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December 24, 2005

More on NSA Wiretapping

A quick roundup of links related to the NSA wiretapping controversy:

John Hinderaker at Power Line provides an excellent legal analysis of the controversy. Take the time to read the analysis. It's a great recap of the current state of statutory and case law on the subject.

I agree with Charles Krauthammer that it appears the President is really only guilty of making a political error in how he has handled the controversy.

Two new twists to the story appear in today's news. First, The New York Times breathlessly reports that the NSA's wiretapping program is much wider than first believed. The article's authors, Eric Lichtblau and James Risen, admit that they based their article on goverment sources who were leaking classified material. The admission is buried in the eighth paragraph of the story:

The current and former government officials who discussed the program were granted anonymity because it remains classified.

Based on the Valerie Plame precedent, shouldn't there be an investigation into who leaked this classified information? Of course, if the Justice Department were to start such an inquiry, Democrats would scream "abuse of power" and claim that the Bush administration was using the Justice Department to exact revenge on its critics.

The Times also fails to disclose that Risen has a book that is critical of the Bush Administration that is due to be published next month. Perhaps Risen has another motive for publishing this story besides simply reporting "news"?

Finally, The Associated Press tries to pull Supreme Court Samuel Alito into the controversy by publishing a story with the headline "Alito Defended Ordering Domestic Wiretaps":

Supreme Court nominee Samuel Alito defended the right of government officials to order domestic wiretaps for national security when he worked at the Reagan Justice Department, an echo of President Bush's rationale for spying on U.S. residents in the war on terror.

Then an assistant to the solicitor general, Alito wrote a 1984 memo that provided insights on his views of government powers and legal recourse _ seen now through the prism of Bush's actions _ as well as clues to the judge's understanding of how the Supreme Court operates.

The National Archives released the memo and scores of other documents related to Alito on Friday; the Associated Press had requested the material under the Freedom of Information Act. The memo comes as Bush is under fire for secretly ordering domestic spying of suspected terrorists without a warrant.

The memo in question actually has nothing to do with whether ordering domestic wiretaps is legal. The case in question has to do with Nixon administration officials who ordered wiretaps that were subsequently found to be illegal. Alito argues in the memo that the officials who ordered the wiretaps should be granted immunity since they were not illegal at the time that they were ordered. That's far from arguing in favor of domestic wiretapping as the AP article leads us to believe. (Hat tip: Michelle Malkin)

Posted by Tom at December 24, 2005 08:04 AM

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Many of the cases cited by Powerline occurred before FISA. The cases after FISA were either irrelevant to electronic surveillance (Hamdi), taken out of context or the decisions were extrapolated by Powerline to conclude something the court did not actually resolve.

For another take on most of the same cases, go to the following nonpartisan informational site (not a blog):

I already wrote about Krauthammer's opinion. He admits that the authority of the president to conduct what was previously considered to be illegal spying on American citizens depends on your interpretation of the resolution congress passed shortly after 9/11. As Krauthammer said, the resolution stated the President "should have 'all necessary and appropriate force' to fight Al Qaeda."

But what needs to be addressed by conservatives, who used to bloviate about big government and government interference in the lives of private citizens, is what power does that NOT give the president?

A lot of conservatives who don't fly the GOP flag above the stars and stripes have parted ways with you on this. They have stuck to their ideological beliefs, while people like you and Hinderaker blindly follow the Cheney administration into the abyss.

Some other thoughts to consider, courtesy of Russ Feingold:
1) In the 27 years since it was established, the FISA court has turned down only a handful of applications for wiretap orders. The number of approved FISA wiretap orders has jumped since September 11, 2001, with 1,754 FISA orders issued last year, up from 934 such orders in 2001.
2) FISA already addresses emergency situations where there is not time to get pre-approval from the court. It includes an emergency exception that permits government agents to install a wiretap and start monitoring phone and email conversations IMMEDIATELY, as long as they then go to the FISA court and get a court order within 72 hours.

In other words, the Cheney administration bypassed FISA to spy on Americans. There was no need, as stated above, since FISA almost always grants requests; the requests be granted extremely rapidly; and surveillance can commence immediately.

One of the judges on the FISA court resigned in disgust over this scandal. John Dean, Republican President Nixon's legal counsel, stated that this incident marks the first time a president has admitted an impeachable offense. It's kind of hard to question John Dean's credentials when it comes to making such a statement.

Posted by: dem at December 24, 2005 11:10 AM

I'm just reacting to here to one comment made by the post above. Since when did someone who committed a crime (John Dean) become the expert on whether or not a president committed an impeachable offense? Talk about dubious authorities!

Posted by: Nick at December 24, 2005 12:03 PM

That's a good point, Nick. I should have stopped before I got to Dean. It always upsets me when I see conservatives refer admiringly to the former criminals Oliver North and Chuck Colson, or to judgements on morality from the hypocrites Rush Limbaugh and Bill Bennett. Similarly, Dean is a poor point of reference for what is considered morally (not to mention legally) acceptable.

Nevertheless, for all the OTHER reasons I stated above, I think what he said is true.

Posted by: dem at December 24, 2005 12:28 PM

Rembering that the Times sat on the story for a year, it would seem that the administration would have been trying to find who leaked. Having said that, even if they had identified the source(s), it would be counterproductive to expose your covert ops just to slamdunk the leakers. Once the story broke, Judge Robertson "resigned". One could speculate that maybe he was persuaded to "resign" or that it could have been made inevitable due to having his security clearance revoked

Posted by: MerlinOS2 at December 25, 2005 04:36 PM

... you should check out Kirekegaard Lives for a good link collection on this story. Looks like an invaluable resource.

Posted by: Dominick at December 28, 2005 02:43 PM