Just Above Sunset
December 25, 2005 - Filling in the Corners of the Domestic Spying Dispute

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As elsewhere, a unanimous Supreme Court decision in 1971 held that President Nixon did not have the constitutional powers as Commander-in-Chief to override any law, statute or other provisions of the constitution in order to preserve and protect the constitution of the United States. There were rules against spying on American citizens - spying here being defined as, without a warrant or congressional oversight or any judicial review, wiretapping and bugging and all that, and keeping secret files and all the rest. That was a no-no, a violation of the Fourth Amendment regarding illegal search and seizure. This secret spying is, of course, different than criminal investigation, where you get a warrant to secretly, or at least discretely, investigate suspicious activity that my be connected to a crime, one that has been committed or is being planned. That's fine. You ask for permission and almost always get it - the Fourth Amendment doesn't to forbid the government from fighting crime. But you have to ask. You just can't tap the phone or plant the bug without permission. You do a legal search.

That was the controversy as of Monday, December 19th - but this time it was President Bush maintaining he had the constitutional power to override any law, statute or other provisions of the constitution to do this domestic spying. The flurry of opinion throughout that day was intense.

In the morning the president held a press conference where he said just that - Bush Says U.S. Spy Program Is Legal and Essential (NY Times). He did this without any warrant or review, and he planned to keep doing it.

A few hours earlier the Attorney General said on the Today Show that congress, when they approved the 2001 resolution giving the president the authority to use force to deal with the threat posed by al Qaeda and Iraq's weapons of mass destruction, implied with the words "by any appropriate means" that they were granting the president permission to work completely outside the law. That's how he saw it. Thus there was no problem and all the outrage was misplaced. That contention is reviewed (with links) here - Congress Gave President The Authority To Spy On Americans. In a press conference later in the day the Attorney General elaborated. Of course in the press conference he argued that Congress had already implicitly authorized such a warrant-free outside-any-law domestic spying program, and then also said the administration declined to seek explicit authorization because "we were advised that that was not likely to be - that was not something we could likely get." Huh? So Congress had already clearly authorized it - but he knew they really wouldn't authorize it. But they did authorize it. But they wouldn't if they knew what was going on. But they really did authorize it. Really.

Fine. Make of that what you will.

But what to make of this from Jonathan Alter in Newsweek just a few hours later - "I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting, but one can only imagine the president's desperation."

Somehow the word "busted" comes to mind. One can be fairly safe in assuming the bad guys know we do everything we can to intercept and evaluate all the communication of theirs we can get our hands on, or our ears on, or whatever. What could the Times be doing here that would aid the enemy? The enemy knows we're listening. The Times story was about who gets to ignore the law. Is there any other reason to ask the Times to spike it?

Well, maybe there is, and that leads to the first curious Monday document.

The administration says they consulted with congress on this. But it seems they consulted with only a few committee chairs, and swore them to secrecy - they couldn't even speak to their staff about what they'd heard - and as these few have pretty much all said, it was hardly a consultation anyway.

They were told the administration was doing this domestic spying and bypassing the special and secret panel, the FISA court, set up in 1978 to approve such things - even though this panel had never turned down a request and was okay with stuff done without asking, as long as they were told within seventy-two hours. This wasn't asking what they thought of bypassing the rules and safeguards - these select few were just being informed it was happening.

And that prompted one of these few, Senator Jay Rockefeller, to release a handwritten note he sent the Vice President over two years ago after one of these "consultations."

This is very odd. The image is here and the text is this:


July 17, 2003

Dear Mr. Vice President,

I am writing to reiterate my concern regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, and Chairman Roberts and our House Intelligence Committee counterparts.

Clearly the activities we discussed raise profound oversight issues. As you know, I am neither a technician nor an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.

Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.

I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication.

I appreciate your consideration of my views.

Most respectfully,

Jay Rockefeller


Now that's something you don't see every day, and it raises all sorts of questions.

The first is with " I am neither a technician nor an attorney." Why would he need technical knowledge?

Josh Marshall here says that "over the last couple days I've heard informed speculation from several knowledgeable sources that what is likely really at issue here is the nature of the technology being deployed - both new technology and technology which in the nature of its method of collection turns upside down our normal ways of thinking about what constitutes a reasonable or permissible search."


Those of us who have worked in the world of information technology and built "data warehouses" know all about data mining and things like Bayesian and Dependency Networks and Sequential Patterns and Time Series. The tools exist to scan the thousands of terabytes of emails out there on all the email servers in the country, daily, "in order to find previously unsuspected relationships, which are of interest or value." It's not just looking for keywords anymore. And yes, this really does "turn upside down" our normal ways of thinking about what constitutes a reasonable or permissible search. And it is something the NSA can do, as many have reported. As one of Marshall's readers noted, "No FISA authorization would be possible, since this sort of activity was not contemplated by that law." That may be what's going on here.

Is that a good thing? Maybe so, and maybe not. But perhaps some sort of rules to safeguard against abuse should regulate such massive digging around. This is not exactly analogous to a "fishing expedition," where you want to nail someone but you have nothing so you just poke around. But it's close to that. Is using "pattern recognition" software on a billion random emails something for which you need a warrant? The question had ever come up. Now it has, or will.

Marshall notes other comments about the Rockefeller memo, like this –


I am sure you've read enough bureaucratic communications to know what this memo says: "When this hits the fan, I am keeping a copy of this so you can't take me down with you." I hope you explicitly bring this out in one of your postings. The consulted senators knew this was ultimately going to go nuclear.


And this –


To read Sen. Rockefeller's feeble handwritten letter is like reading a note sent from a jailed political prisoner, isn't it? This must be the "oversight" Bush was talking about this morning - giving a Senator an iota of information regarding extra-legal executive branch activities, prohibiting him to even tell his own staff, and then refusing to respond in any meaningful way when he writes a handwritten letter of concern to the VP ...


Well, that's life in Washington, isn't it?

And Marshall also here wants to clarify one point that he believes "has become muddled a bit in the discussion of the White House's legal argument with these wiretaps." He says Bush and the Attorney General are not really arguing that the Afghanistan War Resolution gave them "the authority to override whatever laws or constitutional prohibitions exist against these warrantless searches/wiretaps." They are actually arguing is that the Resolution affirmed the president's inherent power as commander-in-chief to do these things - the president's powers as a wartime commander-in-chief are essentially without limits and that "he's simply not bound by the laws the Congress makes." He says what gave them that idea was this legal opinion from the Justice Department advisor at the time, John C. Yoo. That's the second odd document.

The third odd document is from one of our California senators, Barbara Boxer.

She has a question


December 19, 2005

Washington, D.C.- U.S. Senator Barbara Boxer (D-CA) today asked four presidential scholars for their opinion on former White House Counsel John Dean's statement that President Bush admitted to an "impeachable offense" when he said he authorized the National Security Agency to spy on Americans without getting a warrant from a judge.

Boxer said, "I take very seriously Mr. Dean's comments, as I view him to be an expert on Presidential abuse of power. I am expecting a full airing of this matter by the Senate in the very near future."

Boxer's letter is as follows:

On December 16, along with the rest of America, I learned that President Bush authorized the National Security Agency to spy on Americans without getting a warrant from a judge. President Bush underscored his support for this action in his press conference today.

On Sunday, December 18, former White House Counsel John Dean and I participated in a public discussion that covered many issues, including this surveillance. Mr. Dean, who was President Nixon's counsel at the time of Watergate, said that President Bush is "the first President to admit to an impeachable offense." Today, Mr. Dean confirmed his statement.

This startling assertion by Mr. Dean is especially poignant because he experienced first hand the executive abuse of power and a presidential scandal arising from the surveillance of American citizens.

Given your constitutional expertise, particularly in the area of presidential impeachment, I am writing to ask for your comments and thoughts on Mr. Dean's statement.

Unchecked surveillance of American citizens is troubling to both me and many of my constituents. I would appreciate your thoughts on this matter as soon as possible.


Barbara Boxer

United States Senator


So what will the scholars say? Is President Bush is "the first President to admit to an impeachable offense?" This has "gone nuclear."

On the other hand, there is this charm offensive going on. The president gave four speeches in the run-up to the Iraq elections, gave an extended interview to Brit Hume on Fox News and one to Jim Lehrer on public television, gave his first speech from the Oval Office in years on Sunday night and Monday morning held a long press conference. He's suddenly all over the place, in what John Dickerson calls Bush's Long March to Candor.

As for the Oval Office speech –


This was only the latest display in Bush's month long march toward candor. Starting in late November, with the first of a series of speeches preparing the ground for the Dec. 15 Iraqi elections, the president started offering a little more reality and a little less spin. Likewise, in his Sunday night remarks, Bush tried to show he was "listening" to opposition lawmakers and his military commanders and reacting accordingly. He admitted mistakes and course corrections and leveled about the shaky future in Iraq. "We have learned from our experiences, and fixed what has not worked," he said, sounding fresh out of therapy. "We will continue to listen to honest criticism, and make every change that will help us complete the mission."

The promise of a more candid president is irresistible. It's insulting when Bush spins so wildly while claiming to be plainspoken. If he admits the obvious, the press can spend less time trying to make him do so and more on questions about future policy. Democrats might also be shamed into a more honest dialogue.

But should we believe that the president really has changed? Politicians and no-good boyfriends have traditionally used watery admissions to give the appearance of change without actually changing. Is Bush now listening and facing up to reality? Or is he saying he's listening, the better to tune out criticism and facts he doesn't want to hear?


Who knows? Dickerson has his views –


Bush still has a way to go with this whole candor thing. He says he's listening to his critics but then labels them as defeatists. Asked in his press conference Monday what he thought his biggest mistake was during his tenure and what he had learned from it, Bush didn't offer much. He saw the question as a trap, just as he did when I asked him the same question in April 2004. This time, he talked briefly about training the Iraqi civilian defense force poorly and moved on.

... Bush surely has the capability to be candid. Those of us who have talked to him off the record have seen it. White House aides have struggled for years to show that side of Bush to the public but always fail because Bush says things off the record that would get him crucified. It's not just rough language that he thinks would hurt him. Bush doesn't think he can speak plainly without his comments being taken out of context - without Democrats doing what the RNC is doing to them. Bush can say in private that he understands that the mere presence of U.S. soldiers helps feed the Iraqi insurgency, but in public he's never going to say anything that might look like he's undermining U.S. troops. If people think he's clueless because he won't speak this and others truths out loud, he's willing to suffer that.


It sounds like the man is trapped. And here Fred Kaplan suggests that in the Oval Office speech Bush close to delivering a frank and forthright speech "but in the crunch, he reverted to form and the by-now-predictable mix of fact, distortion, and fantasy."

Well, there's a lot of that going around, along with some odd documents.


Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
The inclusion of any text from others is quotation
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