Life in Wartime

What is striking to me is not so much the arguments presented in this piece in defense of the President's NSA eavesdropping program (as I've written before, while the complexities of the legal arguments are absent from broadcast news, they are very familiar to those following the debate in the blogosphere and, indeed, a good bit of the print press) so much as the piece's location. Sometimes the Times oped page will pleasantly surprise you in its willingness to provide breadth of coverage.

Comments

[P. Abra]

I have found it interesting that anything remotely in support of Bush is offered to readers for free and anything critical of the administration now requires monetary payment to read. What does this say about the New York Times?

[Mike Sheridan]

I find it more revealing the authors past occupation. It is amazing the Republican's libertarian call to get government out of peoples lives, unless it suits their goals like unfetterd spying or outlawing abortion. The poorly defined and terribly prosecuted "war on terror" does not give the president any more power as commander in chief than what is already law. The process was already defined, the president did not follow the legal process and broke the law. He should be held accountable. Bring on the impeachment of King Bush.

[Michele Reynolds]

This article is simply an attempt to disinform and frame the debate once again from simple lawlessness to " it's war stupid...".
First, the US is not "at war" as Molly Ivens posted...we are in a war on nouns much like the failed wars on cancer, poverty and drugs...much to the delight of the Bush crowd this war on the noun Terror does not have an end in sight. Further, there is the specious notion that the surveillance is not to detect crime or prosecute crime...really? How would we know what the electronic gill net of information will be used for? As well all the previous attempts from previous administrations were not for US citizens. Have they read nothing of the Soviet Union's history with these kinds of tortured logic? As well it is so interesting they just have to mention that the President does indeed have the POWER and some how repeating this myth over and over will somehow change the law and the universe. An finally, the "chattering classes" aversion to strong government and strong executive power? I believe that would be a case of conservatism.
Pretty flimsy and disgenuine, yet a genuine attempt at "flying pig" theories of law.

[Savant]

These talking points are obvious and it is clear that the Administration is waging a propoganda war using these same two weak arguments. The Bush apologists use the oldest rhetorical trick in the world. They say the President's actions in violating an EXISTING federal law covering these matters (wiretaps and when a warrant must be issued), are justified under the executives's Article 2 powers. Yet, they can't point to any specific language in the Constitution to justify that point of view. No, what we have here is a completely circular argument. "He has the power because, well...he has the power!"

As to the argument that the Iraq War Resolution justfies the President's illegal actions, there is absolutely nothing in that Resolution that allows the President to authorize spying on American citizens. To say otherwise, is truly an affront to reason. We are a nation of laws, NOT (thank God) a nation of men. It is the Rule of Law that gives us our freedom. We do not have a king with unfettered power. Even Presidents are supposed to obey the law. Too bad this one thinks he's far above it.

[Joe Conover]

The partisan claims being made for a strong executive should remind us there was a reason, during Putin's Texas visit some years ago, that Bush discovered he had such a personal affinity for the former head of the Soviet KGB.

[greg]

I see 5 comments all assuming that the law was broken. I have read quite a few posts with huuge detail that seem to make me feel OK about the search. The guys at Powerline and Captains Quarters actually have the FISA statute noted where and how it might or might not apply.
For those of you that think that this monitoring is an illegal search...think about the use of radar by hwy patrol. How about stakeouts outside of crackhouses. How about screening at the airport.

[Nate]

I have to say that I love the op-eds use of the following phrase: "stringent presidential review". Stringent presidential review of a program authorized, executed, and defended by the Executive branch would not seem to conform in any manner with our traditional definition of checks and balances under the constitution. If the founders of this country intended anything it was that no branch of government should act unilaterally. For that reason, conservatives constantly pound "activist" judges but then defend an "activist" President. Which governing philosophy do these conservatives really want?
For disclosure sake, I should note this is a personal matter of great importance to me. I have family in Alcala de Henares, outside of Madrid, where most of the trains that exploded on March 11th originated their voyages. The terrorist cell that planted the bombs was broken up in Alcala three days later. Ten minutes after news of the bombings broke, I called my family, as they all use those trains. They, by chance, live less than a mile from the train station and less than a mile from the apartment which served as the physical base of the cell. Was that call recorded by the NSA? I will never know. Bush says no because I am not a terrorist,nor a terrorist suspect, but instead just a lowly student. However, if you worked at the NSA, and picked up a call going from the USA to the same town from which three trains that just exploded had left and it so happened that this person was living in the most liberal, university town in NC, would you record that type of call? I know that I would have, if I had authorization to tap calls from citizens to non-citizens. Hence,why this matter is so serious. President's do not have the greatest record of truth: "Read my lips, no new taxes" "I did not have sexual relations with that woman" "Iraq has WMD" but atleast we have stringent presidential review to make us feel safe.

[John]

Having grown up during the 1930s this all reminds me and sounds frightenly like Hitler`s Germany. This article could easily have been written word for word by Herr Gobels, propoganda minister of the Third Reich. Hitler used the same reasons as Bush except he used the comunists as an excuse. Recomended reading: "The Rise and Fall of the Third Reich." The similarities are very freightening.

[John]

Having grown up during the 1930s this all reminds me and sounds frightenly like Hitler`s Germany. This article could easily have been written word for word by Herr Gobels, propoganda minister of the Third Reich. Hitler used the same reasons as Bush except he used the comunists as an excuse. Recomended reading: "The Rise and Fall of the Third Reich." The similarities are very freightening.

[Dru]

But wait a minute. Haven't we also learned that the NSA was recording ecological groups? Animal rights groups? These two gentlemen still not "aghast"?

[John]

Having grown up during the 1930s this all reminds me of, and sounds frightenly like, Hitler`s Germany. This article could easily have been written word for word by Herr Gobels, propaganda minister of the Third Reich. Hitler used the same reasons as Bush except he used the comunists as an excuse. Recomended reading: "The Rise and Fall of the Third Reich." The similarities that we are experiencing now from the present administration are very freightening.

[John]

Perhaps also we should substitute the word King (as used by some of the above postings) with the word Dictator.

[Carole Baker]

I have just read the administration's "spin piece" in the Times op-ed section. Please, this administration wants no entity interfering with the "Presidential perogatives" that Dick Cheney articulates. The President's father never used or it would seem ever wanted such broad powers. The sticking points, it seems to me, are 1. that NSA is not empowered for intra-U.S. snooping and it is not foreigners whose calls, emails, etc. are being intercepted it is Americans' 2. This administration had not made a case for why the FISA court oversight was onerous nor have they sought to remedy such problems. They have done what they have since the day they took office, grab power, do what they want and to hell with anyone who disagrees.

[Ben Sacks]

Does anyone know ... if one of the points raised here and elsewhere is valid? Namely, that FISA always requires the executive branch to go through a time-consuming process before getting a warrant? I have heard FISA allows warrantless taps if a warrent is subsequently applied for w/in 72 hours. Is that true? Under what circumestances can that be done? Is there anything about that requirement that would pose a serious obstacle to inteligence collection?

[ClarkW]

...interesting that these learned attorneys specify that a:

"....reasonable expectation of privacy... is the touchstone of protection under both the Fourth Amendment and the surveillance act itself..."

The 4th Amendment does not state an "expectation of privacy"; it states that people have a "right" to the security of their persons & property from government intrusion... except when individualized
probable-cause of criminal conduct can be demonstrated to a judicial 3rd party. That 4th Amendment law expressly prohibits government agents from violating such personal security.

FISA is non-constitutional itself -- there is no legal authority for secret courts ... or the absurdity of 'retroactive' search-warrants.

The 4th Amendment is hardly recognizable in legal practice these days... after a century of it being eviscerated by endless 'exceptions' to its basis-- crafted out of thin air by self-serving Congress, SCOTUS, and Executive.

[Tom LLoyd]

To the young lady who quotes Ms. Ivens and doubts that a war on Terror exists, please visit the World Trade Center. Oh, never mind, some strong "nouns" hit them a few years ago and 2000+ people are dead. Or visit London, Madrid, Jordon.......You get the idea.

[bill in saginaw]

The Article II argument that Presidents have inherent power to declare it's a "war" and do whatever they feel they need to do despite the Bill of Rights ignores the whole history of the drafting of our Constitution with its enumerated powers divvied up between three branches of government (and that which is not so enumerated retained by the people). Getting rid of the inherent power of George III to start wars at his unilateral whim, and then do whatever he wanted to do to conduct those wars (like impressing sailors and quartering soldiers in homes and suspending habeas corpus and collecting taxes through writs of assistance) was a core value of the whole constitution-drafting and ratification process. Just call me old fashioned, but I still find Jefferson, Madison, and Franklin wiser and more in tune with contemporary reality than the revisionist American history hyped by John Yoo, Alberto Gonzales, and the other neo-con apologists who indulge in such sophistry to put an intellectual gloss upon 21st Century facism.

More bizarre still is the neo-conservatives' second argument, that by passing the Authorization for Use of Force resolution to invade Afghanistan, Congress "implicitly" also authorized torture, indefinite detention of enemy combatants, military tribunals, and now the focusing of NSA military surveillance technology upon domestic targets with no judicial oversight whatsoever. What ever happened to reading the plain words of the statute? Whatever happened to peeking at legislative history to maybe discern legislative intent if the language is ambiguous? How can the Bush administration possibly claim that bugging Koffi Annan and the UN Security Council members' communications at the time of the Iraq invasion run up in the spring of 2003 was somehow related to catching the folks who attacked the United States on 9/11/01?

So much for the original intent of the framers.

So much for strict construction of Constitution and/or statute.

It's dangerous and pretentious Federalist Society hypocrisy. It is certainly not an ethical, or even a sensible reading, of the law of the land.

[Liam O]

The Bush administration's rationale for anything it does - legal or otherwise - boils down to this: "Trust us, we have your best interests at heart. We would never be so deceptive as to use the legitimate War on Terror in order to also pursue the personal agendas of any member of our administration, or our major financial supporters. We would never try to advance our own power or commercial associations by eroding the privacy or due process rights of the accused, because we would never make false accusations against anyone or use our spying power against anyone for any purpose other than fighting terrorism. Trust us . . . we are honest . . . trust us . . . you are getting very sleepy . . . trust us . . . the Bill of Rights is an anachronism . . . trust us . . . believe in us without question . . . belief is reality . . . trust us . . . ignorance is bliss . . . trust us . . . report on your neighbors if they look funny . . . trust us . . . everything is fine . . . Big Brother is watching out for you . . . trust us . . . you are getting very sleepy . . . trust us . . . trust us".

[dauber]

I suspect most of you who commented found this blog b/c for some strange reason it was listed by the Times. If that's the case, you're probably first time visiters (and, actually, probably will never come back to read this, but I figured I'd play the percentages.) This is pretty much strictly a media blog, and as I mentioned earlier to my regulars, I'm just not going through the legal arguments here, simply b/c that isn't the pt or purpose of this site, but I have made mention of the fact that there is a robust and complex debate available on the question on the blogosphere that's being ignored by much of the mainstream press. And that debate is being conducted not by pundits or wannabees but by some of the most accomplished legal scholars available. So, for those of you who are interested in delving further, I suggest you google the names Orin Kerr, Cass Sunstein or Eugene Volokh in relationship to the questions at hand.

[ClarkW]

...the 'media issue' here is that the MSM consistently instructs its audience to defer questions of fundamental law to ".. accomplished legal scholars" or government officials -- rather than their own judgement.

The 'Rule-of-Law' hinges upon average citizens being able to understand and apply the "law" to everyday life.

If the law can only be understood second or third-hand thru "scholars" -- then the rule-of-law does not exist.

There's a very good reason why the legal profession is held in such low esteem by Americans. "Journalists" are held in the same category.

Volokh & crowd are highly biased political advocates -- with little objective credibility.

The MSM has great difficulty discerning and reporting the facts on any issue -- it's so much easier to defer to selected "experts" ...and transcribe that "expert" opinion as fact.

[Craig Landrith]

To the Skeptics,
You are entitled to your own beliefs but not your own facts. It is a fact that we are at War, because the Joint Congressional resolution authorizing the taking of all necessary means precisely that (you can go back to numerous historical judicial findings on this with NONE ever rejecting it) and indeed Osama Bin Laden has declared a War on us; it is a fact that the Constitution makes the President Commander in Chief of the Armed Forces and singularly responsible for the execution of this war; it is a fact that the Armed Forces, in execution of this war, must monitor and act on the enemys signals intelligence, even if they are communicating with someone in the US. A small mind excercise will highlight the ludicriousness of the critics position. Assume the Army is in a fight in one of Iraq major cities. A electronics intercept is made from one of our known terrorists operators to a number in the US. Are you seriously suggesting that the Army wait until it gets permission from the FISA before deciphering the info and acting on it? This is not only preposterous but an unconstitutional breach of Presidential power. But by all means, please keep up your laughable critisms, we need to get Bushs poll numbers up to 60 to 65% to ensure the 06 and 08 elections go Republican.

[Rachel]

What scares me about this article is this section, about lack of expectation of privacy:

"The same goes for noncombatants swept up in the hostilities. "

Nice to know that the administration's lawyers see the people of this country as "noncombatants" rather than "citizens with rights" for as long as this "war", with no beginning or end, is in process.

[John]

We have seen what the 2000 and 2004 elections have ensured us. Why would we want more of the same. We are now being governed by an administration who would lie when the truth would serve them better. What person in their right mind would want more. They keep doing the same things over and over and expect different results.. Begone I say. Begone and join the Third Reich who our administration is striving with much to much success to emulate. Begone and join the Third Reich in oblivion.

[Enoch]

Wow, it's amazing how this NSA-related post brought all the "Bush is Hitler and we live in the Third Reich" whackjobs out of the woodwork...