares about an issue, who doesn't drop it the moment it falls from the headlines. So many of the others act like six year olds playing soccer: the NSA thing is so two weeks ago, the Dubai port deal is the in thing now.

[bob mcmanus]

Just read, via DKos and Orin Kerr the decision & opinions in Hamdi vs Rumsfeld. SCOTUS vacated and remanded.

Although SCOTUS had decided that Hamdi had been denied due process etc, and that the administration was not justified in doing so, I remember no one (except maybe me, in a general call for war crime trials) saying that the administration had committed a crime. For a guess, unlawful detention, violation of civil rights, or conspiracy would be in play. Those laws were on the books, the administration had not followed them. It seems not so different from the issues involved in the NSA activities.

And there are many cases like this. So what does this mean? It is not in the SCOTUS portfolio to cry "arrest that man" but I can remember no official being punished in a case remotely arguable. So perhaps the administration has not "broken the law" until SCOTUS or Congress says it has, and even then, there are no consequences. So the administration may be practically right, and there is no law for the White House. Only royal will and whim, and revolutions.

[calmo]

The opposition needs its own taps (which I am sure are available, deployable, and virtually undetectable) to make clear that Gonzales is an instrument not a witness.
Failing that, the opposition needs a leak from the wiretappers that the practice has not been confined to suspect terrorists.
Failing that, then we need to acknowledge that some oversight, some check or balance on the office of POTUS has slipped through our fingers.
Failing that, we need to pass legislation that in effect confirms this (as per John Miller) no matter how irrelevant this legislation is to an office with no oversight.
The appearance of democracy is still worth something.

[Gary Farber]

"...I remember no one (except maybe me, in a general call for war crime trials) saying that the administration had committed a crime. For a guess, unlawful detention, violation of civil rights, or conspiracy would be in play. Those laws were on the books, the administration had not followed them."

A relatively small thing, but not entirely, I don't know if you noticed that the Administration settled Ehab Elmaghraby's lawsuit this week for $300,000.

There are a variety of serious issues, detainee and NSA and Darfur and otherwise related, that I've been variously putting off blogging about (on my own blog) since last week or the last few days; I may or may not get to a couple tomorrow, or over the weekend, or possibly not until next week, assuming I do at all, which I probably will; been busy with other stuff, or just procrastinating; it's wearing to post about the depressing stuff, and the stuff that requires being a bit careful, unsurprisingly.

But the Ehab Elmaghraby settlement was a small good thing.

Digressing back to Iraq, I think someone posted a link here to Lawrence Kaplan's TNR piece, but I'm not sure if anyone gave a link all could use; the piece has points that can be used to defend most any POV on Iraq, it seems to me.

[Gary Farber]

Also, incidentally, the Detainee Treatment Act, and forced-feeding at Guantanamo looked at in federal court.

[IntricateHelix]

Just a few days ago I was having a conversation with my father about how unprepared (atleast it seemed) Gonzales was during the testimony he gave before the Senate Judiciary Committee.

I stopped counting the number of times he said he was not prepared to comment.

I could only imagine being on the hot seat like he was. However, for any government leader, I expect them to answer every 9/10 questions asked. But I guess this would be asking a lot from this administration. It embarrasses me to have leaders who are a) not capable and b) straight out ignorant to the issues.
********
On a side note: I've been doing a lot of thinking lately about the issue of protesting. I wish people took issues to the streets. I can only dream of the times when people did so. How sad. I have gone through almost the first quarter of my life (assuming I die at 100) and still have not witnessed one. What gives...?

[cleek]

So perhaps the administration has not "broken the law" until SCOTUS or Congress says it has

laws are irrelevant, where there is no enfircement. it's as true on Capital Hill as it is in Afghanistan.

[cleek]

WTF.OMG.LOL.

laws are irrelevant, where there is no enforcement. it's as true on Capitol Hill as it is in Afghanistan.

[hilzoy]

IntricateHelix: I assumed that he was trying to say as little as possible, and thus tried to answer as many questions as he could by: (a) when asked a question about the justification for the NSA program, repeating the administration's existing justification; (b) when asked any other legal question, saying that it would involve further study, and he was not prepared to answer it, even when the answer involved an obvious extension of the administration's existing rationale; and (c) when asked any factual question, saying that answering the question would involve disclosing operational details.

[bob mcmanus]

"But the Ehab Elmaghraby settlement was a small good thing."

I did notice it, and in part my comment expressed a desire for more such good news.
I think there must be consequences.

Now a law, like anti-sodomy laws, can have great effect even if rarely enforced. The move to the AUMF rationalisation shows at least some desire to avoid hassles and have a tolerable cover. But we must punish these people, we must never forgive or forget or try to move past this period.

"But they knew better, and they were better people than that. They put their country above their party, and they were right to do it."

Watergate was hell. It was the bottom of a very vicious violent period, in which people were dying in the streets of America because of their political beliefs. If Watergate destroyed the Republican Party, it was because the entire party needed destruction before sanity could be regained. If it has yet been regained. I don't think it went far enough, for Rumsfeld and Bork and Cheney and all the Young Republicans like Rove with bitterness, self-pity and dreams of revenge learned the wrong lessons at the time. That party should not exist.

[bob mcmanus]

"They put their country above their party, and they were right to do it"

And we have been here before, hilzoy. Are you saying that Baker and Dole and the party leadership that confronted Nixon were the heroes of Watergate? They, at the last minute, with the "smoking gun" aimed at the Party, managed some damage control.

There may have been "good" Republicans. Certainly Richardson, and I don't know Sirica's or Cox's affiliation. But if there were resistors to tyranny and corruption, they were attacked by their leadership and base at every move.

It is an authoritarian political party. Period.

[Slartibartfast]

Did the TSP (Terrorist Surveillance Program) follow FISA procedures?

I have no idea, since we don't know exactly what the Terrorist Surveillance Program IS. My personal opinion is that it doesn't need to, because what it is doing falls outside of what's described in the FISA statute. I've said this here before, though, and I don't expect many to agree. And...my opinion in the matter is of little import, because it's based on not enough information and next to no knowledge. Weigh accordingly, and remember that you did ask.

I'd also guess that Gonzalez is tippy-toeing around the matter either a) because he doesn't want to give away any salient details of a still-classified program, b) because he's covering up for the President at the possible expense of his career and freedom, or some combination of the above. He also may be stifling giggles at the frequent use of "wiretap" by his questioners (a couple of dozen occasions in hilzoy's Feb 6 transcript alone), indicating at least a partial lack of clue on their part. To his credit, Feingold didn't use the word even once that I saw.

Who is the one making laws and regulations? The legislative (Congress) or the President (the executive)?

The President has the power to execute; Congress has power to legislate. If you're looking for a ruling as to legality, though, I think you're neglecting to consider the branch of government whose job that is. One person I encountered proposed that the documents pertaining to this program be requested via FOIA, and then have the proper court rule as to whether classification is being done to disguise illegal activity. It's a thought, although me being Not A Lawyer, I have no idea how workable it is. Not speedy, to be sure. Katherine could probably suggest different, more effective approaches, and likely has while I've been otherwise involved with RL matters. Nothing all that interesting, but something possibly career-altering in that it might result in a shift of an eight- or nine-digit number in revenue. So you can see how I might be experiencing some pull away from blogdom.

Why the respective intelligence committees have not demanded that the senior members from both parties be briefed on this is yet a mystery, unless they already have, in which case this is all just sideshow. I'm not quite that cynical yet, so I'm left with the question.

[hilzoy]

bob: I was not saying that they were "the" heroes of Watergate, or even heroes at all. Just that the Republicans at the time could have tried to brazen it out, and did not. We now have more or less the equivalent of a smoking gun, in the form of a President whose administration asserts that he is not bound by the law in time of "war". There are Republicans -- i.e., Specter -- who admit that the NSA program violates FISA. That the President broke the law was what the smoking gun tape proved; at least in 1973, people seemed to think that was unacceptable.

[CharleyCarp]

Well, Slart, I have a FOIA request in to see if any of my communications have been intercepted. If any have, I'm likely to sue for money damages. When you've got a kid in college, you'll look for every opportunity to increase the cash flow . . .

Then again, if you're moving your revenue from eight to nine figures, I guess this isn't really the kind of thing you'd have to be concerned about . . .

[Slartibartfast]

If it were my revenue, CC, I'd be typing this from a beach condo in Belize.

[Slartibartfast]

Strike condo, insert estate.

I'd be taking my brain vitamins, I swear, if I could only remember where I put the damned things.

[CharleyCarp]

To respond to the comment above about there being no law where there is no enforcement -- this is the human condition. I'm getting ready for a jury trial later this month on a contract case. 9 of any 10 law professors I could find would say there was a breach of contract, but it all depends on what the jury says. And while they will pay attention to the evidence, they'll also pay attention to whether I wear the same tie on consecutive days, whether my mustache droops too much, and whether my client mumbles. This week, I'm briefing an appeal in Florida (from summary judgment) on whether a particular contract is void for uncertainty -- on this one, 99 of 100 law professors would go my way, but that doesn't mean 3 judges in Tallahassee will. It's not true that if you're a black football star, and investigating officers are white, it's legal to murder your ex-wife. Then again, maybe it's not exactly untrue either.

Law is always a whole lot more subjective and uncertain than we all like to pretend.

[Gary Farber]

"I can only dream of the times when people did so. How sad. I have gone through almost the first quarter of my life (assuming I die at 100) and still have not witnessed one. What gives...?"

They're actually usually extremely stupid and depressing, in my experience and view, as any mob is; that is, if you mean "take to the streets" like the Seattle anti-globalization protests/riots; peaceful mass demonstrations are another matter, and can be very inspiring, but nonetheless I'm, personally, always uneasy with crowds; even at the most positive and most positively necessary protest/march/gathering, the potential for changing over into a mob is not utterly eliminated.

And when times call for mass protests, times are bad. Not really something to be wished for, I think, but more to be endured only as necessary. And not so great to romanticize, in my view, despite my good memories of the 1970 Moratorium in D.C. (I was 11; my parents took me), and certain other anti-Vietnam War and civil rights marches I attended. Oh, and there was that anti-apartheid protest with the ritual submitting-to-arrest-and-being-released-almost-immediately, but that really was entirely by-the-numbers ritualistic.

And, really, giant paper-mache puppets: not a tradition anyone should want to preserve, methinks. And chanting: hey, hey, ho, ho, mindless chanting has to go.

Bob: "...I don't know Sirica's or Cox's affiliation."

Archibald Cox was a Harvard-professor Boston brahmin former JFKite Democrat, the evil bastard. John Sirica, as a federal judge, was essentially apolitical, at least publically. He was appointed by Eisenhower and was known as "Maximum John," for whatever that's worth. Definitely played a crucial role in uncovering Watergate, without doubt.

Slart: "Why the respective intelligence committees have not demanded that the senior members from both parties be briefed on this is yet a mystery...."

The full Intelligence committees of both House and Senate have now been given briefings on the Program, FWIW. The House Intel Commitee inquiry is proceeding; a Senate Intel Committee inquiry remains on hold largely due to Pat Roberts, though he probably couldn't manage that if a majority of the Committee firmly opposed him; he's treading water in a delaying action at present, essentially.

How thorough said briefings were, and what they contained, I couldn't possibly know, of course. Meanwhile, Spector has offered, this week, a bill which various lawyer bloggers seem to be of somewhat conflicting opinions about as yet, though none on the non-Bush-supporting side see anything remotely favorable in it, that I've yet noticed; since IANAL, I'm not really clear yet on the effect Spector's bill would have if passed, though I suspect I wouldn't like it. Here's a post from Jack Balkin, if you want to take the time to go from there.

Charley to Slart: "Then again, if you're moving your revenue from eight to nine figures...."

I read that as referring to Slart's company, although if it is about him personally, I'm definitely going to have to work on sucking up to him. I'm pretty short of jingle-jangle in me pocket this month, again; a few grand, or even fifty bucks, would be very handy. Besides, it might up the odds against his using his Fiendish Death Ray on me.

[hilzoy]

CharleyCarp: did I ever mention one of the juries I was on (and why do they never exclude me, a scholar specializing in, among other things, guilt?), in which we hung because we could not agree on the meaning of the word 'trunk' (the trunk of a car)?

Specifically: if it's only OK to carry a concealed weapon in the trunk of a car, does the back of an SUV count, on the grounds that a trunk is where you put stuff, or (as I argued) not, on the grounds that a trunk has to be lockable and inaccessible?

[Gary Farber]

Specter. Which I would have posted ten seconds after my last comment if Firefox hadn't locked up, and I'd not had to do a complete restart of the computer.

[CharleyCarp]

Yes, Hil, but did the lawyer's mustache droop?

Seriously, if I heard your argument (did the state make it too?) I would vote to acquit. The state isn't supposed to impose criminal penalties where the nature of the violation is too vague for an ordinary person to know whether or not they are breaking the law. My wife drives a Cherokee, and it is difficult enough for anyone over 12 years of age to get to the back from the inside that it's as much a trunk as those sedans where you can get to the trunk by putting down the seat. probably harder.

[Jackmormon]

I didn't get excluded on the basis of being a college-level instructor in Logic and Rhetoric, if that makes you feel any better, hilzoy.

[hilzoy]

The state didn't make the argument (nor did the defense.) And the real reason they hung, actually, was more about what I guess you'd have to call self-nullification. -- The defendant was a black guy, maybe sixty, who had been dropping a friend off after a fishing trip, and tapped a car while backing out of the friend's driveway. He waited for the (white, aggressive) cops, being by all appearances a decent law-abiding guy, and when they came, they saw two beer bottles in the back, asked him to walk a straight line, and mistook his limp for drunkenness. When they got him down to the station for DUI, they gave him a breathalyzer, and discovered that, as he had said, he had not been drinking -- the bottles were from the fishing trip; he and his friend had not wanted to litter. The concealed weapons charge was, imho, a face-saving gesture, and why anyone decided to actually prosecute it, I have no idea.

The prosecutor was truly horrendous. He had no clue how to frame an argument, and kept trying to show all sorts of extraneous things -- the irrelevant point that stuck in my mind was that the SUV was of a kind often used by gangs. (No one had alleged gang membership, which I suppose shows that there was at least one thing too ludicrous for the state to claim.)

[CharleyCarp]

That's what nullification is for.

[Katherine]

isn't there some rule that you're supposed to construe an ambiguous statute in the defendant's favor? "The rule of lenity," or something? I could totally be making this up.

[Katherine]

and was the defendant wearing a casio watch?

[CaseyL]

"Why the respective intelligence committees have not demanded that the senior members from both parties be briefed on this is yet a mystery, unless they already have, in which case this is all just sideshow. I'm not quite that cynical yet, so I'm left with the question."

If they have made such a demand, and if their demand wasn't simply ignored, they might be stuck with the same Catch-22 that operated when the Bush Admin "briefed" a few chosen Senators about the program way back when. The Catch-22 then was, they were given classified information and couldn't discuss it. With anyone. (You'll recall that some of the Democrats who got that briefing wrote letters expressing their misgivings and frustration at the Catch-22.)

The hearings might be a "sideshow," but it might be a sideshow to educate the public in matters the Senators can't discuss otherwise, by putting the AG in the position of having to reveal what the Senators already know. Which, of course, he evaded by being substantively nonresponsive.

Gonzales' opaque allusions to other programs is frustrating and alarming. The WH is a black hole; no meaningful or true information comes out of it. Considering what we already know about how the WH operates, I see no reason not to assume they're engaged in surveillance that's not legal in any fashion, and doing it through a cadre of loyalists who aren't about to leak it.

[Slartibartfast]

If they have made such a demand, and if their demand wasn't simply ignored, they might be stuck with the same Catch-22 that operated when the Bush Admin "briefed" a few chosen Senators about the program way back when. The Catch-22 then was, they were given classified information and couldn't discuss it. With anyone.

Sorry, this argument doesn't fly as far as I'm concerned. It applies to all level of reviews shy of complete disclosure. "Couldn't discuss it" is also simplistic. They can acknowledge that they've been briefed, and to the best of their knowledge it's either aboveboard or vileness that should not be tolerated (check one). Is limited oversight any better than no oversight, as far as you're concerned?

The WH is a black hole; no meaningful or true information comes out of it.

As far as classified programs are concerned, this had better be damned close to the truth. Else, you know, why classify at all?

[Katherine]

Why classify? Because you can.

Let's not kid ourselves about the classification power. It's necessary. It's also overused and used for political as well as national security reasons. In every administration, but especially, especially of this one.

I mean, when the hell are we going to see the rest of the OLC memos?

[CharleyCarp]

Katherine, they don't tell jurors about stuff like that, or about their power to nullify. I see periodic bills introduced in the Montana legislature to require a jury instruction on nullification, but it never gets anywhere.

I have a standard rant against nullification, which would except Hil's case, but little else.

The bottom line, of course, is that it's not really avoidable, and so the best that can be done is not tell jurors, and let them stumble into it.

[bob mcmanus]

NSA and Rule of Law

Dave Neiwert briefly discusses an Oregon case involving the wiretapping of an Islamic charity. I have long thought that the final clause in the TSA description..."affiliated terrorist organization"...was directed at the various American chapters of Islamic charities associated with groups the administration has designated as terrorist, and a large part of the TSA and other NSA activities were to monitor fund-raising. We simply have little domestic Islamic terrorism, tho of course it doesn't take much.

In any case, the actual wiretapping described in the case may not be related to TSA or may be legal under other regimens but the gov't dismissed the charges to avoid revealing sources and methods.

[Slartibartfast]

Why classify? Because you can.

Let's not kid ourselves about the classification power. It's necessary.

Good. Can we stop pretending, now, that every occasion in which information is classified is an abuse of the classification power?

Yes, abuse of the privilege leads to this. It's a self-inflicted wound. But it doesn't follow that because classification power has been abused in this and prior administrations, that this is one such abuse.

Unless you've got evidence to the contrary, that is. As I said, I'm all for a judicial review of the program if there's even a mechanism for that. Congressional review falls on the edge of being too political to be meaningful. Not saying the courts are completely apolitical, just that they're not playing to their constituencies. I also tend to trust the bench to keep secrets that they've promised to keep rather more than I trust Congresscritters.

[Jesurgislac]

Slarti: What is the point of a judicial review, when the Bush administration have declared that they don't have to obey the courts and have taken action that makes clear they are not obeying the courts?

What, indeed, can anyone in the US do to stop the Bush administration now?

This is a serious question: it does seem to me that you have a situation here where Bush & Co acknowledge no restrictions on their right to rule, to the extent that they seem to consider both Congress and the courts as in their service. In similar circumstances in England a few hundred years ago, the solution was to cut short the head of state.

[Slartibartfast]

Slarti: What is the point of a judicial review

Why, to get at the truth. What else?

the solution was to cut short the head of state.

I trust this isn't nostalgia speaking.

[Dantheman]

Jes,

Ditto in France, although it took some time from the exposition of such a view of state power by Louis XIV to lead to revolution and shortening the monarch a little bit (to use Allan Sherman's expression).

[Katherine]

"Good. Can we stop pretending, now, that every occasion in which information is classified is an abuse of the classification power?"

I didn't do that, did I?

As far as this program: it's classifying the legal rationale that makes me furious. It's absurd to classify a constitutional argument. If the same memos describe operational details you can redact those operational details.

[Jesurgislac]

Slartibartfast: Why, to get at the truth. What else?

In general, I would have thought, to prevent the Bush administration from continuing to break the law. No?

[Slartibartfast]

In general, I would have thought, to prevent the Bush administration from continuing to break the law. No?

Dunno, it was your question to begin with. If I'd have known it was rhetorical, instead of the oh-why-bother level of despair that it appeared to be, I wouldn't have answered.

I didn't do that, did I?

No, you didn't. Retracted, with bonus level of chagrin.

it's classifying the legal rationale that makes me furious.

Consider that perhaps the legal rationale might offer clues to the nature of the program that are sensitive for reasons other than avoiding having people find out that you're violating their Fourth Amendment rights. I mean, that particular cat is out of the bag, no?

[Katherine]

If the president thinks that his commander in chief power gives him a general power to authorize felonies, we need to know that. It wouldn't apply only to FISA.

[Gary Farber]

Slart: "'Couldn't discuss it' is also simplistic. They can acknowledge that they've been briefed,"

That depends entirely on the terms of the briefing. They can be briefed under terms that don't allow them to acknowledge that they've been briefed on a specific program. As was the case with the rolling briefings of the Big Eight (Senate Majority Leader, Minority Leader, IntelComChair, IntelComSeniorMinorityMember, House MajLeader, MinLeader, IntelIntelComChair, IntelComSeniorMinorityMember) over the Program in the first place.

"Congressional review falls on the edge of being too political to be meaningful."

This is alarmingly close to opposing our constitutional form of government. Congressional review of everything is absolutely inherent to the basic concept of our government. If the simple concept that Congressional review of everything is absolutely necessary and is as basic a power as is inherent in our government isn't clear, we might as well just give up on the whole thing, so far as I can see.

Are politicians, be they the President and the President's appointees, and people in Congress, and, in other words, everyone who runs for office or is hired in a non-Civil-Serivce capacity by an elected official (this includes elected state judges "political"? Yes. Is that bad? In practice, it can have bad effects. Is it inherently bad that these people are political?

Only if democracy is bad. Again, if so, why not junk the whole system, then, and be clear about it?

[Gary Farber]

"I also tend to trust the bench to keep secrets that they've promised to keep rather more than I trust Congresscritters."

Fine. But either you accept that we elect Congress to pass laws, to set budgets, and to supervise and provide oversight on government, or you don't. To do that, you have to trust them, or at least nonetheless allow that that's their job. To oppose letting them do any of these things because some of them aren't personally worthy of our trust (and obviously that's true of humans in any and all positions, at times) is, again, to oppose the American system of government.

I very much doubt that you do, but I feel the need, reading these sentences from you, to remind you of what you're nudging up close to. Like it or not, Congress has to be trusted to do its job; if it can't be trusted, or if one advocates policies that say it can't be trusted, well, what alternate system of government would you propose we switch to?

[dutchmarbel]

Ah..... history. From our independence declaration in 1581 (back when WE were a colony):

As it is apparent to all that a prince is constituted by God to be ruler of a people, to defend them from oppression and violence as the shepherd his sheep; and whereas God did not create the people slaves to their prince, to obey his commands, whether right or wrong, but rather the prince for the sake of the subjects (without which he could be no prince), to govern them according to equity, to love and support them as a father his children or a shepherd his flock, and even at the hazard of life to defend and preserve them. And when he does not behave thus, but, on the contrary, oppresses them, seeking opportunities to infringe their ancient customs and privileges, exacting from them slavish compliance, then he is no longer a prince, but a tyrant, and the subjects are to consider him in no other view. And particularly when this is done deliberately, unauthorized by the states, they may not only disallow his authority, but legally proceed to the choice of another prince for their defense. This is the only method left for subjects whose humble petitions and remonstrances could never soften their prince or dissuade him from his tyrannical proceedings; and this is what the law of nature dictates for the defense of liberty, which we ought to transmit to posterity, even at the hazard of our lives.

2008 it is ;)

[Slartibartfast]

This is alarmingly close to opposing our constitutional form of government. Congressional review of everything is absolutely inherent to the basic concept of our government.

Really? Where in the Constitution is Congressional oversight covered? Not saying it isn't, mind you, I just don't recall that being laid out anywhere. Nor do I say anything counter to Congressional oversight as such. What I am saying is that if this is a question of law, the question should be put before the Judicial. Perhaps. Could be wrong; I frequently am.

Only if democracy is bad. Again, if so, why not junk the whole system, then, and be clear about it?

Having put words in my mouth, you then draw conclusions from them. Best think again, Gary.

[Slartibartfast]

That depends entirely on the terms of the briefing. They can be briefed under terms that don't allow them to acknowledge that they've been briefed on a specific program. As was the case with the rolling briefings of the Big Eight (Senate Majority Leader, Minority Leader, IntelComChair, IntelComSeniorMinorityMember, House MajLeader, MinLeader, IntelIntelComChair, IntelComSeniorMinorityMember) over the Program in the first place.

For some reason I thought this was because the very existence of this program was a secret. Are you now saying it's not that, but it's instead because that one has been briefed on it is classified? That would be most peculiar.

[Gary Farber]

"Really? Where in the Constitution is Congressional oversight covered?"

Article I, Section 8: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

It's always been granted, from the start, that inherent to this power is the power to investigate. One can't pass laws in ignorance. I should think I don't need to start digging up precedent on this, as it would be quite ludicrous to deny that this has been the case for over 200 years.

"What I am saying is that if this is a question of law, the question should be put before the Judicial."

If what's a question of law? In any case, all three branches get to pronounce on law. The Congress writes it, and says what it is, then the President says what he (so far) thinks it says and how he'll execute it, and then the Courts have the final word until such time as Congress removes their jurisdiction. Anything in law is a matter for all three parts of government, as a generality; where it lies in practice would be a matter of specific. But I don't know what specific you're actually talking about.

"Having put words in my mouth, you then draw conclusions from them."

Of course, I did neither thing.

[Slartibartfast]

Ah, those "if democracy is bad" questions were unrelated to anything I said? Fine, I'll disregard.

and then the Courts have the final word until such time as Congress removes their jurisdiction

Hmmm...this part I knew, but I was completely unaware that Congress was given a say in legal interpretation. Let this be a civics lesson for me, then.

That aside, what recourse do see that is available to Congress in this matter? Given that Gonzalez has dug his heels in, I mean.

[Slartibartfast]

And with that, I must go out and consume various bits of raw fish on rice. Hey, someone's got to do it.

[Gary Farber]

"For some reason I thought this was because the very existence of this program was a secret. Are you now saying it's not that, but it's instead because that one has been briefed on it is classified?"

Not being privy to the classified briefings, I couldn't possibly know, could I? Since I assume you weren't cleared for and present at the hearings, and aren't otherwise privy to this knowledge, I assume you don't know, either. Of course, were I wrong about the latter, you couldn't tell me. But I know which way I'd bet my nickel.

"That would be most peculiar."

And fortunately the Administration never does anything peculiar. No, perfectly explicable is all they do. Except I don't think you think that, either. But as a sample, why was A-G Gonzalez not sworn in before his testimony to the Judiciary committee on the legal aspects of the Program when it's Specter's declared policy to swear everyone in? Isn't that peculiar?

"Ah, those 'if democracy is bad' questions were unrelated to anything I said? Fine, I'll disregard."

Excluding the middle, Slart; tiresome. If I say "Slart says blahblahblah," I'm putting words in your mouth.

If I ask you a question, hypothetical or not, about what you've said, I'm not putting words in your mouth.

If I respond to what you've said, I've not putting words in your mouth.

Yet both forms of reply have something to do with what you've said: they're responses.

At no point in my 4:35 did I put words in your mouth. Yet I did respond very directly to what you said. It's, as I said, tiresome to have to point this out, since it's neither subtle nor should be confusing.

"Hmmm...this part I knew, but I was completely unaware that Congress was given a say in legal interpretation. Let this be a civics lesson for me, then."

It would be pretty difficult for Congress to write a law and have no interpretation of what it was saying, don't you think? Again, this is more than a little obvious. Slart, you're doing your clonking your head on a tree-branch while writing as if we weren't writing about walking through a piece of forest thing again.

"That aside, what recourse do see that is available to Congress in this matter?"

I'm not quite sure what you are referring to as "this matter." Get the Intel Commitees the briefings that I pointed out above at March 02, 2006 at 11:44 PM that they've had?

[liberal japonicus]

And with that, I must go out and consume various bits of raw fish on rice. Hey, someone's got to do it.

Doesn't everyone? Everyone I know does. ;^)

[Slartibartfast]

as a sample, why was A-G Gonzalez not sworn in before his testimony to the Judiciary committee on the legal aspects of the Program when it's Specter's declared policy to swear everyone in? Isn't that peculiar?

Oh, yes. Gonzalez himself was surprised. Why the guy who's representing the administration in this matter is surprised by not having been sworn in, yes, that's peculiar.

I'm not quite sure what you are referring to as "this matter." Get the Intel Commitees the briefings that I pointed out above at March 02, 2006 at 11:44 PM that they've had?

Odd. This looks to me as if you're suggesting that that which can be done, has been done, or you're suggesting that the Intel Committees should be briefed again on that which they've already been briefed. I'm sure there's a third interpretation that's escaping me that's the right one, since neither of these make much sense.

Possibly it' the case that the Intel Committees now have been fully briefed, but a quick perusal of news articles points to that they have not been, but my Google might be broken and I'm just not finding anything current. Maybe a link would be just the thing at this time? Possibly not, though.

[Gary Farber]

"This looks to me as if you're suggesting that that which can be done, has been done, or you're suggesting that the Intel Committees should be briefed again on that which they've already been briefed."

I wasn't suggesting anything at all. I stated a fact. Remarkably, as often happens, I had no ulterior motive behind stating the fact.

"Possibly it' the case that the Intel Committees now have been fully briefed, but a quick perusal of news articles points to that they have not been, but my Google might be broken and I'm just not finding anything current. Maybe a link would be just the thing at this time? Possibly not, though."

Sure. Here's a wacky thing: sometimes news stories get things wrong, and sometimes we just misread them, but if you follow the issue, you'll have the context to mostly know which ones are right and which ones are wrong.

The House Intel Committee was briefed February 9th.

From your own cite: "But the administration changed direction, offering new operational details to the House Intelligence Committee on Wednesday. A comparable Senate briefing was scheduled for Thursday."

Which happened. Like it says. In your cite. Where it says that the House Intelligence Committee was briefed on Wednesday (Feburary 9th). And that a comparable Senate briefing was scheduled for Thursday (February 10th). Which doesn't actually say that the Intelligence Committees have not been briefed. Since this is now March 4th. And the briefings took place on February 9th and 10th.

Are we on the same page on this now? (I'd rather be on the same plate of sushi, but only if it's fresh.)

[Slartibartfast]

The House Intel Committee was briefed February 9th.

Yes, Gary, I saw that one too. So, what's the consensus of Congress now, after they've purportedly been briefed?

Interestingly, one of hilzoy's links has the following:

Indeed Judiciary Committee member Sen. Charles Schumer, D-N.Y., while critical of the administration for not revealing more about the NSA program, was specific after the hearing in saying, “I do not want to have it ended; I’ve never wanted to have it ended, I just want to make sure that somebody is overseeing it.”

So the issue is now, apparently, that Congress wants to have oversight. Which, oddly, is what they've always had, to the extent that Congress is briefed on highly classified programs. Interestingly, there's still some disagreement as to whether the program is/was legal, but Chuck Schumer apparently is not one of those who think it's illegal.

How do you think the disagreement among Congresscritters who disagree as to the legality of the program ought to be resolved? Vote? Is whether the program is illegal a matter of opinion? Seems to me as if the folks who think this is an impeachable offense don't think it is.

Remarkably, as often happens, I had no ulterior motive behind stating the fact.

And equally remarkably, I didn't suggest that you did. Funny how that works. Also remarkably, I didn't say anything inconsistent with Which doesn't actually say that the Intelligence Committees have not been briefed. Perhaps we can laugh at that together.

As far as sushi goes, my standards for a decent sushi place is the quality of their yellowtail. Yellowtail seems to go bad rather more quickly than other kinds of fish. Tokyo Cafe in Vista Lakes shopping center seems to have a decent selection of above-average fresh fish for a reasonable price. The kids have the teriyaki chicken and shrimp, though, because they're still grossed out at the idea of raw fish. My personal favorites are yellowtail, sweet shrimp, tuna, surf clam and squid. I've tried the sea urchin but...well, it was the worst thing I've ever put into my mouth.

I've never been to a truly trendy sushi place, though, so I don't know how all this compares to the upscale menu. My brother and I went to a place in Buckhead (north Atlanta) that was rather tiny, but the sushi was outstanding. He ordered something that wasn't on the menu (rice ball) and it too was really good. He lived in Tokyo (Shinjuku, actually) for a year or more, so he had some idea of what standard fare is.

[Gary Farber]

"Yes, Gary, I saw that one too. So, what's the consensus of Congress now, after they've purportedly been briefed?"

Dunno, haven't done a survey.

"How do you think the disagreement among Congresscritters who disagree as to the legality of the program ought to be resolved? Vote?"

That's usually how Congress decides things. Once upon a time, anyway.

"Is whether the program is illegal a matter of opinion?"

What else? One could declare that it's a matter of statutory fact, but that usually still tends to circle around to opinion, although one can argue whether that's correct or not.

"And equally remarkably, I didn't suggest that you did."

You said I was either suggesting one thing or another thing, whereas I was suggesting neither thing and no thing.

"As far as sushi goes, my standards for a decent sushi place is the quality of their yellowtail. Yellowtail seems to go bad rather more quickly than other kinds of fish."

Interesting tip. I love sushi, but am no expert; the fancy stuff I just get to read about. (Not to say that yellowtail is fancy; I'm just saying.) There are several what-seem-to-be extremely good sushi places here in Boulder, just a few blocks away from me (despite the common wisdom from some that one shouldn't get fish in non-coastal regions -- I don't find that to be particularly sensible advice in the modern era), but they're just not in my budget, alas. Perhaps LJ has some words of wisdom or sushi tips.

Places in Boulder I've either never been to, or have been to once with out of town guests: Japango, Hapa Sushi, others. Sumida's is right around the corner; good Thai food, upstairs, also. Lotta Thai places around town, too.

Don't recall ever having sea urchin. Happy with unagi, and with squid, though. As with most foods, I lean towards preferring spicy. There are exceptions, such as with fried banana.

The cheap packaged sushi they sell at Safeway and King Soopers really sucks, though. Awful. The Whole Foods stuff isn't bad, but again, too expensive for my budget. (Along with their entire excellent deli department, and mostly the whole store; fortunately, it's a bit of a walk, although not extremely so.)

[Gary Farber]

"So, what's the consensus of Congress now, after they've purportedly been briefed?"

Just to be clear, it was the Intelligence committees briefed, as per statute, not the whole of Congress or any other members outside the committee and majority/minority leaders. Nor, presumably (but impossible to know) did the briefing extend beyond The Program, nor do we know how satisfactory or not everyone who received the briefing felt, though I've not seen any complaints.

[Gary Farber]

Now the latest is Frist's letter threatening to restructure the Senate Intelligence Committee to prevent hearings on The Program. Mr. Greenwald discusses.

[Gary Farber]

Most relevant passages:

The inquiries currently underway, and the ones being proposed by the minority, would demand an overwhelming amount of staff time, attention and resources. Rather than conducting oversight of the intelligence community and its activities, or assessing current and future threats to the United States national security, the committee is focusing most of its activities on investigations that offer little (or no) value to the challenges our Nation faces now. [...]

I would propose that we meet with Senators Roberts and Rockefeller as soon as possible to discuss and rectify this matter. [...] If we are unable to reach agreement, I believe we must consider other options to improve the Committee's oversight capabilities, to include restructuring the Committee so that it is organized and operated like most Senate committees.