Saturday, December 24, 2005

The Fourth Branch Of Government 

In two years of writing online, I've been fascinated by the interplay between the blogosphere, a virtual free market of information, and the corporate owned mainstream media. As repeated scandals have shown, our "free press" is anything but free. Sadly, many journalists believe the First Amendment places them beyond accountability either to the public or the law, granting them absolute license to withhold and distort information at will.

In many ways, the RatherGate scandal was a watershed event for the press. It represented the first breach in the wall between pesky fact-checking bloggers and professional journalists. But try as they might to repair the damage, information (like water) finds and exploits the tiniest crack and forces it open wide.

About this time last year, I argued that blogging was revitalizing democracy. It is also revolutionizing the news cycle. The current NSA tempest in a teapot illustrates this feedback cycle perfectly. The mainstream media were determined to cast this story as the civil rights crisis of the century, inconvenient truth be damned. But a deluge of facts and case law from righty bloggers and the conservative punditocracy quickly reached critical mass, making this all but impossible. They managed what the White House was unable (or unwilling) to do: create a virtual Radio Free America to smuggle information past the Iron Curtain erected by the largely liberal-leaning media.

In the past few days, it has come out that President Clinton used warrantless domestic searches absent a foreign intelligence goal. In fact, he wanted to use them in public housing projects. Where was the Congressional outrage?

President Carter, in 1978, used warrantless searches against two men suspected of spying for the Vietnamese.

As Noel Sheppard points out, both Carter and Clinton felt strongly enough about the use of warrantless searches to issue executive orders asserting their authority to conduct them. Jamie Gorelick, Deputy Attorney General under Bill Clinton, was quite certain of the President's inherent authority in 1994 when she assured the House Permanent Select Committee on Intelligence:

"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 and that the president may, as he has done, delegate this authority to the attorney general,"

But this week, she, like many other Democratic partisans, seemed to be suffering a mysterious short-term memory loss:

In an interview yesterday, Miss Gorelick acknowledged her testimony before Congress but said it pertained to presidential authority prior to 1994, when Congress expanded FISA laws. Left unanswered, she said, is whether that congressional action trumped the president's "inherent authority."
"The Clinton administration did not take a position on that," she said.

Oh really? Then what was Ms. Gorelick doing testifying to the House that the President had inherent authority in 1994? And why on earth would John Schmidt, associate Attorney General under Clinton from 1994-1997, cite exhaustive case law showing that not only did Clinton administration continue to exercise that authority subsequent to 1994, but the FISA court itself upheld the President's inherent authority to conduct such searches?

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

As to the other burning question in everyone's mind - why didn't Bush go to Congress - that seems to have been answered too:

"It's been briefed to the Congress over a dozen times, and, in fact, it is a program that is, by every effort we've been able to make, consistent with the statutes and with the law," Vice President Cheney said yesterday in an interview with ABC News "Nightline" to be broadcast tonight.

Bush and other administration officials have said congressional leaders have been briefed regularly on the program. Sen. John McCain (R-Ariz.) said there were no objections raised by lawmakers told about it. [Senate Minority Leader Harry] Reid acknowledged he had been briefed on the four-year-old domestic spy program "a couple months ago" but insisted the administration bears full responsibility.

But 'tis the season for hindsight, and 'most every Democrat in Congress is there with bells on:
Senate Intelligence Committee Chairman Pat Roberts says he's "puzzled" by that letter the committee's senior Democrat sent the vice president in 2003, expressing concerns over the NSA's domestic surveillance program — since he never heard those concerns at the time.

West Virginia Senator Jay Rockefeller released the letter this week and in it, complained that security restrictions kept him from consulting with experts on the program, while arguing that it raised "profound oversight issues." But Roberts says he recalls that Rockefeller voiced his support to the vice president at the time and as recently as two weeks ago. He adds that Rockefeller is releasing the letter at a "politically advantageous" time... and says he finds the move "a bit disingenuous."

It begins to seems the only ones still in doubt about the legality of the NSA wiretaps are the folks at the NY Times (whose timing, it turns out, is highly convenient...for them). But then scratch any high-profile NY Times story and you're likely to find a lot of high-falutin' journalistic principles a lucrative book deal:

In a recent oval office meeting, President Bush pleaded with both the executive editor and the publisher of The New York Times not to run the story on NSA wiretaps. Nine days later, the Times published the story anyway. But the paper had decided not to run the same story more than a year ago and a Times source tells The New York Observer that the piece was regarded as dead. So why publish it now?

Turns out, the story's author, Times reporter James Risen, was set to release a book detailing the NSA program next month, leaving the Times with the choice of publishing the story or being scooped by their own reporter. The Times' Bill Keller tells the Los Angeles Times the book had nothing to do with it, saying, "We published the story when we did because after much hard work it was fully reported, checked and ready and because we were convinced there was no good reason not to publish it."

No good reason not to publish it.

I suppose having the President of the United States argue the welfare of your country demands restraint doesn't fall under the national security "good reason" exception. This statement is simply stunning in its arrogance. Can this be the same newspaper that called for an investigation into the "outing" of Val Plame? Where's the outrage over the leakage of important national secrets? Where the shrieking to punish those who whispered that which never should have been revealed? More importantly, where are those vaunted "journalistic principles" we keep hearing so much about? You know, the ones Judy Miller went to jail for 85 days for, before "suddenly remembering" that first meeting with Scooter Libby that had been in her notebook all along, cutting a deal with Pat Fitzgerald, and oh-by-the-way, signing that lucrative book deal? Book deals crop up in so many conversations concerning reporters and journalistic principles these days. Too bad poor Scooter wasn't working on a tell-all expose of the White House. Seeing as the First Amendment seems to serve as a Get Out Of Jail Free Card these days, it might have saved him a good bit of trouble.

The press has long been referred to as the Fifth Estate. In America, they seem to be trying to levy the First Amendment as a shield that makes them into, in effect, an unacknowedged and unaccountable but nonetheless potent Fourth branch of government. It leaves them free to meddle in foreign policy, national security, and military affairs with impugnity. They leak our intelligence and military secrets and no one can touch them: the First Amendment makes them fireproof. They shield whistleblowers (and even people who aren't whistleblowers but who are, in fact, shielding lawbreakers) and they can't be touched. There is something seriously wrong with this state of affairs.

We have seen the media wield an increasing amount of power as television, radio, and the Internet have brought instant and often compelling mass communication into the homes of every American. With the power of the First Amendment behind them, however, the media are accountable to no one. They can print or say whatever they like: true or not, about public figures. Given the plethora of media outlets, it is virtually impossible to track down and scotch every falsehood. But unfortunately, media knavery is not always as benign as simply printing falsehoods. It often stretches into actively blowing federal investigations, as special prosecutor Patrick Fitzgerald found out during his first encounter with the often-forgetful Judy Miller:

This isn't the first time Plame prosecutor Patrick Fitzgerald has tangled with Judy Miller while investigating a leak out of the Bush White House.
A little more than a year ago, I reported on TPM how Fitzgerald had quite aggressively investigated another Bush White House leak in late 2001 and early 2002. Fitzgerald had been investigating three Islamic charities accused of supporting terrorism -- the Holy Land Foundation, the Global Relief Foundation, and the Benevolence International Foundation. But just before his investigators could swoop in with warrants, two of the charities in question got wind of what was coming and, apparently, were able to destroy a good deal of evidence.

What tipped them off were calls from two reporters at the New York Times who'd been leaked information about the investigation by folks at the White House.

One of those two reporters was Judy Miller.

No wonder the NY Times is crusading in favor of shield laws. Their reporters seem to get in an inordinate number of scrapes with the law, to say nothing of forgetting to read their own notebooks, having really lousy memories, and making multiple misleading statements to federal prosecutors... something that seems to result in charges if you're a White House staffer, but for some reason lets you get off scot-free if you are a professional journalist.

Several months ago people were killed when Newsweek ran an unauthenticated story about Koran flushing. The periodical was unapolagetic.

Now USA Today has recklessly revealed another damaging secret:

U.S. officials have secretly monitored radiation levels at Muslim sites, including mosques and private homes, since September 11, 2001 as part of a top secret program searching for nuclear bombs, U.S. News and World Report said on Friday.

The news magazine said in its online edition that the far-reaching program covered more than a hundred sites in the Washington, D.C., area and at least five other cities.

"In numerous cases, the monitoring required investigators to go on to the property under surveillance, although no search warrants or court orders were ever obtained, according to those with knowledge of the program," the magazine said.

An FBI spokesman declined to confirm or deny the U.S. News and World Report article and said, "We can't talk about a classified program."

But apparently what the FBI can't talk about, because it is top-secret, the press can. Because the press feels no duty to think of anything other than getting the story out. They have no independent way to check on whether the allegations are true - they simply published this story, knowing it was classified and might harm national security. Most of you have probably already seen Emily Francona's excellent commentary on the proper channels for dealing with intelligence oversight issues. There is an appropriate venue for handling matters like this, and a concerned news agency could even use blackmail (i.e., deal with this, or we'll go public) as a means gaining the needed assurances or bringing the matter to light. The problem with the press is that they have appointed themselves as another branch of government.

It is not their place to conduct intelligence oversight, nor to expose classified operations that they think may possibly not be conducted properly. They simply don't have enough knowledge to judge. Taking a tip from some insider who may or may not be giving them correct information and blasting it out to US News and World Report is not a responsible course of action.

Blowing two federal investigations, as Judy Miller did by tipping off the suspects, is illegal behavior and she should have been prosecuted.

And in the age of the Internet, bloggers, and citizen-journalists, perhaps someone can explain to me why we have, in effect, created special class of citizens who are exempt from their duty to cooperate with the justice system? If a private citizen witnesses a crime, it is his or her civic duty to report it. That this duty is sometimes difficult and/or dangerous does not excuse the exercise of it. It is not the place of a journalist to "shield" a private citizen, should he or she choose to shirk that duty or exercise it inappropriately or in the wrong venue. And the behavior of journalists has not been of such a high caliber that it entitles them to ignore their legal duties as citizens.

Professional journalists like Judy Miller are backed by giant corporations like the NY Times which are, even though they don't like us to remember it, profit-seeking ventures. They are hardly without resources, nor without a soapbox should the heavy hand of government come down upon them. Journalists do not check their citizenship at the door, or at least they should not do so.

That they have been allowed to do so all too often is one of the great tragedies of modern life. The First Amendment is important, but it should not be a trump card that outweighs all other considerations, creating, for instance, a professional class of persons who are for all intents and purposes above the law.

This is what is beginning to happen with the press. We have seen it happen with the Joseph Wilson affair, where a disaffected minor CIA functionary and her former ambassador husband took it on themselves to undermine the administration's foreign policy and weaken our credibility abroad. The press has become a conduit, through which anyone with a grievance can attack our own government with impugnity, be it a foreign power or disaffected persons within our own government. We need to take a long, hard look at the role of the media within this country, especially during wartime. Freedom of speech is a cherished right and I would not see it abridged.

But as Justice Robert H. Jackson famously remarked, our Constitution was never meant to be a suicide pact, and there is nothing wrong with placing some sensible limits on those in the media who are determined to behave as the enemy within.


By Blogger Gordon Smith, at Sat Dec 24, 08:46:00 AM:


Think Progress posted the debunking of the Gorelick myth you post and the warrantless searches myth you post.

Media Matters names Chris Matthews the "misinformer of the year" for his unending support for the Bushies. Fox News has the least facts of any network and openly roots for Bush Republicanism.

Please stop with the lefty media bashing.

Good Jeebus. Even the Rathergate thing that y'all wear around like last year's straight A report card pinned to your chests was based on the fact that the President was AWOL when he was supposed to be serving in the National Guard.

But you expend all this energy wagging your finger at the NYT, when that paper has fallen so far that no one with any sense believes them without another independent source. Hell, they sure helped get us into this war...

I also notice you quote the Washington Times, the Rev. Sun Moon's rabidly republican rag.

Stop with the 'liberal media' bullshit already. The media, so far as I can tell, is either slanted to the right or, like ClearChannel, just a bunch of bottom-liners who will air anything that people will watch. Truth is expendable when money is the reason.

When FoxCarolina aired their puff piece on nazi organization Stormfront and it was discovered that the reporter is a participant in the group, no one outside of the lefty blogosphere batted an eye.

If you really want integrity returned to journalism, then be prepared to scrutinize those you've come to agree with in the media as well.

You're not arguing for integrity, you're arguing that everyone ought to print only what is acceptable to the government.

Journalistic integrity works outside of government sanctions. I'm happy to say that Judy Miller is an utter twat and that anyone who repeats lies under the banner of objectivity ought to be drummed out of the business forever.


By Blogger Cassandra, at Sat Dec 24, 09:49:00 AM:

Screwy, the President was not AWOL at any time. Now you have really made me angry. Slander has a way of doing that.

If you have a single shred of openness to the possibility that you might be wrong on this issue, you might try reading this - it represents a lot of work and the word of a lot of National Guard veterans and other military folks who know a whole lot more about this issue than bitter Kerry partisans with an axe to grind.

The truth is, you most likely don't have the slightest idea what that term AWOL means, and neither do most of the idiots who keep bandying that term about. It is both irresponsible and extremely dishonorable to continue to do so without proof. My husband served as CO of a Reserve BN for two years. As such he knows that it is perfectly normal for Reserve and Guard officers to miss drill and then make it up (as Bush did) because they have real jobs and responsibilities in the private sector. I used to ask him every month how drill went. The normal criterion was, "did everyone show up", because not everyone could - often work commitments prevented them from doing so. And the truth is that there was no way to force people. Having Bush show up at the end of the war was even less important since his plane was being discontinued and to retrain him to fly another jet would have been both prohibitively expensive and a waste of time with the war winding down. They were sending people home at that time, if you bother to check what was going on back then - it was hardly a case of "oooh! wow- if he doesn't show up national security will be negatively impacted". The guy had already logged hundreds of hours in the cockpit in a squadron where people had died flying an unreliable jet. He had tried to get sent to 'Nam in the Palace Alert program but didn't have the hours yet. He was rated as a top pilot, performance-wise. The guy did his duty, whatever you may think of his choices. Let it go.

Bush drill record has been examined over and over again by people who actually work in admin in the Reserve and Guard (which any marginally competent person in the media who WASN'T biased would bother to do...and if you weren't biased, you might ask yourself: why didn't some of your sources do that???) and pronounced clean. But hey, don't let that bother you. Facts never should get in the way of a predetermined conclusion, let alone political peeve, should they?

And by the way, the question is NEVER, whether a SOURCE is biased. A biased source can still present correct facts and a cogent and correct argument.

The QUESTION is whether the FACTS are true or not.

Democrats love to try to impeach the source... blah blah blah...you can't believe that source, without ever bothering to address the basic truthfulness of the FACTS. Well that just won't fly - it is a fallacious and disingenuous argument and you know it.

The facts are simple in this case: warrantless searches have been performed in a domestic setting since the 1970's and the power of the executive branch has been upheld by the FISA court itself.

Are you disputing that fact?

Based on what fact, Screwy? The precedent is clear. I await your answer.

And I never argued that everyone ought to print what is acceptable to the government. If you want to refute my argument, refute what I said, not words you have put in my mouth.

And not just the Washington Times brought up the Gorelick thing - the Chicago Tribune did (which is why I quote it directly after the Gorelick quote,:

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

By Blogger TigerHawk, at Sat Dec 24, 10:06:00 AM:

Screwy -

I watch Chris Matthews a fair amount, and the idea that he is a supporter of the Bushies is just whacky. He tosses unbelievable softballs at opponents of the administration, and has been incredibly harsh on the Iraq war in particular. Any organization that would take the position that Matthews supports the Bushies self-destructs its own credibility. The very idea is absurd.

Similarly, the idea that the New York Times did anything to get us into Iraq is also laughable. There are but three reasons why anybody has complained about Judith Miller's WMD reporting. First, she is not an attractive personality and has made a lot of enemies in her own profession. Naturally, taking her down is delightful. Second, the press has an exagerrated sense of its own influence and indeed responsibility. The very idea that we would not have gone to war without the Times WMD reporting is a joke. In fact, most real supporters of the Iraq war, including most Democrats, knew and understood the real reasons for that war, and only turned on it when (i) Howard Dean emerged as a force within the Democratic party, and (ii) it was not the instantaneous success that our ADD culture demanded. Third, the left has taken to a fairly deliberate strategy of claiming that the mainstream media is in fact conservative, or at best neutral. This allows them to characterize political positions that are far to the left of the American center as "moderate." The risible idea that Chris Matthews is pro-Bush is one example. The lambasting of Judith Miller's Iraq reporting is another. The claim you hear that "Maureen Dowd is a Republican" is but another.

The truth is, the vast majority of the national media is far to the left of the typical American. Fox, which I agree is a bit goofy, resonates because it talks in terms that the typical American understands. Rather than acting as though religion were a strange affliction, for example, it assumes that people are religious (which, by and large, Americans are). Etc.

In any case, as successful as Fox has been, its viewership remains a drop in the bucket compared to the major networks, CNN and MSNBC combined. Add to that the non-US networks (BBC, Al-Jazz, etc.) and the influence of the "conservative" media is but a drop in the ocean.

The big point of Cass's post, which you did not address, is this: Do American journalists consider themselves Americans first, or "journalists" first? If forced to choose between their own professional advantage and America's national security, which do they choose?

This is only a question because journalists somehow consider themselves different from other professionals. Do we not think it horrendous when an American businessman chooses between the security of the United States and his own professional success? You'd be the first to complain (as you have many times on your blog). Why are journalists different? How are the business interests of the New York Times or the Washington Post or Gannett different from those of ExxonMobil? I don't think they are, but journalists do and prove it by their actions every day. As Col. Jessep might say, they sleep, write and profit under the blanket of freedom provided by our government and military, and then attack it at every opportunity. This is moral? Candidly, it turns my stomach.

Now, I do need to tweak Cass a little, as well. She has written several of these posts, all very eloquent in the measurement of the contempt of the press for the very people who allow it to thrive. But then, Cass, you stop just short of telling us what the remedy might be. Regulation? Great dangers lurk there as well.

My own remedy is to show my contempt. When American journalists undermine American national security, I call it betrayal. We should never let there be any suggestion that it is noble.  

By Blogger Cassandra, at Sat Dec 24, 12:13:00 PM:

Actually, I did answer that question in my post, if not explictly (and I think I *did* say it when I said the First Amendment should not be a shield against enforcement of existing laws). I think the remedy is to enforce the law - journalists should not be a protected class and they are not thereby relieved of their responsibility to obey the same laws as the rest of us. There is a reasonableness test that can be applied, just as in any other endeavor. The law is hardly a stranger to such hair-splitting exercises, as you should know.

If a journalist breaks the law (e.g. if they interfere with an investigation), the exact same penalty that would be applied to an *ordinary* citizen should apply.

If they reveal classified information, they should pay the penalty.

I'm confused. Bob Woodward didn't tell federal prosecutors what he knew for two years and he's running around. Judith Miller testified how many times and then went to jail because she wouldn't cooperate. She STILL hasn't given up her other source, but she's running around free.

Scooter Libber, on the otter heiny, is under indictment because he has made "conflicting and misleading statements" to the prosecutor. Well golly. That's wrong. But so is what Miller did - AND SHE STILL HASN'T GIVEN UP HER OTHER SOURCE, which is why she went to jail in the first place! Why is she not under indictment too?

I'll tell you why. Because she's a fricking journalist. I'm sorry but that really chaps my ass. So many other professionals are mandated reporters whether they want to be or not, yet journalists have this blanket exception that allows them to waltz around deciding what they *want* to report.

Bull. They are not above the law.  

By Blogger Cassandra, at Sat Dec 24, 12:18:00 PM:

And by the way, your contempt will not save the lives of those who die when journalists betray military or national security information.

Sorry, but I have a vested interest in seeing these people held to account, and all the contempt in the world doesn't cut it for me. People's lives are on the line, and these sanctimonious twits don't give a fig for your contempt. I'm sorry if I sound angry. I'm not mad at you, but that's the truth of it.

They are never held to account because they feel justified in their own eyes. They don't care what you think.

Neither do criminals, TH. We don't say: "Oh gee whiz - you murdered that poor woman, but I won't send you to jail. I'll just hold you in contempt.".

That's a silly standard. If you transgress against society, if you break the law, you must pay the price, and journalists are not exempt from the same punishments and duties as the rest of us.

It's that simple.  

By Blogger Cassandra, at Sat Dec 24, 12:27:00 PM:

One final thought:

But then, Cass, you stop just short of telling us what the remedy might be. Regulation? Great dangers lurk there as well.

You have put words in my mouth. You and I have gone here before and I said this was not what I meant.

And we don't avoid tough problems by throwing up our hands and saying "Oh! this is so hard we must avoid it altogether!"

Again, reasonableness. Apply the existing laws. The First Amendment is not a bar to obeying the law. Journalists are not a protected class. If there is evidence they have committed a crime and the government has proved it beyond a reasonable doubt then...wallah! You know they are going to raise all the standard defenses - let them.

If the evidence for the prosecution outweighs the exculpatory evidence, they should go to jail. Period. Just like any ordinary citizen. And perhaps *especially* if they are recklessly chasing a story and cause harm. That isn't a good defense - it's willful, wanton, and reckless behavior in the course of business, just as in any other endeavor.  

By Blogger Cassandra, at Sat Dec 24, 12:29:00 PM:

[deep breath] :D  

By Blogger TigerHawk, at Sat Dec 24, 12:57:00 PM:

A couple of small points only, since I am confined to replying by Blackberry, which is tedious.

I think that the mere application of current law to journalists is both underinclusive and overinclusive, but that's too long an argument for my thumbs. My bigger concern is that your approach puts too much faith in prosecutors. The ugly truth is that our laws have become so expansive that a creative prosecutor can file charges against almost everybody for something. They don't because it generally does not serve either a socially useful purpose or a political objective. Journalists, though, are very susceptible to political attacks. Do we really want every politically ambitious prosecutor going after any journalist that gets aggressive? I worry about the use of the criminal justice system to destroy the spirit of enterprise in this country, and I would also worry about the calculated use of the prosecution power to influence the press.

To me, the big excception is national security, and this is the area in which the current generation of journalists has departed from past practice.

Seperately, I very much like the expression "chaps my ass."  

By Anonymous Anonymous, at Sat Dec 24, 01:09:00 PM:

I am a lawyer and sort of a libertarian, but this constant leaking of national security stuff in the past few weeks is sorely trying my patience (but then my Dad and his Dad both worked for the agency which shall not be named). I sort of understand the First Amendment goals that protect journalists, but if Judith Miller went to jail until she caughed up her sources, I completely fail to understand why Scott Riser is not sitting in prison until he does the same - so THOSE people can be tried and sentenced to extremely long periods for disclosing classified stuff like this to journalists.  

By Blogger Cardinalpark, at Sat Dec 24, 01:41:00 PM:


I've shown plenty of contempt for some of your previous commentary. You've never gotten more than your about to get. In the past you've obfuscated and lied, but at least were generally clever.

Your recent commentary above was simply stupid. So stupidly wrong.

tsk tsk, as I say to my kids...  

By Anonymous Anonymous, at Sat Dec 24, 04:56:00 PM:

SH is correct, the Clinton/Carter claims have been debunked in the last day or so even by WSJ (gotta love though how Republicans are eager to malign Clinton except, of course, when it supports their "cause." Then you hold him up as some poster child for Truth and Justice, and say "See, the Great Bill Clinton did it too so," as if that makes it right or better or worthy.)

Bush's pronouncements that the WH "conferred" with Congressional leaders is yet another exaggeration, which strains the seams of credulity. Notifying members of congress (all eight of them) in a classified briefing that they cannot disclose publicly, nor question out loud, nor even discuss with counsel, is not a "check." Moreover, Intelligence committee members cannot give authorization to the president to break the law in the first place.

If the President believes that a law is unconstitutional, the solution is to seek a judicial declaration that this is the case –not to secretly break the law, and then, when exposed claim that he was allowed to break the law because it’s not a valid law anyway.

I wish someone would give him a blow job so we can impeach him, already.  

By Blogger Gordon Smith, at Sun Dec 25, 08:46:00 AM:

Hi guys...mind if I get back in here?

Chris Matthews has said (from Media Matters):

"[S]ometimes it glimmers with this man, our president, that kind of sunny nobility."
"Everybody sort of likes the president, except for the real whack-jobs, maybe on the left," adding, "I mean, like him personally."

and here's a list of 12 myths pushed by the corporate media and the right wing blogosphere regarding the illegal wiretaps (also from Media Matters):

"Timeliness necessitated bypassing the FISA court

Congress was adequately informed of -- and approved -- the administration's actions

Warrantless searches of Americans are legal under the 1978 Foreign Intelligence Surveillance Act

Clinton, Carter also authorized warrantless searches of U.S. citizens

Only Democrats are concerned about the Bush administration's secret surveillance

Debate is between those supporting civil liberties and those seeking to prevent terrorism

Bin Laden phone leak demonstrates how leak of spy operation could damage national security

Gorelick testimony proved Clinton asserted "the same authority" as Bush

Aldrich Ames investigation is example of Clinton administration bypassing FISA regulations

Clinton administration conducted domestic spying

Moussaoui case proved that FISA probable-cause standard impedes terrorism probes

A 2002 FISA review court opinion makes clear that Bush acted legally"

MM debunks the myths HERE.

Journalists ought to revive a spirit of objectivity and accountability to their readers instead of the government. A free press isn't going to jeopardize the nation. When you don't like the news, don't hate the messenger. Bush, I guess, just needs to get a leash on the leakers, eh? Seems there's a discipline problem in the White House, CIA, FBI, DoD, etc.... Maybe a lot of people in government are worried about the way it's being conducted, and they want to get the word out before it's too late to prevent an Orwellian nightmare from becoming institutionalized.  

By Anonymous Anonymous, at Sun Dec 25, 08:55:00 AM:

Look, let's take the gloves off and come out swinging. Every single American citizen should be spied on all the time. It's only for our own good. Just think how much safer we all are with the government knowing every detail of our lives. Doesn't it just make you all warm and fuzzy?  

By Blogger TigerHawk, at Sun Dec 25, 09:19:00 AM:

The last paragraph of you last comment, Screwy, is telling. I agree wholeheartedly with the first three sentences, as far as they go, and also the fourth. In war time, we need to get serious about prosecuting people who leak information that is damaging to national security. It sounds like you agree that it is time to get Pat Fitzgerald working on a new case, and if the reporters don't talk we should toss 'em in the clink until they cough up the criminals who did this.

As for your final point -- that the permanent bureaucracies have some sort of hidden duty to obstruct the policies of our elected officials -- you may want to think whether that is such a good point of view. Sure, today there are a lot of people in the State Department and the CIA, particularly, who have been undermining the foreign policy over which George W. Bush was re-elected, and that is just fine with you. But will you feel the same way when some other agency devotes itself to undermining the next Democrat in the White House?

To me, this is extraordinarily undemocratic, and appalling. It is especially so in that State and the CIA have been fighting to preserve the horrid, fascist, monarchial clown regimes in the region against the Bush administration's admittedly radical assault on them. Why? Because these regimes are what they lifetime civil "servants" know -- they are desperately afraid that the accumulated expertise of their individual careers (their relationships with this, that or the other absurd prince or brutal general) will be swept away. Then what will they do?  

By Blogger Gordon Smith, at Sun Dec 25, 12:05:00 PM:

I think democracy is messy, Hawk. For several years, the Bush White House managed to stay so leak free that the press corps got used to recycling RNC handouts as news. Compared to the lack of discipline in the Clinton administration, it was a real shock to see the executive branch speaking with a single, monotonous voice.

Now that the dyke is cracking a bit and we're getting a look at what the Bush administration is up to behind closed doors, it's comforting to know that our fourth estate is still solid enough to discover illegal violations of Americans' civil liberties.

I understand your point of view that these state secrets are secret for a reason and that exposing them jeopardizes operations. But I believe that the fundamental values of our nation - individual freedom, freedom of speech, freedom of the press, safeguards against unwarranted searches, checks'n'balances, limited executive power, separation of church and state, and so on - are forfeit if we fear the bogeymen more than we fear the loss of liberty.

First, protect the Constitution rights of every American. Then save their hides.

The world is watching. And they're seeing that we're giving up essential liberties in the War on Al Qaeda/Terror. They're seeing the illegal detentions, the savaging of the Geneva Convention, the domestic spying, etc.

In the war of ideas, these are non-starters and ought to be rejected outright.  

By Blogger Gordon Smith, at Sun Dec 25, 12:07:00 PM:

Oh...and CardinalPark...

Baby Jesus said to eat his placenta.  

By Blogger Cardinalpark, at Sun Dec 25, 05:49:00 PM:

SH - brilliant! as the ad says.

TH is so patient< God knows you don't deserve it you are a sniveller. and a moving target to boot. put on a uniform and go improve our country or something.

in the meantimelet me enjoy my vacation in cayman.  

By Blogger Gordon Smith, at Mon Dec 26, 01:20:00 AM:

Cayman? That sounds nice.

I reject the snivel argument and wonder what you hunt. Wanna call a truce and start over?

CardinalPark, if we can keep having this conversation, I'm sure we'll come to some common ground eventually, but the name calling is counterproductive. I withdraw the placenta remark and forgive you several times over for your own epithets.

Enjoy your vacation.  

By Blogger Cardinalpark, at Mon Dec 26, 09:32:00 AM:

SH - no need for a truce...i am not at war with you. i simply believe that your carping, intellectual dodgeball and factual misrepresentation require firm "calling out." and until you answer the first series of questions i asked of you months ago, until you acknowledge where you land philosophically and what tradeoffs that entails, i will find you to be a phony. i am certain there is plenty of common ground; but until you deal honestly with your own prejudices and biases, we won't have much to connect on.

happy new year.  

By Blogger Gordon Smith, at Mon Dec 26, 10:06:00 AM:

So high-handed...

What questions? I recall your having framed some questions in some sort "When did you tell your mother you were gay?" fashion.

Knowing that I'm no phony, I hate that you have an incomplete understanding of me. Where I stand philosophically? While I remain open to the forces of change and never settle finally anywhere, I take elements of various philosohies and put them into my cultural blender, sift them through a relativistic sieve and examine them in the light of a Hunter's Moon.

I think you've often been a mean-spirited person. I've never intentionally misrepresented anything here at your friend's blog, so it's too bad you think otherwise.

And, lastly, "deal honestly with your own prejudices and biases"? As a Child and Family Therapist, I may know a lot more about the subject than you'd care to get into. Your bias is pro-violence and your prejudices lie in fear, shall we discuss those first, or would you rather dwell on cursing my dark soul?  

By Blogger Cassandra, at Mon Dec 26, 12:43:00 PM:


I happen to like both of you greatly, and I really like all too few people I run into. So there must be *some* good in both of you, somewhere, even if neither of you can see it in the other :)

Strong opinions make for interesting and often rousing arguments, and watching the two of you tangle is more entertaining than most.

But the stars are aligned for peace this week. Baby Jesus is squinting at you from that pile of straw, the ox and ass are looking distinctly annoyed, and Judah Maccabee is standing next to them with some sort of flaming device. Trust me, you do not want to mess with this crowd - they will go all supernatural on your big behinds.

Peace, my friends :)  

By Blogger Cassandra, at Mon Dec 26, 12:55:00 PM:


In response to your comment:

It is important to be clear that an impeachment case, if it comes to that, would not be about wiretapping, or about a possible Constitutional right not to be wiretapped. It would be about the power of Congress to set wiretapping rules by law, and it is about the obligation of the president to follow the rules in the Acts that he and his predecessors signed into law.

I have already quoted several sections (which you - and Barron's - conveniently ignore) stating that the President believed he had Article II authority to conduct such searches as well as authority under section 1802.

The Constitution is the primary source of law in this country. All other law - including Congress-made statutes - are by their very nature subordinate to it. So unless there is a Constitutional right NOT TO BE WIRETAPPED, Congress has no right to MAKE a law that overrides the Constitution, now does it? That is why the particular statement you quote from Barrons is particularly stupid. It seems quite clear (at least to me) that there are two issues here:

1. There is a long history of Executive branch warrantless searches (and you tell me - what is more invasive? a physical search of your property without a warrant or a wiretap?) IN A DOMESTIC SETTING ON US CITIZENS EVEN WITHOUT FOREIGN INTELLIGENCE VALUE WHEN WE WERE NOT AT WAR AND HAD NOT BEEN ATTACKED, yet there was no talk of impeachment. Does Barron's address this?

2. If certain members of Congress were briefed on this program and had questions but did not ask questions about them because they were afraid of being called names THEN THEY SHOULD BE RECALLED FROM OFFICE BECAUSE THEY HAVE FAILED THEIR CONSTITUENTS.

I have heard a lot of dimwittery in my life but this just about takes the cake. During the last 5 years I've heard Harry Reid call the President a liar. I've heard people like Nancy Pelosi call him stupid, dishonest, crazy, arrogant, every shitty name in the book. And yet he has done what he believed right at every turn, despite their shameful and cowardly treatment of him. And he hasn't returned measure for measure though I would have been sorely tempted myself.

And these low-lifes won't do their jobs because *they* are afraid of being called NAMES?

Give me a break.

That speaks volumes.  

By Blogger Gordon Smith, at Mon Dec 26, 06:31:00 PM:

You, JarheadDad, I like.

First, I guess the 'pro-violence' really got your goat, and let me expand on it.

When multiple options are available and one chooses violence first, then one is 'pro-violence'. Pacifists occupy the other end of this long ethical and emotional spectrum. Most of us lie somewhere in between the two. Yes? George W. Bush and his confidantes lie awfully close to the bloody end of it.

Now, to your comment.

You're right, at one level you can't intellectualize war. I haven't experienced the horror, confusion, pride, or intensity of battle or serving in our military. On lots and lots of other levels, however, war is being intellectualized every day by the men who send them out to do the nation's bidding.

Without going back into all the reasons the War in Iraq never ought to have commenced, I understand that the only questions remaining in this conflict are (1) how do we foster a stable society; (2) how do we continue to influence the area for our national interest (re: Iran, Syria, Israel, etc.), national economy (maintaining a free flow of oil), and national security (finding and destroying terrorist cells, camps, training grounds, etc.).

I think it would be lovely if a flowering democracy took root in the New Iraq. But history and current events stand between the unstable reality and the flowery hopes of democracy loving patriots.

The men and women in Iraq are chasing an amazing dream, and they commit acts of heroism every day.

The war's best outcome would be a stable pro-Western democracy that other nations will see and wish to emulate.

This outcome is terribly unlikely as myriad forces array against it. History, corruption, terrorism, insurgency, instability, poverty, sectarianism, resentment, and waves of threats waiting for the day we draw down our troops far enough for them to make widespread efforts at powerseeking.

I think that our government should never have sent our forces there in the first place. And now I would like to see the President's stated plan work. Iraqi forces taking over as soon as possible as Iraqi politicians, in their own way, build a future government. Oil, electricity, water, medicine - all online and working to capacity. These are the things I'd like to see.

But that's not what I see. There's going to be decades of unrest, and our troops are smack in the middle of that hornet's nest, working feverishly for the sliver of a shadow of a chance that this could all somehow work out for the best.

I reject the pro-violence stance of our current government as I reject the pro-violence stance of terrorist organizations.

I support our men and women in uniform and hope, against all intellectualizing, that I'm wrong about how things are going to work out in Iraq.

Global cooperation, trampled upon by the arrogant, pro-violence Bush administration

Sorry to get you so worked up, especially with you being armed and all.

Again, Tigerhawkers, you are very kind to let me troll around here making mischief. You're all a credit to Right Blogistan.

At some point I'm going to have to write on my blog some more...  

By Anonymous Anonymous, at Mon Dec 26, 07:57:00 PM:

A few remarks here. There is a provision in the FISA act for warrantless searches on American soil -- if the searches do not affect US persons. This is not necessarily a contradiction in terms.

Since US Persons are American citizens and those with permanent legal residence inside the US (and various associations thereof), foreign nationals in the US without permanent residence would presumably fall into the category of searches which can be authorized by the Attorney General alone. These could include, say, Mohammed Atta (who was here on a student visa), or the Russian delegation to the United Nations, or some such, I'm guessing.

That, I think, is probably at the root of some of the confusion -- Clinton and Carter did authorize warrantless searches, but the MediaMatters thing SH linked to suggests that they weren't of Americans.

On another note, FISA only requires warrants "under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes." I recall from my college civil liberties class, that there is a distinction between searches that require a warrant, and searches that can be considered "reasonable" without a warrant. So I suspect the legality of presidentially ordered searches (under this law, and independent of constitutional issues) may hinge on whether they could be considered reasonable ... and whether those surveilled can have any reasonable expectation of privacy.  

By Blogger Cassandra, at Tue Dec 27, 05:44:00 AM:

Anonymous, do you mean to suggest that the people living in American public housing projects that President Clinton wanted to use warrantless searches on weren't American?

*How extremely interesting*

Or could it be that that obviously unbiased Media Matter site left that critical fact out of their "analysis"?

Hmmm.... I wonder. Because I remember that little news story quite well. I was there. And so do a lot of other people. It was a big deal, because if Junior is living with Grandma because his parents are crack addicts and he gets caught with illegal drugs, Grannie gets kicked out of public housing...err...just like we do in the military. Because we have fewer civil rights than the general public and we are subject to warrantless searches every day of our miserable lives even though our husbands and sons fight and die to keep your sorry butts safe from the horrors of such a fate. Zounds...how *do* we live with it? Sometimes I wonder. It sucks being us.

Do you have a "reasonable" expectation of privacy in your home? You do, but most of us don't if we live in military housing, as I have for much of the past 25 years.

How about on an unsecured line when calling overseas and talking to a terrorist in time of war? And which is more intrusive? A PHYSICAL SEARCH in which phyiscal evidence can be seized (and never returned) and you lose your home, or a wiretap in which the worst that can happen is that you get hearsay evidence or tapes which courts almost always disallow into evidence, *especially* if they are obtained without a warrant?

But since this falls under the "if a Democrat President does it, it's not a violation of your civil rights" rule, this couldn't *possibly* be a problem, could it?

I didn't think so.  

By Blogger Gordon Smith, at Tue Dec 27, 09:05:00 AM:

Searches of people other than American citizens is legal from what I understand. And, Cass, as far as your life as a military family... it's what you signed up for willingly, so let's not compare it to someone in the general populace who gets spied on because they have a speech impediment and, when talking to their grandmother in Belarus, said his father's name, Bob, over and over. Next thing you know, the men in black trenchcoats are knocking on the door.

I've just posted at Scrutiny Hooligans about what this warrantless "wiretapping" may actually mean. We're all talking about it the wrong way. I'm not convinced it's illegal, because there aren't any laws that apply directly to the types of technology being used.  

By Blogger Gordon Smith, at Tue Dec 27, 09:23:00 AM:

Here, again, is the rebuttal to the lie about Clinton and the warranted searches. Cass, I know you're no fan of Think Progress, but they just keep delivering the Facts:

"National Review’s Mark Levin “informs” his readers today:

Clinton bypassed FISA by extending warrantless searches to include physical searches.

Levin is referring to Clinton’s 2/9/95 executive order and his claim is totally false. First, FISA didn’t cover physical searches at the time, so the executive order did not, and could not, “bypass FISA.” Second, unlike the secret Bush administration program, Clinton’s public executive order did not apply to U.S. persons. If Bush’s program didn’t apply to U.S. persons there would be no controversy at all.

But Levin doesn’t have to read Think Progress to figure this out. He can read his own right-wing magazine. Here’s the National Review’s Byron York five days ago:

In the argument that has emerged over warrantless surveillance, there have been a number of overstatements. Some people, for example, have said that Bill Clinton signed an executive order authorizing such surveillance; he did not.

One clarification: when someone says something that’s not true, it’s not an overstatement, it’s a lie. " - LINK  

By Blogger Cassandra, at Tue Dec 27, 10:14:00 AM:

Screwy, my argument hasn't been (at any point, I think) that Clinton bypassed FISA. It has been that warrantless searches are a worse violation than electronic surveillance and that the current screeching is silly.

I agree that this is a nuanced argument and further that due to the holiday rush that I haven't articulated it well, but, that has been the thrust of my argument. I haven't quoted York or Levin.

My point is also that Congress has no authority to legislate where the C rules and that... oh heck, I'm getting ready to post something and I'll let that speak for me.  

By Blogger Cassandra, at Tue Dec 27, 10:17:00 AM:

By the by, I agree that there have been a number of overstatements ... and omissions (a number of them at ThinkProgress, which I read over the weekend) and a number of which on the Right. Everybody twists the law to mean what they want it to mean.

ThinkProgressyve, however, leaves out all sorts of inconvenient facts and case law to "prove" their point. I just haven't had time to rebut them yet Screwy. And it really is harder for me - I'm not a lawyer. I used to do law-blogging all the time. I can do a fairly creditable job when I'm on my game but I'm a bit out of practice and this requires time. Even the lawyers are having trouble so it's a bit much for a layperson like me and I don't want to wade in and say something ignorant and then have people quote me.

I'd feel awful.  

By Anonymous Anonymous, at Tue Dec 27, 11:17:00 AM:

JHD, SH and Cass,
The MSM is chagrined because they have been caught flapping. As Cass rightly points out, warrantless searches have had a precedent, despite the reasons. In Clinton's Reign Of Error the reasons were frivolous and did not justify the intrusion.

Now the reasons have a huge impact: Our freedoms are under threat from a very real foe who has shown they don't give a damn about the rules.

The Left's problem is that they think they can just reach hearts and feelings they will change thought processes.
And we have to play by the rules of the Left.

Well, SH you can run that risk with your family and your life. Not mine.  

By Anonymous Anonymous, at Tue Dec 27, 01:19:00 PM:

Cricket, this is not a simple liberal/conservative discussion. This is a nuanced, complicated constitutional, and yes political issue, that has current and former "players" on both sides of the aisle unwilling to follow party lines. The noise from the blogosphere, and "experts" steamrolling us with "I know more than you" platitudes only muddies the debate.

The question is not whether the Government should be allowed to wiretap--left and right agree it is a necessary and acceptable tool in fighting the bad guys be they terrorists or drug dealers--the question is HOW should the Government be allowed to conduct its surveillance. This is an extremely important debate both for our security, and our hard-fought freedoms. I, for one, am glad that this topic has come out of the NSA closet, and that all three branches of government now will have a role in determining to what degree the "We Are at War" climate will effect our liberties, and the reach of the Executive Branch.

The GWOT most likely will not end in our lifetime, nor maybe even our childrens'. As a nation of laws, it is imperative that we determine what are to be acceptable infringements on our rights individually, and on the Constitution as a whole, to protect our citizens.

I voted for Bush, but I do not want him or any other President alone decreeing what the Executive Branch can and cannot do, nor will I uncritically accept what he says or the actions he takes because "We Are At War." Nor should you. The next POTUS may very well be a Democrat; the rights and excesses we allow the Executive Branch today, will be passed on to his successor(s) tomorrow.  

By Anonymous Anonymous, at Wed Dec 28, 01:08:00 PM:

No one said it shouldn't come out of the closet, but I lived on military bases where warrantless searches could be done at any time.

That was the price you paid for driving or walking on to the installation.

After 9-11, I had more than a few done because I drove a full size white van.
Before then, nothing. After my third search at the front gate, they copied down my license plate # and crossed checked it...it came up clean and I was allowed to proceed from that time on without being searched.

Was I torqued? YES. However, we are dealing with an enemy that can and will use anything to hand that will give them an advantage. Tying those threads together is part of what gathering information will do.

While I agree with you in regard to this being abused, at some point we are going to either be vigilant ourselves or trust government.  

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