The Power of the Jump™: Experts Say Bush’s Surveillance Program Was Legal
(Note: “The Power of the Jump”™ is a semi-regular feature of this site, documenting examples of the Los Angeles Times’s use of its back pages to hide information that its editors don’t want you to see.)
There has been a lot of talk lately about President’s Bush’s secret surveillance program. Some of the more overheated rhetoric starts from the assumption that the program is illegal, and is fueled by angry self-righteousness.
Wouldn’t it be something if many legal experts believed that the program might actually be legal?
Well, guess what? Apparently, they do, according to a story in today’s L.A. Times. But you’d never know it if all you read was the front page. The editors bury the nugget on the back pages, almost as an afterthought.
But wait, you say. Doesn’t that sound, in the abstract, like a newsworthy story, worthy of prominence? I mean, here’s this program that the entire liberal media appears to believe is patently unconstitutional. If the legal experts disagree, shouldn’t that be Page One material?
Sucker! Important stories aren’t important if they help the president! Treating them as important just makes you look like a cheerleader!
The relevant story is on Page One of today’s paper, and is titled Legal Test Was Seen as Hurdle to Spying. The theme of the story is that Bush did an end run around the courts because the legal tests applied by courts might be too stringent:
WASHINGTON — Since Sept. 11, 2001, an obscure but powerful tribunal — the Foreign Intelligence Surveillance Court — has been a solid ally of the Bush administration, approving hundreds of requests allowing government agents to monitor the conversations and communications of suspected terrorists.
So why did the administration go around the court in devising its most secret surveillance program?
Top Bush administration officials said Monday that a controversial domestic eavesdropping program they ordered up after Sept. 11 without the court’s permission reflected the “inefficiencies” of going to a judge and the need for a more “agile” approach to detecting and preventing terrorist attacks.
But they also indicated that they had a more fundamental concern: the tougher legal standard that must be met to satisfy the court. The 1978 law creating the secret tribunal, the Foreign Intelligence Surveillance Act, authorizes intelligence gathering in cases in which the government
[See Intelligence, Page A32]
Do you think Joe and Jane Reader are faithfully turning the pages all the way to Page A32 to read the rest? Or do you think they will be moving on to the story about the closure of Marilyn Monroe’s childhood orphanage?
For the intrepid readers who make it to Page A32, the article cites “growing congressional and public concern” about the secret program, and quotes a law professor asking of presidential power: “Where is the stopping point?” A series of Supreme Court cases that are not on point are cited.
Finally, deeeeeeeeeep down in the story, right above a headline that screams U.S. Spying Plan Lacked Congress’ Scrutiny, Leading Democrat Says, we see this:
Bush and Gonzales also said Congress had authorized such extraordinary measures in the wake of the Sept. 11 attacks. The “Authorization for Use of Military Force” adopted by Congress said the president could “use all necessary and appropriate force” to capture those who planned the attacks and “to prevent any future acts of international terrorism against the United States.” Several legal experts said this was a stronger justification for Bush’s action.
“I think the authorization of use of military force is probably adequate as an authorization for surveillance,” said Cass Sunstein, a University of Chicago law professor.
It’s 22 paragraphs before we get there. The story doesn’t tell us exactly how convincing the experts find this argument, but the quote from Sunstein suggests that at least some of them find the argument pretty convincing. I’m not 100% certain I buy it myself, based on what I know — but then, I’m not a legal expert.
At the very least, the fact that there is a real question out there deserves a hell of a lot more prominence than the editors gave it this morning.
P.S. I mentioned this this morning as part of another post, but I thought it really deserved its own post.
Past presidents and the NSA
Sigh … the more that comes to light about past presidents and their ‘eavesdropping’ the more this so-called ’scandal’ – which has been reported to the extent you’d think it was worse than Watergate – becomes much a…
Sister Toldjah (3e6668) — 12/20/2005 @ 7:30 pmHarry Truman on experts (paraphrasing):
Andrew (08ba2c) — 12/20/2005 @ 10:20 pm“They’re people who are afraid of learning anything new, because that would be admitting they weren’t experts in the first place.”
More NSA analysis. Because really, who can't get enough of this stuff?
Cass Sunstein, on Bush's NSA program:The discussion of wiretapping by the President, without court approval, raises a number of important and interesting legal issues. According to CNN, Attorney General Gonzales recently said, "There were man…
protein wisdom (c0db44) — 12/21/2005 @ 10:43 pmAnd if you read all the way to the end of the article you read this:
So both Dems and Republicans were willing to give the President what he needed but the President didn’t want to ask. Instead he just took what he wanted.
Mike S (61fdf4) — 12/21/2005 @ 11:57 pmMike S, if Article II of the Constitution gives the president the power to conduct the kind of surveillance at issue, why should he surrender that power to Congress? It’s not a question of “taking what he wanted,” rather, it’s a question of what the Constitution empowers the president to do. Bush is only claiming powers that Presidents since FDR have asserted are found in the constitution (which the courts have acknowledged). Congress didn’t have the power to delegate this authority to the president because the president already had it under Article I.
TNugent (6128b4) — 12/22/2005 @ 6:17 amThe value of the new media
If this were 1985, and President Reagan had authorized warrantless electronic surveillance, the only sources of information we’d have about the legality of such would come from the completely unbiased editors of The New York Times and The Washin…
Common Sense Political Thought (819604) — 12/22/2005 @ 7:07 amSo TNugent you see no need for a court order for a wiretap. You think Bush can just go ahead and do it without any oversight? You see no danger here? All this talk about court orders is just liberal bull undermining the US?
Charlie (8ea405) — 12/22/2005 @ 1:54 pmHey Patterico do you think this wiretap without court order is legal?
Charlie (8ea405) — 12/22/2005 @ 1:59 pmCharlie, yep, so do Jamie Gorelick and John Schmidt, both members of the Clinton justice department. Please see citation of John Schmidt’s article in the Chicago Tribune here.
Several articles also cited here.
Harry Arthur (40c0a6) — 12/22/2005 @ 2:06 pmAnd what do you say to those that disagree and say a wiretap requires a court order?
Charlie (8ea405) — 12/22/2005 @ 2:19 pmGee, I don’t know, maybe I’d say that reasonable people can reasonably disagree on this one? Maybe I’d say that this didn’t seem to be a problem in earlier admistrations and all of a sudden it is now? Maybe I’d just wait for them to read John Schmidt’s article, Byron York’s several articles and Jamie Gorelick’s testimony before congress and ask them for their response? You know, kind of like a civil discussion sort of thing.
What would you suggest I say? No, wait, I know the answer to that one. Bush is evil, the republic is doomed and we’re sliding down the slope into fascism. How was that?
Harry Arthur (40c0a6) — 12/22/2005 @ 2:33 pmCharlie, wiretaps for purposes of national security often do not require any court order. There are lots of exceptions to the warrant requirement under the Fourth Amendment, and they include national security surveillance in some circumstances. Where national security, not criminal investigation, is the purpose of the surveillance, the political process provides the checks and balances to a far greater extent than the judiciary. That’s why members of the House and Senate — from both parties — were briefed on this program from the outset and have been kept informed of it since then. There’s an assumption, not altogether justified, as we’ve seen recently, that members of the House and Senate from the opposition party will put the national interest ahead of partisanship and will cooperate with a President in protecting the nation. The real surprise here is that Jay Rockefeller was able to keep his big mouth shut for so long. At least we think he did. I wouldn’t rule out the possibility that he informed the Saudis and the Syrians of this program at the same time he told them that the President had decided on invading Iraq shortly after 9/11.
TNugent (6128b4) — 12/22/2005 @ 2:52 pmHarry I owe you an apology.. You did respond to me on the other issue on this site and I jumped the gun and did not read it. Sorry but your answer to how and why Bush can be shown to be a liar is there. Its not relevant to this thread so I will not post it here..
Meanwhile folks who think Bush does not need a court order to wiretap..please explain this
Charlie (8ea405) — 12/22/2005 @ 3:28 pmhttp://thinkprogress.org/2005/12/20/bush-caught-on-tape/
Hey Patterico do you think this wiretap without court order is legal?
I’m starting to think so, yes.
Patterico (806687) — 12/22/2005 @ 4:37 pmNo you don’t. I believe I answered you in sufficiently snarky terms to have set things straight. 🙂
#13. Another bridge too far for Bush. Don’t know why, but I can only believe that Bush often gets incredibly bad advice suggesting that he apologize or disemble when, … really, the situation doesn’t call for it. The 16 words in the State of the Union speech are another example. He does best when he just stands up and defends his position like he’s been doing the last few days, instead of trying to please everyone. Sometimes one just has to say “I see how you can believe that, but I just disagree …”
On the other hand, if in his mind he believed he was answering a purely domestic law enforcement surveillance question then the answer is truthful – he does need a warrant. I just don’t much like that answer – too much like “it depends on the meaning of ‘is'” for my taste.
Harry Arthur (b318a5) — 12/22/2005 @ 7:58 pmOops! #15 should have been addressed to Charlie. I was not challenging Pat’s statement. After all, this is a legal question and we all know I am no lawyer, though that seldom keeps me from pontificating on things legal.
Harry Arthur (b318a5) — 12/22/2005 @ 8:13 pmInteresting discussion by Power Line linked by Pat on his accompanying thread Power Line “Colloquy” With NYT Reporter. Power Line unambiguously asserts that all relevant legal precedent supports the fact that the president is justly exercising powers conferred on his office by the constitution.
Harry Arthur (b318a5) — 12/22/2005 @ 10:25 pmHarry Tell me clearly. Bush said he needed a warrent now we find out he didnt get them. Does that make him a misleader or a liar?
Charlie (8ea405) — 12/23/2005 @ 4:12 amHere is another example of Bush lies
This is from one of the Senators involved in writing the legislation NOT giving Bush he powers he now claims.. God if you folks are more interested in defending Bush than in defending our Constitutional freedoms..we have lost the war and much more..
This is from Tom Daschle ( ya!! I know..he is a Democrat and therefore dismiss this as more lies..)Its from todays Washington Post ( yup another lying liberal newpaper out to do the President evil!!!) Notice especially the last line. ( which I am sure was taken out of context, right??)
n the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to “deter and pre-empt any future acts of terrorism or aggression against the United States.” Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize “all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided” the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.
Charlie (8ea405) — 12/23/2005 @ 4:17 amJust before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words “in the United States and” after “appropriate force” in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.
The shock and rage we all felt in the hours after the attack were still fresh. America was reeling from the first attack on our soil since Pearl Harbor. We suspected thousands had been killed, and many who worked in the World Trade Center and the Pentagon were not yet accounted for. Even so, a strong bipartisan majority could not agree to the administration’s request for an unprecedented grant of
authority.
The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress — but at the time, the administration clearly felt they weren’t or it wouldn’t have tried to insert the additional language.
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Big Lizards (fe7c9d) — 1/8/2006 @ 1:10 pm[…] The editors appear blissfully unaware that this is a hotly contested issue. Perhaps they missed what their own paper printed about the issue on December 20, because it was buried on Page A32: Bush and Gonzales also said Congress had authorized such extraordinary measures in the wake of the Sept. 11 attacks. The “Authorization for Use of Military Force” adopted by Congress said the president could “use all necessary and appropriate force” to capture those who planned the attacks and “to prevent any future acts of international terrorism against the United States.” Several legal experts said this was a stronger justification for Bush’s action. […]
Patterico’s Pontifications » L.A. Times Editors Need to Learn How to Read Their Own Paper (421107) — 1/15/2006 @ 11:42 am