Tuesday, December 20, 2005

# Posted 12:57 AM by Ariel David Adesnik  

SO WHY DIDN'T REID AND PELOSI OBJECT? This Week still won't provide transcripts, but George S.'s interview with John McCain is really worth listening to. (Podcast here.)

Again and again, Stephanopoulos kept pressing McCain to justify how the administration could circumvent the foreign intelligence courts when authorizing wiretaps. No matter how times Stephanopoulos repeated the question, McCain kept giving the same answer: the White House consulted with both the Democratic and Republican leadership in Congress before making its decision.

Pelosi has spoken of voicing "strong concerns" when initially consulted about the policy, but that doesn't sound very persuasive. If she didn't object or disagree or contradict, then she should just say that she accepted the decision.

Nonetheless, McCain -- like Condoleezza Rice and Lindsey Graham -- admitted that he couldn't provide a clear legal justification for what the administration did.
(22) opinions -- Add your opinion

Well, Senator Jay Rockefeller, the ranking Democrat on the Intelligence Committee, did object:

If you believe anything the White House says, I can give you a confidential briefing about an investment that the White House says is "a slam dunk." I even have a White House lawyer who will give you an opinion.

Just send me $1.0 million and I will let you in on the secret. You will become rich beyond your wildest imagination. Just trust me. It's true.

Just email me at: iamsogullibleideservetolose$1million.com

Anybody who defends what Bush has been doing is a complete idiot or a fascist. There are no other explanations.
A little more courtesy would be appreciated. I can handle the cheap insults, but such language does tend to lower the level of discussion as a whole.
Was the notification of Pelosi, Rockefeller, et. al. required? Was it just to give them a heads up? If they had objected would it have meant anything? I don't think that it is even clear what they were told.
Pelosi also objected at the time:
Let's assume Pelosi was as appalled by this as I am. What, precisely, was she supposed to do?
I'm with djw. I don't understand what the Congressional Senators were capable of doing, since they couldn't talk to lawyers, aides, colleagues, etc. Bush clearly wasn't asking for an endorsement- he was just informing them about what he was doing. This is confusing...
Pardon me - but what is going on here.

Senators were told about what was happening - ages ago. Newspapers were made aware ages ago. All ... All ... said and did nothing. Nothing.

And now?


Despite all this information - provided to US Senators by Bush we have a wave of claims of SECRET wire taps etc... ILLEGAL actions ...

Yeah like Bush is going to break the law but carefully inform his political opponents before hand.

Just call me a naive limey, but come on really, 'US government defends its citizens against terrorists' ... shock horror!!

It might be worth reminding you all that the on 7 July, 4 British guys blew 50 people to bits on the underground. ... You know what? My main complaint is that there was not enough good old fashioned surveilence of my fellow citizens by an intelligence service which knew something was going to happen.
Can anyone identify anything that a GOP president can/not/ do under the prevailing dispensation? Can he take pix of Hilary in her undies? Can he stick a fork in Ted Kennedy's cat?
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If you insist on me calling you a naive limey, I will.

First, Pelosi, Reid and Rockefeller are not just 'political opponents' they are Congressional leaders and members of oversight committes with the right to know and the duty to ask questions.

Second, "It might be worth reminding you all that the on 7 July, 4 British guys blew 50 people to bits on the underground. ..."

Yes and on July 21 your police shot to death a Brazilian electrician late for work. No questions asked. Note to self: avoid being late to work in London.

Third, loss of rights does NOT mean increase in security. "He who sacrifices freedom for security deserves neither." - Ben Franklin. Far from being weak because of our rights, we are a strong country because of our rights. This is something that the odd Libertarian would grok but that a Republican could probably never fathom.

I don't mind surveillance. I don't mind wiretaps. I do mind them without court oversight because I don't TRUST the government, and I especially don't trust Bush.
Major tenants of our law and legal system as well as the perception in our society focuses on intent. Murder and manslaughter differ only in intent. Mr. Bush will survive and actually come out smelling like a rose in this if he is able to show that the intent of these wiretaps etc. was purely national security. If he starts dicing words ("what is, is" anyone) we will get a preview of president cheney real soon. By the way don't be naive in thinking that the government isn't engaging in domestic spying daily. They always have, they always will. They just usually won't get caught. Your right to privacy largely goes out the window the minute you get a social security number.
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I couldn't get your podcast link to work. This link worked better for me.

And ABC News has apparently released the McCain/Stephanopoulos transcript to anyone willing to pony up $19.95.
(a) We have no idea what they said or didn't say, nor should we, since this briefing was apparently so confidential that Jay Rockefeller was not supposed to discuss it with his staff. They are supposed to keep this stuff secret, and apparently they did.

(b) (to anon): Are there "Major tenants of our law and legal system"? Do they get to rent particular statutes to live in? Can I rent one too?
John Hinderaker at powerlineblog.com cites the legal authority for why Bush did not break the law with his wiretaps. It was all patched up, anyway, in the Senate late tonight, though probably not to the satisfaction of Feingold, who is rather apoplectic on the subject... In the days of President Lincoln there were hundreds of innocent people victimized by the president taking the law into his own hands, held without being charged, etc. With Dubya there are no such innocents anyone can point to... Of course, to me anyone who thinks Bush could conceivably want to take the law into his own hands comes over as a bit unhinged.
From the ChiTimes article that Powerline links to:

"No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation."

First, this pretty much demolishes Bush's argument that Congress having access to the *same* intelligence information.

Has FISA been held unconstitutional? No. So Gorelick (in the article) can claim inherent presidential powers, but these haven't been upheld. Until then, FISA is the law.

Is Bush claiming this spying is not covered by FISA? This would be the familiar 'this isn't torture' redefinition defense. However, he doesn't need to say this yet and hasn't. The worst that will happen would be hearings. AG Gonzales is not going to press charges despite not getting the SC nomination.

Is Bush taking the law into his own hands? Let's see. His response to the NYTimes story was not, 'this is legal and this is why.' Instead from the AP story on Saturday: "Often appearing angry in an eight-minute address, the president made clear he has no intention of halting his authorizations of the monitoring activities and said public disclosure of the program by the news media had endangered Americans."

He did sound a bit unhinged.

The NSA is listening to phone calls made by a suspected terrorist in Dubai. A connection is made and the conversation turns to a specific terrorist act planned for the US. Then, horrors! the listeners realize the other end of the conversation is a US phone number. Are the NSA supposed to stop, turn off the tap and run out to get a court order before continuing to listen? Get real.
Yes, get real. The Dubai hypothetical is easily handled by the law as written:

According to FISA, §1805 Issuance of order, part (f) Emergency orders:


"Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—

(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and

(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance."

It is practical to follow the law. It was arrogant for Bush not to.
Daschle today said that Bush sought war powers "within the United States" just after 9/11 but was rejected by the Congress. Presumably, the war powers Bush sought would have allowed this sort of wiretapping. Bush has claimed that the AUMF resolution implicitly allowed warrantless wiretapping. If it did, why did Bush also seek these additional war powers in the US? Because he knew that Congress had not given him the authority to wiretap in the AUMF.
When did Bush not follow the law? Specifically? Or is this just another thing "everybody knows"?
This *is* just another thing that "everybody knows," that it is illegal to wiretap without court oversight. Bush broke the FISA law when he authorised the domestic spying program in 2002 specifically intending to circumvent the FISA court. The rationale for this appears to be another Yoo 'this isn't torture' secret legal opinion.

But even Republicans don't like this:

The Wall Street Journal

Bob Barr
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