This article by The Washington Post's Dan Eggen (who, as I've said before, has been one of the best journalists by far covering this story) analyzes one of the truly inexplicable aspects of the Administration's rationale for its warrantless eavesdropping program -- namely, why the program is limited only to international calls.
If, as the Administration claims, FISA is too stringent and burdensome to enable the "speed and agility" we need to keep up with the lightning-fast communications of Al Qaeda, and if (as the Administration constantly claims) Al Qaeda has sleeper cells within the U.S. similar to those which perpetrated the September 11 attacks, what possible excuse could there be for applying the FISA-bypass program only to international calls while allowing Al Qaeda to communicate freely within our country?
Here is what Gonzales said about this on Monday when questioned by Sen. Kohl:
KOHL: Just to go back to what Senator Biden and then Senator Kyl referred to about Al Qaida-to-Al Qaida within the country, you're saying we do not get involved in those calls...
GONZALES: Not under the program in which I'm testifying, that's right.
(CROSSTALK)
KOHL: It seems to me that you need to tell us a little bit more because to those of us who are listening, that's incomprehensible. If you would go Al Qaida-to-Al Qaida outside the country -- domestic- outside the country but you would not intrude into Al Qaida-to-Al Qaida within the country -- you are very smart, so are we, and to those of us who are interacting here today, there's something that unfathomable about that remark.
GONZALES: Well, Senator, we certainly endeavor to try to get that information in other ways if we can. But that is not what the president...
KOHL: No, but isn't -- we need to have some logic, some sense, some clarity to this discussion this morning.
GONZALES: Senator, think about the reaction, the public reaction that has arisen in some quarters about this program. If the president had authorized domestic surveillance, as well, even though we're talking about Al Qaida-to-Al Qaida, I think the reaction would have been twice as great.
And so there was a judgment made that this was the appropriate line to draw in ensuring the security of our country and the protection of the privacy interests of Americans.
KOHL: I appreciate that. And before I turn it back to the -- but yet the president has said with great justification, he's going to protect the American people regardless.
KOHL: And if there's some criticism, he'll take the criticism.And yet you're saying Al Qaida-to-Al Qaida within the country is beyond the bounds?
GONZALES: Sir, it is beyond the bound of the program which I'm testifying about today.
This exchange can mean only one of two things: either (1) the President decided not to pursue measures (i.e., FISA-bypass eavesdropping on domestic communications) which he believes are vital to our national security because doing so would have subjected him to criticism from "some quarters," or (2) the Administration, contrary to the repeated and unequivocal assurances from the President, is engaging in warrantless eavesdropping on purely domestic communications as part of some eavesdropping program other than the one disclosed by The New York Times.
In a separate article published the day after the hearings, Eggen reported this:
Gonzales chose his words carefully, frequently limiting his answers to "this program" or to "the program the president has confirmed." At one point he said senior Justice Department officials, whose concerns about the program contributed to a temporary halt in surveillance in 2004, did not raise objections to the program he was discussing.
A department official said after the testimony that Gonzales was not implying that any other program existed.
When the Justice Department says that "Gonzales was not implying that any other program existed," that is not, of course, tantamount to stating that no other program exists. As I've noted before, every time Gonzales or the DoJ has issued assurances that eavesdropping is confined only to international calls where one of the parties is an Al Qaeda affiliate, the assurance is always limited by the conspicuous and intentional limitation: "under the program described by the President." Gonzales used that same phrase repeatedly when testifying, and there is simply no doubt that this phrase is carefully crafted and deliberately invoked. There is some reason why they are limiting their assurances in that fashion.
This should be a very difficult corner for the Administration to get out of. Both options are unattractive. It is self-evidently inexcusable for the President to forego measures he believes are vital to the protection of Americans simply because (as Gonzales said Monday) pursuing those measures would provoke some criticism. But it would be equally damaging to the Administration, at least, if it turns out that there are programs which entail warrantless eavesdropping on the domestic communications of Americans.
If there is one thing which Americans likely have ingested from the Administration's defense of itself in this scandal, it is that the only calls subject to warrantless surveillance are international. It would be a huge blow to the Administration if it turns out, as Gonzales is clearly implying, that there are other programs which entail warrantless surveillance of purely domestic communications.
Either the Administration is purposely allowing Al Qaeda to communicate freely within the U.S. without meaningful surveillance (i.e. surveillance that is not bogged down by those obstructionist, cumbersome FISA requirements) , or the President repeatedly lied when he assured Americans that no domestic communications were being listened to without warrants. A third option doesn't appear to exist for the Administration.
UPDATE: Although there are multiple times when Gonzales strongly implied that there were other eavesdropping programs beyond what "the President confirmed," the following exchange between Gonzales and Sen. Schumer provides an almost absolute assurance from Gonzales that there is no warrantless eavesdropping program for domestic communications:
SCHUMER: Would he engage in electronic surveillance when the phone calls both originated and ended in the United States if there were Al Qaida suspects?
GONZALES: I think that question was asked earlier. I've said that I don't believe that we've done the analysis on that.
SCHUMER: I asked what do you think the theory is?
GONZALES: That's a different situation, Senator. And, again, these kind of constitutional questions -- I could offer up a guess, but these are hard questions.
SCHUMER: Has this come up? Has it happened?
GONZALES: Sir, what the president has authorized is only international phone calls.
SCHUMER: I understand.
Gonzales' unambiguous claim here that the Justice Department has not conducted a legal analysis as to whether the Administration could engage in warrantless eavesdropping on purely domestic communications certainly would seem to preclude the existence of a domestic eavesdropping program. Particularly since Gonazles acknowledged that domestic eavesdropping is a "different situation" which presents "hard questions," a pre-requisite to the commencement of such a program would be for the DoJ to opine that such surveillance was legal and constitutional.
Gonzales' denial that the DoJ has ever engaged in such a legal analysis is tantamount to an unambiguous denial that there are eavesdropping programs which entail warrantless surveillance on domestic communications. That fact leads back to the question as to why the President, who believes that we cannot engage in adequate surveillance if we stay within FISA, would leave Americans vulnerable and unprotected by restricting his FISA-bypass program only to international calls, thereby handing Al Qaeda the ability to communicate freely and undetected within our borders. What kind of President would fail to take measures vital to our national security simply because -- as Gonazles claimed when asked why there was no domestic surveillance -- he would be subject to criticism from "some quarters."
Asking this question is not a coy tactic. If the President really believes that we can't engage in effective surveillance of Al Qaeda under FISA, isn't it a profound dereliction of his responsibilities not to extend the FISA-bypass program to domestic communications? There is no theoretical or legal difference between international calls and domestic calls in this context, so it seems that the only possible explanation for his failure to do this is exactly what Gonzales said - he was afraid to be criticized for doing it, so he opted instead to allow Al Qaeda to communicate within the U.S. without detection.
Many long-distance domestic calls are routed through satellites. Technically, do the calls become "international" under this program?
ReplyDeleteTechnically, do the calls become "international" under this program?
ReplyDeleteTheir claim is that the only conversations they eavesdrop on without warrants is where one of the parties is outside the U.S. Their phraseology on that issue has been clear enough that it unquestionably does not include calls between two people in the U.S. who happen to have their call routed internationally.
I notice that 2004 was also the year that the the DOJ lawyer advised FISA judges that 2 times the warrantless wiretaps had been misued for FISA warrants, thus rendering useless a federal screening system that the FISA judges had imposed. As I understand it, that info caused the FISA judge(s) to temporarily suspend the program ... about the time that Comey got involved. The weight of the discussion is leaning toward more than one NSA wiretap program ... no wonder the FBI has been struggling to keep up with all the data. I would bet the backlog today makes mincemeat out of the one pre 9-11.
ReplyDeleteGlenn and company,
ReplyDeleteSeen this article in the Washington Times magazine, Insight?
http://www.insightmag.com/Media/MediaManager/wiretaps_0.htm
This article (from Dec '05, admittedly) says that law enforcement sources say the extra-FISA surveillance was also taking place within the US (domestic conversations).
If true, that would change things, and would make Abu a big fat liar, yes?
As I was thinking this morning about this qualifying phrase -- "the program the President has confirmed" --I arrived at "(2)," i.e., I decided that there is another program (or programs)that involves eavesdropping on Americans for whom there is no preceding probable cause or reasonable belief that they are bad guys. Instead, people who are good guys and who should be spared eavesdropping, are spied upon until they have been proven innocent (to some unknown parties' satisfaction).
ReplyDeleteListening to Gonzales' tone of voice, seeing his expression, and noting his careful choice of words, left virtually no doubt in my mind that there is another program, or what the administration calls another program, that is the domestic version of the acknowledged international spying. Gonzales was just avoiding a perjury -- no, Spector let him off of that one -- lying-to-Congress rap.
ReplyDeleteThe programs are most likely the same one. It is just that Rizen revealed the international aspect of it, so that is all the administration admitted. So, when the obvious questions arose about its domestic counterpart, it had to become a separate program, at least in name, for the Administration hoping to cover it up until the Rove machine could quiet the political waters. The Admiistration is now doing all it can to avoid acknowledging the domestic spying for the very reason Gonzales mentioned: the American public will not stand for it.
Let's hope Rizen or the WashPo is close to finding a Deep Throat on the domestic side of this spy ring.
There was this article published in the Times by Risen and Lichtblau shortly after their initial disclosure, reporting that there were purely domestic communications "accidentally" eavesdropped on as part of the program.
ReplyDeleteI agree that on numerous occasions when he testified, Gonzales went out of his way to emphasize that his statements were limited to this particular program rather than to the Government's eavesdropping activities generally. Sometimes, his phrasing was so strained and awkward that it seemed clear from the way he emphasized "ONLY this program" that there were other programs which include, for instance, warrantless eavesdropping on domestic communications.
Shouldn't we get be entitled to a direct answer from the Administration to this question: "are there FISA-bypass programs which authorize warrantless eavesdropping on domestic communications," or more simply, "whether as part of this program or otherwise, does the Government engage in warrantless eavesdropping on purely domestic communications"?
My sense is that the NSA scandal is not yet getting traction. It so far has the feel of an episode that will be just another blip on the screen without much consequence, unfortunately. One major reason why this is the case is, for instance, CNN's headline today.
ReplyDeleteMy sense is that the NSA scandal is not yet getting traction.
ReplyDeleteIt's only been 6 weeks since this scandal began - 6 weeks. In that very short time, 2 different Senate Committees have launched investigations; scores of high officials and prominent political figures in the President's own party have expressed real opposition, even outrage, over what the Administration has done; and polls show that substantial portions of the public are disturbed by what the President did here.
Whenever people come along and say things like "I think this scandal doesn't have real traction" or "the American people don't care about this," what they usually mean is that they hope that is the case, or that they don't care if the Administration broke the law and are projecting that indifference onto others. No facts support this dismissive attitude.
Quite the contrary - if you compare the arc of this scandal thus far to prior presidential scandals -- Watergate, Iran-Contra, Lewinksy -- both the speed and level of the public opposition, as well as the recognition on the part of the media of its seriousness, is levels beyond what occurred previously.
We are the beginning of this scandal, not the end of it, and as it progresses, and as more is revealed, things can only get worse, not better, for the Administration. It's impossible to imagine how someone who opposes the Administration's actions will come to change their mind, but it's quite easy to see how those who don't oppose it can be persuaded to change their mind.
It's also worth exploration to find out how much "domestic" telecommunications traffic -- this, traffic from one person within the boundaries of the U.S. to another person, also within the boundaires of the U.S. -- is *routed* through lines, channels, or equipment which is considered "international."
ReplyDeleteVast number of calls who's endpoints terminate with the territory of the United States still pass through satellites, while another portion also or alternatively pass through lines which briefly pass through non-U.S. territories. (Calls from Montana headed for Maine might well go through Canada, for instance, or a call from San Diego to Shrieveport might pass through Mexico. To say nothing of calls from Hawaii or Alaska or Puerto Rico going through anywhere, for that matter.)
It doesn't seem at all beyond the pale to think that the administration would be using meaningless but somewhat comforting sounding geographic distinctions that don't have technologically enforceable boundaries.
What I don't understand is when the administration says that it was only monitoring those in the U.S. who were in contact with AQ, how did the administration know that the communication was with AQ if it wasn't monitoring communications in the first place? I know technology has come a long way but only a psychic could know whether someone was in contact with another particular entity without monitoring.
ReplyDeleteSpeaking of other programs, there's something called ADVISE that the Christian Science Monitor reported on today:
ReplyDeleteLink.
Orcinus argues that Bush may have started illegal domestic surveillance BEFORE 9/11. He bases this on Gonzales' hedging about the date the program was initiated.
ReplyDeleteToo many people it seems have forgotten the lessons of Kent State and the 68 democratic convention. Violent action against citizens over their politics is a real possibility, if we can't maintain the rule of law.
ReplyDeleteQuoting from your post yesterday "the Administration has now baldly stated that whatever it is allowed to do against our enemies in a war, it is equally entitled to exercise all of the same powers against American citizens on American soil."
So what happens when the eavesdropping program discovers someone who's a really bad guy but they can't prosecute him because they've tainted the evidence?
We already know what they do if he happens to be in Pakistan.
I got the sense that this "legalistic parsing" was not lost on Sen Graham and Sen DeWine.
ReplyDeleteParticularly for DeWine when he brought up the notification of only the Gang of 8 and his reference that the statutory creation of the 8 deals only on matters of *covert operations* - NOT this stuff.
Moreover, I saw Graham on "The News Hour - Jim Lehrer" last night (transcript is HERE) and he's NOT liking any of the legal underpinings made by the B-Admin - and for very good reasons.
The illogical extension of this theory cited in this post is ONE of those problems of what DOES this REALLY MEAN.
But Graham sidesteps (or rather avoids entirely) the CRUX issue:
- IF these calls involve Americans here in the states and are routed via American *switches* on American soil - They equal surveillance of Americans with out A WARRANT. The Constitutional Crisis Graham professes to want to avoid is already HERE - and it covers the ART II claim to NOT need a WARRANT under the FISA laws or the Constitution's 4th Amendment. EVER. PERIOD. As long as they wrap it in a claim it's to Protect the Country it becomes their *National Security-Blankee.* :-)
I don't care what they choose to call the ART II Executive War Powers Thoery - it presumes that FISA is an unconstitutional limitation of those powers on its face (without ever having had a legal determination in the 28+ years of its enactment and updating) and that the 4th Amendment FALLs to the ART II Powers (which NO Court has ever determined is a valid Constitutional interpretation either.)
Whenever people come along and say things like "I think this scandal doesn't have real traction" or "the American people don't care about this," what they usually mean is that they hope that is the case, or that they don't care if the Administration broke the law and are projecting that indifference onto others. No facts support this dismissive attitude.
ReplyDeleteMaybe that's "usually" the case, but not in this instance. I've been following this blog since it's inception and could not possibly agree more with your arguments against the Administration's law-breaking and the danger such a theory poses to democracy. In fact, the primary point of my comment was to suggest that the Bush Adminisration, as evidenced by today's headlines about the thwarted attack on L.A., is once again sickeningly resorting to fear to squirm out of a troubled situation.
My premise -- namely, that the NSA scandal is not yet a full-blown scandal, and intuitively feels like it won't result in significant negative consequences for the Administration -- is simply a statement of what the political situation looks like to me. It's been tough to gauge. This blog, as well as some other blogs who have taken up this issue, like Balkin, Anonymous Liberal and Marty Lederman, etc., are all extremely persuasive and, to me, irrefutably correct. But when I venture out of the cocoon, I see apathy and saturation, and like you nicely explained yesterday, a perception that this is all about X saying "you broke the law" and Y saying "we complied with the law."
Your point today about the Administration lying about domestic eavesdropping was a good one. It seems true that the one thing people gleaned from this episode is that only international calls were monitored. That's been the Administration's main talking point, and it's been easy to understand. If it turns out they lied about this, I think a significant percentage of the "protect us at all costs" demographic will get sufficiently pissed off to energize this politically.
Finally, about this bit:
Quite the contrary - if you compare the arc of this scandal thus far to prior presidential scandals -- Watergate, Iran-Contra, Lewinksy -- both the speed and level of the public opposition, as well as the recognition on the part of the media of its seriousness, is levels beyond what occurred previously.
The fact that the NSA potential scandal has grown faster so far than these past major scandals isn't a terribly persuasive argument. This Administration's past missteps, like torture, for instance, also had immediate media buzz, but then fizzled. I agree with your post yesterday that this will only become a scandal if the citizens of this country persist in holding the Administration accountable. Now that I'm thinking about it, that post -- which argued that unless some powerful force among the citizenry is generated, this will die -- impliedly agrees with my premise that it is not yet a scandal, and unless something drastic happens, its epitaph will read "misstep" rather "impeachment of President Bush."
Never having had much power, I don't know what it's like, but apparently, judging from history, it's addictive, and once a group with the reins in their hands shows an inclination to go trotting down this road, are there any examples where they rode their horses back to the stable of their own volition?
ReplyDeleteOn the contrary, soon they're galloping faster and faster. Laws? Who needs laws when you can have that feeling of freedom and power, blowing through your hair.
Oh. my. God. That comment from Senator 9/11, er, I mean Senator Sessions in the article is the funniest thing I have heard in a long time. Especially after I watched him pander this morning on the Senate floor, reminding everyone of the 3,000 people who "lost their civil rights" on September 11th. I think he's about to spin himself into liftoff.
ReplyDeleteI agree that, in some ways, this does not yet feel like a full blown scandal. But I believe it is going to get much bigger.
ReplyDeleteThe Administration has been forcing hundreds (if not thousands) of government employees, both career and appointees, and military personnel to break the law over the past several years. There are just too many potential whistleblowers around for this all to go away. As these folks start to talk (or leak anonymously to the press), it encourages and compels others to come forward.
You can already see this snowball effect happening. It started with Abu Ghraib. Then leaks on renditions, secret prisons, now the wiretapping scandal. The Administration is having to spend more and more of its time trying to plug the holes in the dam.
I think President Bush made a terrible mistake when he practically accused the NY Times of treason for breaking this story. I have a feeling the Times knows a lot more and they will out that information for sure.
ReplyDeleteLEP
After watching the CSPAN segment Glenn did with Prof. Turner, it seems a new strategy would be to try and engage Glenn and others into an argument of legal minutia. Personally, I find it interesting to look at ex Parte Quirin and the Truman steel case and actually read the FISA law. But Turner and others know that if the battleground moves to "this case said x" and "that case said y" and "exclusive power is not inherent power" etc., etc., the general public will lose interest quickly. I got the sense that Glenn realized this at the time, and kept his points more general, and easier for non-lawyers to understand.
ReplyDeleteGlenn, not sure I am convinced by your point. If the bureaucratic obstacles in implementing FISA are creating the problems (I know, a big if), then the Bushies can simply claim that there are far fewer domestic al qaeda calls -- so few that FISA suffices.
ReplyDeleteI know that this doesn't touch their larger claims of power in this case, but your point seems to be little more than a "gotcha." Of course I take your point, but it doesn't seem to add up to much.
The Press seems to think Bush can wiggle out of this if the Polls show this to be popular. For some inexplicable reason, I don't get how in the world this can be an issue on popularity.
ReplyDeleteThe issue is not whether or not the public supports NSA surveillance programs. The issue is: does the president have the power to do this because of the congressional authorization to use force in the war on terror.
This hearing should be to decide whether or not a crime has been committed under existing laws.
We have mechanisms in place to change laws and create new ones. The president chose to circumvent these mechanisms. Whether or not the public supports his actions is irrelevant.
If the Press wants to parse the polls the questions more relevant are;
Do you believe the President can choose not to follow laws if he finds them inconvenient?
y/n
Do you believe the President can act in violation of existing laws and act in secret with no oversight?
y/n
Glenn said: Gonzales' denial that the DoJ has ever engaged in such a legal analysis is tantamount to an unambiguous denial that there are eavesdropping programs which entail warrantless surveillance on domestic communications.
ReplyDeleteDo ALL such possible activities (e.g.say military) fall under the DoJ ?
David Shaughnessy said...
ReplyDeleteI think that this scandal is still in its early stages and will continue to grow. I see that one after another the refuges and escape hatches are slamming shut for the Administration, just as their legal position deteriorates. Look at the skepticism greeting the maneuver to speechify the LA terrorist threat four years ago.
Well, maybe, but the GOP still controls Congress and they have a vested interest in not letting this scandal get out of hand.
Keeping that in mind, isn’t possible that Specter’s and Heather Wilson’s support for inquiry, and Specter’s soon to be proposed legislation will just give cover to what Bush has been doing, just making it legal?
So, yes, Bush should have told us what he was doing, but we now fixed it so it is compatible with FISA, we now have got it right, and no harm was done. Scandal averted. And Democrats who want to focus on the illegality of what Bush did will be accused of putting their Bush-hatred over their concern for national security.
Well, you get the idea. Why won’t something like that happen?
If the bureaucratic obstacles in implementing FISA are creating the problems (I know, a big if), then the Bushies can simply claim that there are far fewer domestic al qaeda calls -- so few that FISA suffices.
ReplyDeleteThe problems with FISA are not, according to the Administration, a function of its volume. The problem with FISA, they claim, is that it: (a) doesn't allow immediate eavesdropping because the AG still has to authorize warrantless eavesdropping and certify that they are likely to be able to get a warrant and (b) the "probable cause" standard is too high because sometimes there is a need to engage in eavesdropping when they have suspicions that someone is engaged in terrorist planning but can't meet the "probable cause" evidentiary burden.
Thus, under their stated worldview, FISA is a substantive impediment to necessary eavesdropping. Given that, it is hardly some "gotcha" game to ask why they would remain within the constraints of FISA for domestic communications. If FISA really is this ancient relic that is too slow and cumbersome for modern terrorist communications, what possible justification is there for allowing it to impede our eavesdropping powers for domestic communications?
Speaking of polls, here's the latest Associated Press-Ipsos poll: Public Support Rising for NSA Surveillance Program.
ReplyDeleteThink Progress used the January version of this poll to point out the flaws of a poll cited by right-wingers, btw.
(Results from early January in parentheses)
Should the Bush administration be required to get a warrant from a judge before monitoring phone and Internet communications between American citizens in the United States and suspected terrorists, or should the government be allowed to monitor such communications without getting a warrant?
_Should be required to get a warrant, 50 percent (56)
_Should be allowed to monitor without a warrant, 48 percent (42)
_Not sure, 2 percent (2)
If more J.Q. Publics "approve" of warrantless spying, there are fewer to scream about it to Congress. This can't be allowed to become a trend.
I think there is another possible explanation for the "international only" approach. I think they knew they'd never get the enough of the bureaucracy (Justice and NSA) to go along with that sort of approach. Remember the leaks came from people involved in the program. If they had tried to do this on purely domestic communications, somebody would have blown the whistle much earlier. Gonzales answer probably should be interpreted as "We were afraid we'd get caught and maybe even lose the 2004 election."
ReplyDeleteI'm relatively new to giving a rat's ass about politics - but this admin seems to be creating a lot of people like me. So, to illustrate my ignorance, a quick question - hasn't foreign surveillance always bee the province of NSA and CIA? I was under the impression that domestic surveillance would be within the purview of the FBI.
ReplyDeleteCould that in any way explain the hedging which was so obvious at Gonzalez' hearing?
I mean, I certainly have no inclination to assign admirable traits to these guys, but it *would* be a distinction that the A.G was talking only about NSA waork, and had no desire to direct attention to FBI programs, no?
I'm not sure how much further you can trust Specter to go on this. He's said that the "go to FISA legislation" he's proposing will not be "punitive" but will be "forward looking". So, he'll probably kill the investigation of the Judicary Committee and simply sweep it into the secrecy of FISA.
ReplyDeleteThe WaPo article about the two FISA judges who were worried about the constitutionality of the NSA spying mentioned James A. Baker in it as expressing doubts about the program. He's the same guy who earlier argued against one of the amendments changing FISA.
Interesting contradictions like this makes a scandle roll on......
And of course, there is still this big question about why General Hayden thinks that the 4th Amendment means "reasonable cause" as he stated in the press conference which started off this whole unravelling of the Adminstration's position.
I hope the Dems in the Judicary Commitee got it together enough to at least get these two questions asked.
I think you are wrong in trying to use Padilla as touch base. You have Specter saying things like "the Spying is unconstitutional." So the question I find myself asking is, "If the government breaks the law, who is responsible for it?"
At Reason's Hit and Run Blog (and someone please explain how to link URL's in the comments)
ReplyDeletehttp://www.reason.com/hitandrun/2006/
02/white_house_wil.shtml#012572
they suggest that Congress will "solve" the discrepancy between the administration's actions and the FISA law by legalizing them.
For F@ck's sake, why don't we just repeal the 4th Amendment and be done with it.
Glenn writes:
ReplyDeleteIt's impossible to imagine how someone who opposes the Administration's actions will come to change their mind...
It matters not whether the opponents of the president's actions will "change their minds." What matters is whether anyone is going to do anything about it.
The likelihood of any congressional action to thwart the president's actions is nil. Democrats know that the public supports the president. Republicans know the public supports the president. The courts have consistently upheld the president's descretionary powers under Article II.
No one is going to do a single thing about this now or later, despite the hand-wringing and whining of those who cannot understand that most Americans are willing to sacrifice certain civil liberties when we are faced with mortal threats from our enemies.
Glenn, I can think of only one explanation to solve the puzzling either/or conundrum you (finally) highlight. Let's get real. It's inconceiveable that the government is letting known Al Queda members communicate with each other in this country without monitoring their calls. Yet the government has allowed (instructed)Gonzales to say that the President never authorized such domestic to domestic monitoring. I personally think it highly unlikely that Gonazles would be instructed to out and out lie, considering how carefully he chose his words and how thorougly he was tutored prior to testifying. Therefore, the only situation which would eliminate the first preposterous situation
ReplyDeleteof not listening in when an Al Queda member talks to another in this country but would make Gonzales' testimony literally, at least, truthful is that the monitoring is going on, but the President didn't authorize it. Or didn't OFFICIALLY authorize it, meaning another "friendly" government is doing it, or a rogue element, working with Cheney et al, is doing it, people outside our official intelligence community. Since Gonzales limited his denials to "The PRESIDENT didn't authorize it", that doesn't mean someone else high up in our government did not set up such a program, probably farming it out to an overseas location. Those familiar with technology would be able to comment on whether, because of switching devices, etc., a foreign group could intercept domestic to domestic calls, and if it is possible, I believe that is what is being done. If not, a rogue element in this country (Jack Bauer style) is doing it, under instructions from Cheney and Rumsfeld, bypassing deliberately bypassing Gonazales and Bush (who probably know, but not "officially") to keep their hands clean. It's more than reasonable to think that those in charge of intelligence would want to keep the President's hands clean. It's almost mandatory, in fact, when extra legal things like this are done, as anyone who watches "24" knows. So it's being done, all right, but it isn't technically "authorized" by the President himself, and maybe "our government" is not doing it. But they're behind it all right, and are sharing in the information gleaned. Maybe that's why some of those detainees are there so long, and nobody has been arrested.
Although FISA would give warrents for domestic to domestic calls with probable cause, the reason this secret rogue program was no doubt developed is that most of these domestic to domestic calls would not qualify for probable cause. They are broad sweep snooping, of the type that WOULD upset most Americans, and that's why he said there would be criticism. Yes, there would be.
Another option is that Gonzalez was lying about not doing it. This administration only admits something after they've been caught doing it (unless they leak it themselves for political advantage). Since no one has yet found out that they're doing it, why not lie and trust that you won't be found out? That this hasn't worked for them in other areas (as far as we know - who knows what else they're doing that they have not been caught for doing yet?) would be unlikely to stop them now. Especially when they appear to think they truly have a right to do what they want and lie about it.
ReplyDeleteNo one is going to do a single thing about this now or later, despite the hand-wringing and whining of those who cannot understand that most Americans are willing to sacrifice certain civil liberties when we are faced with mortal threats from our enemies.
ReplyDeleteEveryone knows that.
Madison knew it:
"Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad"
Hamilton knew it:
"Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.
...
The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power."
And Orwell understood it, too.
The only difference is these men sought to put in place institutions that would prevent that from happening. Today's fear-mongers embrace it.
The other catch 22 is the announcement on the LA story today. It makes no sense. If true, the White House has a far larger problem on their hands. Here's why the RNC knows they have no defense, and are spewing forth non-sense. It is time for the states to compel congress to act: Lawfully remove this man from office; or the Congress will be removed. Either way, Bush's political legacy has run its course.
ReplyDeleteThe language employed by Gonzales is incredibly precise for a reason. The fact that DOJ hasn't conducted a legal analysis doesn't mean anything. Almost certainly somebody like David Addington has done some legal analysis on domestic spying and how it is all alright.
ReplyDeleteAddington thinks whatever the president does is alright. And then some.
If you want a possible perverse parallel for what might be going on with language and its ability to hide a larger truth as it reveals a smaller one, consider what Pentagon spokesman Larry DeRita would regularly say about defense department personnel engaging in "torture." His seeming total denials were only for the DOD, and quite notably excluded any actions by the CIA.
WHAT MIGHT BE out there the President has not yet described, confirmed, or authorized?
Jeez, even Biden gets it.
The truth is NSA is only one agency that could possibly be surveilling citizens in this country. If this administration gets a chance to keep burying its secrets, we might not know what that agency does for decades. Homeland Security has its ADVISE data mining program.
You want some government speak?
DHS officials are circumspect when talking about ADVISE. “I’ve heard of it,” says Peter Sand, director of privacy technology. “I don’t know the actual status right now. But if it’s a system that’s been discussed, then it’s something we’re involved in at some level.”
These guys live in a cynic's paradise. Nobody admits anything unless they absolutely have to. Smaller clear admissions hide far darker schemes. The price of liberty is vigilance, so everyone's eyes and ears are needed not just to see the terrorist around the corner, but the danger behind the smiling faces of those who would save us. Oy.
You present a false dicotomy of only two choices. There is at least a third that purley domistic AQ to AQ calls are being monitored via FISA or some other warrented means. Just look at the number of FISA warrents issued, it has grown considerably, and they must be using them for someting one would think.
ReplyDeleteThere is a third possibility: that domestic surveillance without warrants is occuring, but without explicit authorization, and that could be occuring with or without the knowledge of the Attorney General.
ReplyDeletePresident's Radio Address, December 17, 2005
ReplyDeleteAnd the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.
The first American victim to be slaughtered by al Qaeda was the Wall Street journalist Daniel Pearl, who was murdered in February 2002 in Karachi, Pakistan.
From April 2004, 22 have suffered his horrendous fate in Iraq.
Foreigners beheaded in Saudi Arabia: On May 29, Al Qaeda attacked foreign oil offices and installations in Khobar City and took hostages. An official news blackout was imposed and the number and names of the hostages taken and! murdered was never released. Sources estimate that 9 foreign employees were murdered by beheading after being identified as non-Muslims and separated from Muslim hostages. This group is believed to include one American, as well as Italian and Indian nationals.
Paul Johnson, American electronics engineer, was murdered June 2004 in Riyadh. Source
Madrid Train Attacks
The "terrorist surveillance program" isn't working so well for you, is it, Mr. President? Mad props on that LA thing, though.
It's interesting to note that for several years, MCI routed a huge amount of its domestic traffic through Canada, ostensibly as a way to extort a significant amount of money from other carriers.
ReplyDeleteIt's not out of the question, to me, that this would provide an opportunity to surveil traffic that has both ends in the US.
Thad Beier
Logic and, God knows, Rovian politics, argues that there is warrantless wiretapping going on re: purely domestic calls, if only to avoid such hypotheticals as:
ReplyDelete"So let's see if we understand this -- the following call would be monitored: Terrorist A who's at JFK calls Terrorist B at Heathrow and says: 'Achmed, is your plane still taking off in two hours? Mine is as well, so far it's on time, so you'll be crashing into Big Ben just about the same time I'm crashing into the UN building.'
But the following call would not be monitored-- Terrorist A at JFK calls Terrorist B at Dulles, does the same coordination, except the targets are the UN building and the US Capitol respectively?
What does Dear Leader have against the Capitol building?"
hume's ghost:
ReplyDeleteTo do links, use <A HREF="http://your.link.com">Linking Text</A>
Glenn:
ReplyDeleteGonzalez comment that AG office 'had not an analysis' could be true and yet leave the true scope of domestic surveillance hidden in several ways...
- the president could have directed no analysis, bypassing Justice Dept. just as FISA court.
- The Defense Dept. could be doing such surveillance using the Administrations argument for "War Powers"
- Homeland Security ADVISE data mining
Glenn...
ReplyDeleteYou'd be taken more seriously if you weren't so obviously a Bush hater.
Bush hating is so...yesterday.
Great post, hume's ghost. I hope you post that on Huffington Post, Volokh Conspiracy, and other sites.
ReplyDeleteCrooks and Liars has a clip of the Daily Show on the Gonzo hearing. They focused on Gonzo's other often repeated phrase which goes: We're happy to listen to your ideas...
ReplyDeleteThat is as telling as saying: under this program...
There is no doubt their interpretation of co-equal is that of: you do what you do, we do what we do. Vs: We have our part of the responsibilities and you have yours as it relates to governance.
I think Gonzo's We're happy to listen... is confirmantion of their mind set. A mind set of aristocracy.
If they say they haven't thought about it, they probably haven't. They don't feel the need, they just do. That little phrase is the perfect phrase to used to get across to our fellow citizens the aristocratic attitude of this administration. We the people have been lead to not like "elitist". The repubs have done a good job of it. And, the people are under the impression that Bush is just a regular Joe.
This little phrase shows the people that the prez shows little regard for what most people consider a just as important equal power: the congress. This little phrase is the wording that would produce the emotional condemnation that is needed to push this to where the people will listen to the full reasoning as to why the spying is such an alarm sounding about the danger to our governments structure. It is the phrase that used properly would shatter that warm feeling the public has of Bush being just like them.
I agree with piscivorous.
ReplyDeleteAt least three things could be happening with suspected al-Qaida to al-Qaida calls within the United States:
1. The Bush administration is ignoring them.
2. The Bush administration is intercepting them without warrants.
3. The Bush administration is intercepting them with warrants.
Zack:
ReplyDelete"Keeping that in mind, isn’t possible that Specter’s and Heather Wilson’s support for inquiry, and Specter’s soon to be proposed legislation will just give cover to what Bush has been doing, just making it legal? So, yes, Bush should have told us what he was doing, but we now fixed it so it is compatible with FISA, we now have got it right, and no harm was done. Scandal averted. And Democrats who want to focus on the illegality of what Bush did will be accused of putting their Bush-hatred over their concern for national security."
This point was bothering me today at work, listening to the NPR story on today's new briefings. The thought it may not just go away, but somehow be used as a cudgel. Republican Congress may just make noises about the seriousness, and then legislate the President the authority, then beat Dem's over the head for opposing cosmetic ass-covering by saying they oppose security or some goddamned thing. It really is their modus operandi.
Frank:
"1. The Bush administration is ignoring them.
2. The Bush administration is intercepting them without warrants.
3. The Bush administration is intercepting them with warrants."
I'm wondering if, under #3, the reason maybe they could do these under FISA is that, in comparison to 'the program described' in the hearings, it is fairly less intensive...whereas the internal/external tapping has really metastasized into a huge huge operation, drawing in so much that there is no way they could have done warrants even if they wanted to. If that's the case, I wouldn't see any consolation, and think things would remain where they stand now, violation of FISA, failure to inform Congress according to law, and rampant disregard for the 4th amendment. However, I'm just a construction worker, not a lawyer.
Glenn, you say the following exchange between Gonzales and Sen. Schumer "provides an almost absolute assurance from Gonzales that there is no warrantless eavesdropping program for domestic communications":
ReplyDeleteSCHUMER: Has this come up? Has it happened?
GONZALES: Sir, what the president has authorized is only international phone calls.
The question immediately comes to me: Are there any surveillance programs the President has not authorized?
Another option is that Gonzalez was lying about not doing it.
ReplyDeleteThis is the most likely option. He lied shamelessly during his confirmation hearings, when he was under oath -- and so far he's gotten away with it, even though Feinstein caught him at it. He knows that in this administration he can lie with impunity and there's nothing anybody can do about it. I think that's why he's always flashing that smarmy smirk.
-- Basharov
In reading the Constitution, I can't help but note that if the Gonzales/Yoo/Bush/Cheney/Rove types were on the other side of this coin -- and trying to muscle all the "inherent" power and "authority" the LEGISLATIVE BRANCH is "given" by the Constitution's plain words, to the exclusion of the other Branches, these guys would be declaring the United States Congress "Ruler of the World"... And the President and the Judiciary would be relegated to taking out Congress's trash...
ReplyDeleteThe difference in scope of the enumerated roles in the Constitution in favor of the PEOPLE via the Legislative Branch, vs. the Executive Branch, is that wide and that deep.
I really question whether the Founders would have characterized the role of "Commander in Chief" as a "power" they were bestowing, or as a "duty" that they were delegating. To my mind, it is mostly the latter. Hero-worshippers, and authoritarians of the stripe of Cheney and Bush naturally consider the CiC responsibility to be akin to the President's Coronation, or his Crowning Glory. Which is the sort of Hollywood and John [Marion Morrison] Wayne pseudo-macho behavior and belief-system that has marred and damaged more than a few generations of American males (and a whole lot of the females as well), seems to me.
The question that needs asking is this: "Are we allowing another foreign intel agency to spy on US domestic calls?"
ReplyDeleteI watched Abu. My impression from his strained construction and repeated references to "the program the President has confirmed" is that the program the President is talking about IS NOT THE SAME as the program the Times as talking about.
ReplyDeleteClassic misdirection.
Mommy: "who broke the vase in the living room?"
Child: "I'm sorry mommy, I accidently spilled my glass of milk."
Admit you did SOMETHING to divert everybody's attention from the MUCH bigger something they were about to catch you at.
Which, sadly means teh Judiciary Committee hearings are just kabuki unless Comey, Goldsmith, Tice et al ar given immunity and allowed to tell all
Apparently these issues are causing widespread division in the Conservative Party. At the Conservative Political Action Conference, there was widespread dissatisfaction with Bush, a lukewarm reception for Cheney, and much talk about these surveillance abuses. Glenn should try to line them up as part of the coalition for change. Also, the reauthorization of the Patriot Act is a disgrace. The Democrats are just as bad as the Republicans, a bunch of cowardly careerists. Looks like the only thing that can save this country is getting Feingold elected. With a scandal a day coming out (today's statement by the ex CIA official about the disinformation about the war in Iraq is chilling), it's hard to figure why the Democrats are not more successful in eliticing outrage from the public. Maybe because they are not outraged, as they are the enablers of all that is happening. Can you imagine what would happen if the Democrats spoke with a single voice and protested all these things which are going on, and voted against them as a solid block? But no, they still believe the Bush propaganda machine that national security is a winning issue for the Republicans.
ReplyDeleteA little late to the party here but I do think there is a third possibility. Suppose for a minute that the program Gonzales is talking about is a huge vacuum cleaner type operation that picks up everything that comes into or goes out of the U.S. Which is then sorted by machine for known numbers, catch words, etc. Then the possibles are looked at by analysts. The likeliest are then targeted for further listening and if that bears fruit the info is used by Justice to go to FISA for a warrant. Voila you have your Al Qaida to Al Qaida monitoring in the U.S. Of course the original monitoring would probably be illegal and the subsequent info useless in court because of illegally obtained info to get the warrant. But mabe that might explain the sudden resignation of the FISA judge right after all this became public. How many judges have to be present for a warrant to be issued? If only one, that judge might have been aware of what was going on and let it happen anyway. All just speculation of course, but interesting speculation none the less
ReplyDeleteThe issue of domestic warrantless wiretaps is an easy one. If the DOJ statement is true, then the job has been outsourced or privatized.
ReplyDeleteWhether the job is being done for us by the British or a private contractor (See, Southcom),the job is being done.
During the Echelon discussions in the not to distant past it was brought up that the US was frequently making trades of "back door" information to avoid limits on domestic surveillance.
I seem to recall that, while president, Jimmy Carter ordered the NSA to stop using the British Government Communications Headquarters (GCHQ) to obtain information on political targets.
I'm sure such an order could easily be altered by a stroke of a pen.
With our GWB's cozy relationship with Blair, this would be an easy task to accomplish and would cure those pesky Fourth Amendment issues.
Alaskan lawyer's observation is the only one which is consistent with the statements of Bush, Gonzales, and the DOJ's document, if we assume those are all literally true.
ReplyDeleteThis job is probably being outsourced. I had thought it was Israel that was involved, because of AIPEC and all the neocon influence in Bush's inner circles, but maybe Alaskan lawyer is right and it's Britain.
Who authorized this? Bush? Libby? Cheney? Addington? Cannot be anyone other than those four. Libby or Addington might have been the point men, to keep it away from the Presidency.
I find it hard to believe the President is getting away with violating the civil liberties of terrorists, who certainly have a right to privacy when discussing how to kill us.I feel so much smarter now that I've been enlightened by you geniuses.
ReplyDeleteGonzales wasn't under oath. Can we credit any denial he seems to have made?
ReplyDeleteWould a man who thinks torture is necessary for national security have a problem with mere lying?
ReplyDeleteCould the NSA "data mine" without Telco's providing call informtion to them? Why not subpeona all telecommunication carriers to testify (under oath) to Congress about their participation with NSA and how they route domestic to domestic calls?
ReplyDeleteI'm sure that shareholders and customers of these companies would appreciate knowing which of them are providing their personal information to the government without a warrant.