...it's not dark yet, but it's gettin' there...

December 19, 2005

Problem Solved

Bush seems to have his own "no controlling legal authority" problem now. He's straining the war powers and the congressional use of force resolution to justify his domestic wiretapping without a warrant. Well, after one semester of Con Law, i think i have found a way out of this mess. Simply invoke the Commerce Clause. It means whatever you want it to mean, you can use it to do anything, and Courts love expanding it. Only problem is getting it to cover executive action, but i'll leave that up to Alberto. Let him earn his keep and give some good advice for once.

Posted by annika, Dec. 19, 2005 | TrackBack (0)
Rubric: annikapunditry


I had a "heh" moment when I double-taked this bit:
"Courts love expading it."

Expading it?! Is this some fancy legal term I've got to look up on Wikipedia? Expading it? Uhhh... Oh. Wait. Never mind.

Posted by: gcotharn on Dec. 19, 2005

At his press conference today, Bush revealed that he is intercepting calls from Al Qaida types to the US before they reach the US. The constitution does not limit him when enemy operatives call into the US.

Posted by: Jake on Dec. 19, 2005

Sorry. i did that post on my phone. Proofreading is hard on the small screen.

Jake, i think Bush's problem is not the Constitution, but the 1978 Foreign Intelligence Surveillance Act, which i admit i have not read. However, from what i have heard, it seems like Bush could have, and probably should have, followed that law by at least using the retroactive approval process.

There may be some reason why that was not wise, and there was a line in the press conference that made me think Bush had a reason but couldn't say because it might reveal too much about the specifics of the case.

Let me also say, at the risk of disappointing my Libertarian visitors, that i have absolutely no problem with the government doing what it did here. Eavesdrop away, i say. It's better than getting blowed up.

But it was a stupid move, politically. Especially given that the Patriot Act may now be in jeapordy because of it. Gonzales, or whoever, should not have advised going around FISA. They should have assumed that there would be a leak, as there always is.

Posted by: annika on Dec. 19, 2005

Check out a funny site dedicated to the absurdity and satire nature of saying “It’s All George Bush’s Fault!”


Notta Libb

Posted by: Notta Libb on Dec. 19, 2005

No no, my point is not that typos happen - I could care less about them. My point is that I thought, for several moments, that "expading" must be a real legal concept, and that I would have to look it up and figure out what it was. I was "hehing" at myself.

Posted by: gcotharn on Dec. 19, 2005


Rare, but I don't agree with your analysis on this one. Hewitt has been doing a great job on this story from both a constitutional and political perspective. However, I believe that this is a circumstance where reasonable people that tend to agree may find themselves disagreeing.

Posted by: Blu on Dec. 19, 2005

You don't mean to tell me there was any doubt that HH would not be totally in support of the administration in this case?

Posted by: annika on Dec. 19, 2005


Posted by: Kyle N on Dec. 19, 2005

Yeah, I have actually posted here complaining about HH supporting the Bushies no matter what. I just happen to feel he is compelling on this matter...in fact, he is discussing the topic at this very moment.

Posted by: Blu on Dec. 19, 2005

I was sorta against the president, then i read the time article linked on drudge. It was total crap, it actually came out and called the president a dictator (or at least likened him closely to one).

Werther or not the president was right or wrong, i do belive he did what he did in the name of national security.

I heard on glenn beck that the people that were monitored were in the cell phone of a high ranking Al Quedea member.

Posted by: cube on Dec. 20, 2005

Although I'm generally skeptical of using Wikipedia, the entry for the FISA is decent.


For a balance to most pieces written in the MSM that assume we are mindless sheep, (or see page 31 of the WashPost - Kristol's piece)

Thank You for Wiretapping
Why the Founders made presidents dominant on national security.

Wisconsin Democrat Russ Feingold wants to be President, and that's fair enough. By all means go for it in 2008. The same applies to Lindsey Graham, the South Carolina Republican who's always on the Sunday shows fretting about the latest criticism of the Bush Administration's prosecution of the war on terror. But until you run nationwide and win, Senators, please stop stripping the Presidency of its Constitutional authority to defend America.
That is the real issue raised by the Beltway furor over last week's leak of National Security Agency wiretaps on international phone calls involving al Qaeda suspects. The usual assortment of Senators and media potentates is howling that the wiretaps are "illegal," done "in total secret," and threaten to bring us a long, dark night of fascism. "I believe it does violate the law," averred Mr. Feingold on CNN Sunday.
The truth is closer to the opposite. What we really have here is a perfect illustration of why America's Founders gave the executive branch the largest measure of Constitutional authority on national security. They recognized that a committee of 535 talking heads couldn't be trusted with such grave responsibility. There is no evidence that these wiretaps violate the law. But there is lots of evidence that the Senators are "illegally" usurping Presidential power--and endangering the country in the process.
The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President's power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.
The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."
On Sunday Mr. Graham opined that "I don't know of any legal basis to go around" FISA--which suggests that next time he should do his homework before he implies on national TV that a President is acting like a dictator. (Mr. Graham made his admission of ignorance on CBS's "Face the Nation," where he was representing the Republican point of view. Democrat Joe Biden was certain that laws had been broken, while the two journalists asking questions clearly had no idea what they were talking about. So much for enlightening television.)
The mere Constitution aside, the evidence is also abundant that the Administration was scrupulous in limiting the FISA exceptions. They applied only to calls involving al Qaeda suspects or those with terrorist ties. Far from being "secret," key Members of Congress were informed about them at least 12 times, President Bush said yesterday. The two district court judges who have presided over the FISA court since 9/11 also knew about them.
Inside the executive branch, the process allowing the wiretaps was routinely reviewed by Justice Department lawyers, by the Attorney General personally, and with the President himself reauthorizing the process every 45 days. In short, the implication that this is some LBJ-J. Edgar Hoover operation designed to skirt the law to spy on domestic political enemies is nothing less than a political smear.
All the more so because there are sound and essential security reasons for allowing such wiretaps. The FISA process was designed for wiretaps on suspected foreign agents operating in this country during the Cold War. In that context, we had the luxury of time to go to the FISA court for a warrant to spy on, say, the economic counselor at the Soviet embassy.
In the war on terror, the communications between terrorists in Frankfurt and agents in Florida are harder to track, and when we gather a lead the response often has to be immediate. As we learned on 9/11, acting with dispatch can be a matter of life and death. The information gathered in these wiretaps is not for criminal prosecution but solely to detect and deter future attacks. This is precisely the kind of contingency for which Presidential power and responsibility is designed.
What the critics in Congress seem to be proposing--to the extent they've even thought much about it--is the establishment of a new intelligence "wall" that would allow the NSA only to tap phones overseas while the FBI would tap them here. Terrorists aren't about to honor such a distinction. As Secretary of State Condoleezza Rice said Sunday on NBC's "Meet the Press," before 9/11 "our intelligence agencies looked out; our law enforcement agencies looked in. And people could--terrorists could--exploit the seam between them." The wiretaps are designed to close the seam.
As for power without responsibility, nobody beats Congress. Mr. Bush has publicly acknowledged and defended his decisions. But the Members of Congress who were informed about this all along are now either silent or claim they didn't get the full story. This is why these columns have long opposed requiring the disclosure of classified operations to the Congressional Intelligence Committees. Congress wants to be aware of everything the executive branch does, but without being accountable for anything at all. If Democrats want to continue this game of intelligence and wiretap "gotcha," the White House should release the names of every Congressman who received such a briefing.
Which brings us to this national security leak, which Mr. Bush yesterday called "a shameful act." We won't second-guess the New York Times decision to publish. But everyone should note the irony that both the Times and Washington Post claimed to be outraged by, and demanded a special counsel to investigate, the leak of Valerie Plame's identity, which did zero national security damage.
By contrast, the Times' NSA leak last week, and an earlier leak in the Washington Post on "secret" prisons for al Qaeda detainees in Europe, are likely to do genuine harm by alerting terrorists to our defenses. If more reporters from these newspapers now face the choice of revealing their sources or ending up in jail, those two papers will share the Plame blame.
The NSA wiretap uproar is one of those episodes, alas far too common, that make us wonder if Washington is still a serious place. Too many in the media and on Capitol Hill have forgotten that terrorism in the age of WMD poses an existential threat to our free society. We're glad Mr. Bush and his team are forcefully defending their entirely legal and necessary authority to wiretap enemies seeking to kill innocent Americans.

We live in a world of extraordinary technological and scientific change. The world is simply moving so much faster today than at any point in any of our lifetimes; and a good bet is that this sense of speed—indeed, this sense of acceleration—will only continue. The Administration and Congress need to solve the problems the changing security environment creates instead of ad-hocing it on the fly.

FISA was written in a time of nation-state adversaries with much reduced communication tools than today. The Geneva Convention was written without much thought to non-state actors or adversaries who don't even recognize rules of warfare. Instead of writing endless memoranda debating the nuances of bending existing procedures, how about standing up, saying things are different, and I need (the UN, Congress, etc.) to fix it?

Posted by: Col Steve on Dec. 20, 2005