12/22/2005

10 Responses to “More Links on the Surveillance Program”

1. This may be off topic, but I can’t let you ignore this Patterico.

   Bush’s ruthless disregard for the law and his power grabs are finally becoming big problems for him. When even Michael Luttig is “not amused” by Bush’s subversions of the law, you know something is dreadfully awry.

   Does Boss Dumbo want to bring back the days when a King could throw anyone in jail on a whim for as long as he wants and answer to no one?

   Tillman (1cf529) — 12/22/2005 @ 8:40 am

   
   

2. Well, wait a second.

   First you people bitch that Padilla isn’t getting a lawyer, a trial, etc., and then, when they try to give him one, you bitch that doing so is “subversion[] of the law?”

   Christ, there’s no pleasing some people. Also, the wiretaps weren’t illegal, much as, lo and behold, the disclosure of Valerie Plame’s identity was not, itself, a crime.

   Just because you don’t like it doesn’t make it illegal.

   Angry Clam (fa7fff) — 12/22/2005 @ 8:46 am

   
   

3. I’m just loving it that even Mike Luttig doesn’t like it! I don’t think you’re getting the picture Clam.

   Here’s more from Drum’s post:

   It’s worth reading Luttig’s whole opinion. It’s not very long and it pretty clearly indicates that Luttig and his colleagues were seriously pissed. They want to know why the government claimed it was absolutely essential to national security that Padilla be detained indefinitely and then suddenly changed their minds without so much as an explanation. They want to know why this change of heart came only two business days before Padilla’s appeal was scheduled to be filed with the Supreme Court

   Tillman (1cf529) — 12/22/2005 @ 8:52 am

   
   

4. I almost posted on that this morning, Tillman, but I just ran out of time. I usually blog in the mornings in less than an hour, and I noticed that one late, when I had to start getting ready for work. I do find it interesting, and I think it shores up the argument that the Administration took a cynical position re Padilla.

   Keep in mind that I do have a day job and I’m not a news service.

   Patterico (050019) — 12/22/2005 @ 9:23 am

   
   

5. I think that you might want to be careful about telling me about what’s going on in the federal courts.

   Just because, you know, stuff.

   Angry Clam (fa7fff) — 12/22/2005 @ 10:17 am

   
   

6. I apologize Patterico for accusing you of ignoring the ruling. This did just come out yesterday, after all.

   Tillman (1cf529) — 12/22/2005 @ 10:37 am

   
   

7. OK, at the risk of sounding like a Drum ditto-head, what’s the use in having the FISA court if the Preznit can just by-pass it at will?

   Tillman (1cf529) — 12/22/2005 @ 12:02 pm

   
   

8. December 19, 2005, 1:34 p.m. Why Bush Approved the Wiretaps
   Not long ago, both parties agreed the FISA court was a problem

   But there’s more to the story than that. In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court. Even later, after the provisions of the Patriot Act had had time to take effect, there were still problems with the FISA court — problems examined by members of the September 11 Commission — and questions about whether the court can deal effectively with the fastest-changing cases in the war on terror.

   People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. “It takes days, sometimes weeks, to get the application for FISA together,” says one source. “It’s not so much that the court doesn’t grant them quickly, it’s that it takes a long time to get to the court. Even after the Patriot Act, it’s still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check.” And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.

   Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. Investigators wanted to study the contents of Moussaoui’s laptop computer, but the FBI bureaucracy involved in applying for a FISA warrant was stifling, and there were real questions about whether investigators could meet the FISA court’s probable-cause standard for granting a warrant. FBI agents became so frustrated that they considered flying Moussaoui to France, where his computer could be examined. But then the attacks came, and it was too late.

   December 20, 2005, 8:12 a.m. Obstacle in Chief
   Sen. Carl Levin (D., Mich.) does all he can to hamper the administration in the war on terror.

   December 20, 2005, 9:46 a.m. Clinton Claimed Authority to Order No-Warrant Searches
   Does anyone remember that?

   December 21, 2005, 11:47 a.m. Bill Clinton and Warrantless Searches
   Yes, he believed the president had such authority.

   Perhaps this will help with “context”.

   Harry Arthur (40c0a6) — 12/22/2005 @ 1:27 pm

   
   

9. “The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes,” Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, “and that the President may, as has been done, delegate this authority to the Attorney General.”

   “It is important to understand,” Gorelick continued, “that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities.”

   Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against “a foreign power or an agent of a foreign power.”

   Remember Jamie Gorelick, 9/11 Commission member?

   It seems the president wasn’t exactly acting without precedent. It also seems that the president wasn’t exactly acting with ruthless disregard for the law or making a power grab as has been alleged above.

   Harry Arthur (40c0a6) — 12/22/2005 @ 1:38 pm

   
   

10. John Schmidt, an associate attorney general in the Clinton Justice Department, agrees in this Chicago Tribune article.

    He had this to say in summary:

    FISA does not anticipate a post-Sept. 11 situation. What was needed after Sept. 11, according to the president, was surveillance beyond what could be authorized under that kind of individualized case-by-case judgment. It is hard to imagine the Supreme Court second-guessing that presidential judgment.

    Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.

    But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept.11. I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack. That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again.

    Harry Arthur (40c0a6) — 12/22/2005 @ 1:50 pm