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A Colloquy With the Times (Powerline corresponds with NYT on NSA story)
Power Line ^ | 12/21/05 | John Hinderaker

Posted on 12/21/2005 5:41:19 PM PST by frankjr

Reporter Eric Lichtblau of the New York Times responded to the email I sent earlier today; we had the following exchange.

Me to Lichtblau:

Mr. Lichtblau, in your reporting in the Times you appear to have tried to create the impression that the NSA's overseas intercept program is, or may be, illegal. I believe that position is foreclosed by all applicable federal court precedents. I assume, for example, that you are aware of the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001, where the court said:

"The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. *** We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

In view of the controlling federal court precedents, I do not see how an argument can be made in good faith that there is any doubt about the NSA program's legality. Therefore, I wonder whether you are somehow unaware of the relevant case law. If you know of some authority to support your implication that the intercepts are or may be illegal, I would be interested to know what that authority is. If you are aware of no such authority, I think that a correction is in order.

Thank you.

Lichtblau to me:

You must not have read to the end of our original story last Friday. It quotes from the FISA appellate decision that you cite.

Me to Lichtblau:

That's great, but doesn't answer the question. It seems to me that the import of the Times' stories is to suggest that the NSA intercepts are, or may be, illegal. That implication is what gave your paper's reports the quality of a "scoop." Are you telling me that you knew all along that this wasn't true, and the intercepts are clearly legal? If not, what are you telling me?

Thanks for responding.

Lichtblau to me:

I'd refer you again to our story. There's an extensive section on the debate over whether the program was legal, including the FISA ruling you cite.

Me to Lichtblau:

Here's my problem with your coverage: as a legal matter, there isn't any debate. The authorities are all on one side; they agree that warrantless surveillance for national security purposes is legal. I think your articles misleadingly suggest that there is real uncertainty on this point, when there isn't. Thus, for example, you write:

Some officials familiar with it say they consider warrantless eavesdropping inside the United States to be unlawful and possibly unconstitutional, amounting to an improper search. One government official involved in the operation said he privately complained to a Congressional official about his doubts about the program's legality. But nothing came of his inquiry. "People just looked the other way because they didn't want to know what was going on," he said.

I don't think you should be quoting anonymous "officials" making incorrect assertions about legal issues, while not pointing out that their assertions are wrong. (I would also note that the NSA intercepts are not "inside the United States.") And I don't think that a partial sentence from one of the controlling decisions, buried at the end of a long article and not repeated in subsequent articles, removes the incorrect impression you convey that the NSA program is, in all likelihood, illegal. Also, with all due respect, I think your treatment of the 2002 FISA case is itself misleading. While you do quote part of the key sentence, you go on to suggest that the court left the issue in a state of ambiguity by writing:

But the same court suggested that national security interests should not be grounds "to jettison the Fourth Amendment requirements" protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, "is a very difficult one to administer."

Those quotes had nothing to do with the court's recognition of the President's inherent power to surveil without a warrant to obtain foreign intelligence information, and did not in any way qualify the court's clear holding on that issue. You plucked them from another part of the opinion. The "dividing line" the court referred to was the "primary purpose" test that was established by the Truong decision and changed by Congress in the Patriot Act. The court noted that the "primary purpose" test was difficult to administer, which it saw as an argument in favor of the constitutionality of its revision by Congress. Contrary to the implication of your paragraph, this had nothing to do with the President's power to conduct warrantless surveillance.

In my opinion, you should not convey the impression to your readers that the NSA surveillance is likely illegal unless there is, at a minimum, a respectable argument, supported by legal authority, to that effect. Do you think there is such an argument? If so, what is it, and what is the authority?

Thanks again for responding.

Since I haven't heard from Mr. Lichtblau for some time, I'm going ahead and posting the discussion we've had so far. I hope that Mr. Lichtblau will respond to my criticisms of the Times' coverage in my last email; if so, I'll post his answer. In any event, we greatly appreciate his taking the time to engage us in this conversation.


TOPICS: News/Current Events
KEYWORDS: fisa; hindraker; luchtblauiscoward; nsa; nyt; patriotleak; spying
The NYT sat on this story for over a year and it appears during that free time, they did NO research into the legalities underlying the NSA story. The NYT acts solely as a mouthpiece for the lefty leakers that are looking to undermine this President and the nation's security.

It's easy for the Times to print their crap and call it a day. However, when they are confronted with the facts, they clam up.

1 posted on 12/21/2005 5:41:20 PM PST by frankjr
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To: frankjr

Damn I love Powerline.


2 posted on 12/21/2005 5:45:39 PM PST by Fenris6 (3 Purple Hearts in 4 months w/o missing a day of work? He's either John Rambo or a Fraud)
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To: frankjr

"Facts to a liberal/democrat/press are like Kryptonite to Superman..."


3 posted on 12/21/2005 5:45:56 PM PST by xcamel (a system poltergeist stole it.)
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To: frankjr

This isn't an issue that's quite as easy to understand as forgery and fraud, which brought down Dan Rather. But it must be said that Hindraker does a superb job of presenting his case, in language that anyone of reasonable intelligence should be able to understand. I don't see how it could be written any more simply and straightforwardly while still doing justice to the facts.

This article needs to be distributed as widely as possible.

Maybe someone should alert Rush and Drudge, if they haven't already seen it.


4 posted on 12/21/2005 5:48:46 PM PST by Cicero (Marcus Tullius)
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To: frankjr

Lichtblau - watcha got? Come on - bring it or STFU.


5 posted on 12/21/2005 5:49:23 PM PST by Enterprise
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To: xcamel

You're equating the Dem/MSM with superman? You need a different analogy.


6 posted on 12/21/2005 5:52:24 PM PST by saganite (The poster formerly known as Arkie 2)
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To: xcamel
Facts to Liberal Democrats are like Holy Water is to Vampires."
7 posted on 12/21/2005 5:55:28 PM PST by DJ Taylor (Once again our country is at war, and once again the Democrats have sided with our enemy.)
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To: frankjr

This is very good work. I can see why the Times writer didn't reply. My guess is he couldn't without first clearing an answer through higher ups who in turn are probably conferring with their lawyers right now.


8 posted on 12/21/2005 5:57:28 PM PST by billhilly (Demo camo is yellow and white)
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To: Fenris6

No kidding. Joe Citizen taking the MSM out to the woodshed. The slutty politicians connected to this, by New Years Eve, will have never heard of the story.


9 posted on 12/21/2005 5:58:51 PM PST by WorkingClassFilth (The problem with being a 'big tent' Party is that the clowns are seated with the paying customers.)
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To: WorkingClassFilth
No kidding. Joe Citizen taking the MSM out to the woodshed.... while Joe is wearing pajamas he he he
10 posted on 12/21/2005 6:07:06 PM PST by Principled
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To: DJ Taylor

Facts to Liberal Democrats are like Holy Water is to Vampires."

Needed to be said louder.

11 posted on 12/21/2005 6:12:30 PM PST by twntaipan (MERRY CHRISTMAS WAS NOT A PROBLEM UNTIL THE DEMOCRATS MADE IT A PROBLEM)
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To: frankjr
Haha!

How sweet it is, my friends. Those ultra-brainy liberals and their latest "scandal" have been shot down in a matter of days.

They never learn, do they?

12 posted on 12/21/2005 6:15:07 PM PST by Reactionary (The Stalinist Media is the Enemy)
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To: frankjr

I read this directly from the Powerline site a little while ago and am glad you posted it. Interesting exchange.


13 posted on 12/21/2005 6:16:13 PM PST by Peach (The Clintons pardoned more terrorists than they ever captured or killed.)
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To: frankjr

Even if the NYT was a completely impartial muckracker, there's not much chance in getting a Pulitzer without stirring things up. All the incentive in MSM is for bending the story in some way. I think a person is more likely to get the truth out of journals and the web.


14 posted on 12/21/2005 6:22:15 PM PST by bkepley
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To: Fenris6
"Damn I love Powerline."

Yes, it is nice to have a nice smart guy who knows the facts on our side.
15 posted on 12/21/2005 6:24:27 PM PST by Ninian Dryhope ("Bush lied, people dyed. Their fingers." The inestimable Mark Steyn)
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To: frankjr

Some officials familiar with it say they consider warrantless eavesdropping inside the United States to be unlawful and possibly unconstitutional, amounting to an improper search. One government official involved in the operation said he privately complained to a Congressional official about his doubts about the program's legality. But nothing came of his inquiry. "People just looked the other way because they didn't want to know what was going on," he said.


Not sure this is related to that, but sounds as if Rocka feller could be the Times contact.


http://www.epic.org/privacy/terrorism/fisa/rock_cheney_ltr.pdf






16 posted on 12/21/2005 6:27:38 PM PST by BARLF
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To: frankjr

I don't know who lichtblau is, but he sure sounds like a weenie.


17 posted on 12/21/2005 6:30:20 PM PST by babydoll22 (If you stop growing as a person you live in your own private hell.)
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To: BARLF

Has Cheney confirmed that he was given a copy of this letter? The letter seems very self serving.

Interesting that it was hand written, so the date can not be confirmed.

Also, I hope the White House pulls out all stops to identify this leaker.


18 posted on 12/21/2005 6:35:11 PM PST by babydoll22 (If you stop growing as a person you live in your own private hell.)
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Comment #19 Removed by Moderator

To: babydoll22

Read the letter carefully. The "Senator" says he didn't feel competent to judge the program. After serving on the Intelligence Committee for how many years? He couldn't ask for a special discussion with the committee's legal counsel? He couldn't ask for a briefing by the NSA's counsel (or I believe they have an IG)? He didn't discuss his objections with the chairman?

This is an failure to live up to his duties. Apparently Senators want oversight, but don't really want to share responsibility.


20 posted on 12/21/2005 7:08:22 PM PST by sgtyork (If Osamma calls someone in the US, should the NSA hang up?)
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To: babydoll22
I have no idea if the letter was sent to Cheney nor do I know what the senator is refering to in the letter.

Interesting that it was hand written, so the date can not be confirmed

I had the same thought.

21 posted on 12/21/2005 7:11:45 PM PST by BARLF
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To: frankjr

Why was this story not the "October Surprise" in 2004?


22 posted on 12/21/2005 7:16:34 PM PST by plymaniac (W08)
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To: Doc Savage

Not "just as soon" but actually fervently desire to see assassinated. I propose a pool or maybe a where's Waldo search for a word of truth in the NYT. I wouldn't even trust their box scores.


23 posted on 12/21/2005 7:19:42 PM PST by Rsgood Dsbad
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To: Cicero
"Facts to a liberal/democrat/press are like Kryptonite to Superman..."

...or salt to a slug.

24 posted on 12/21/2005 7:27:24 PM PST by HangThemHigh (Entropy's not what it used to be.)
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To: frankjr

Great post, bump


25 posted on 12/21/2005 7:32:09 PM PST by Irish Eyes
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To: twntaipan

Like sunlight to Vampires. Better metaphor.


26 posted on 12/21/2005 9:09:00 PM PST by Fenris6 (3 Purple Hearts in 4 months w/o missing a day of work? He's either John Rambo or a Fraud)
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To: frankjr

Bttt.


27 posted on 12/21/2005 11:35:20 PM PST by PA Engineer (Liberate America from the occupation media.)
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