Posted on 01/08/2006 6:30:11 AM PST by conservativecorner
I haven't had a chance to read the Congressional Research Service's report on the legality of the NSA intercept program. However, Orin Kerr finds its scope "quite narrow." According to Kerr, "it says that if you accept that the NSA program violated FISA, then the claims in DOJ's letter as to why the AUMF or Article II trump FISA are relatively weak. . .The CRS report is appropriately cautious."
The Washington Post story on the report is clever. It focuses on CRS's disagreement with arguments contained in a Justice Department letter to Congress, and ignores what Kerr sees as the "narrow" and "cautious" aspects of the report. If Kerr's reading is correct, then the Post's account is more concerned with attacking the Bush administration than with giving its readers a full sense of what CRS concluded about the legality of the program in question.
I also love the Post's characterization of the report as "the first nonpartisan assessment of the [surveillance] program to date." The report is bipartisan in the sense that it's not Republican or Democrat. But the potential constitutional issue the report considers is not about Republicans vs. Democrats (the only lens the partisan Post sees through these days). It's about congressional vs. presidential power.
CRS is, as the Post says, "Congress's research arm." Thus, its conclusions about how much power Congress has are no more entitled to a presumption of neutrality than the conclusions of researchers and lawyers within the executive branch.
Jane Harmon is using the argument du jour in her conversation with Brit Hume - that although she is a "trained lawyer" she did not object to the President's use of NSA "domestically" because she could not discuss it with anyone until the President, himself "disclosed" its existence [in response to the publication of its existence].
She said that Congress has vast resources of legal blah blah and now she know what she should have objected to in all those briefings that she had at the White House.
I thought only J Rockefeller was using the "I'm too stupid" defense. I guess it is going to be the dem party line.
What we keep seeing, is the Democrats unmasking some action of the President or Republican party, throwing extreme charges of criminality and totalitarianism at it, and the media picking it up and running with it for a month or so.
Once it comes out that it is actually an intelligent and prudent thing to do, the Dems move on to a different issue, the media lets the problem drift away, and it just becomes another one of those terrible things Bush/Republicans have done.
They don't seem willing to wait (or really want) for a thorough evaluation of the information to take place, to understand if the action is really necessary, and whether or not they should support the President/Republicans on any of these issues.
mark for study
I had a guy I was prosecuting once for DWI argue that he was too drunk to be held responsible for his own actions. Afterall, he had no memory of getting behind the wheel.
Seems this "I'm too stupid" defense uses similar logic.
Glad to read you were the prosecutor and not the defendent's lawyer!!!
In that case the guy was his own lawyer. And as they say, he had a fool for a client.
All they want to do is get a damaging point of view out 'there' and once the pot is boiling, they move on - you are quite right.
However do pass these along:
(Jimmy Carter)
(Bill Clinton)
The above are Executive Orders giving those presidents carte blanche - and because they are Democrats nary a word was raised - all concern was squelched.
In the absence of any complaints or evidence of damage or abuse from this, I find objections highly hypothetical.
Commanders speak of "the fog of war" - they must make life-and-death decisions on the basis of early reports. But that is actually just an accute case of what I call "the fog of breaking news."Look at the reporting of the recent WVa coal mine disaster. Despite the best efforts of the authorities to hold information back until it was confirmed, "word" leaked out and spread like wildfire, so that locally essentially everyone "knew." And the "breaking news" media could not but report it. The report of "one dead, ten surviving" was about the best possible news; it was made credible by the report of one dead - but if you're a family member your odds are no longer extremely long but now suddenly are ten-to-one in your favor.
In that case the miners' families were the only victims of the misinformation which seemed "official" coming from "objective" broadcast journalism. But then there is the case of election coverage, which is a classic quadrennial "breaking news" operation. I am not aware of any statistics for any other election but the classic journalistic runaway of 2000, but Florida's famous squeaker was not the only election for which the discipline of "objecivity" broke down under the imperative of breaking news. With one outlier (one state atypically called early for Bush) discounted, the breaking news of the 2000 presidential election was presented exactly as if broadcast journalism overestimated the strength of the Gore vote by several percentage points.
Liberalism is the idea that not only is the pen mightier than the sword, the pen is the only thing that really matters. Naturally, that idea is powerfully appealing to journalists - and optimism leads journalists to overestimate the electoral strength of Democratic politicans.
Has Harmon been writing notes to self and putting them in the vault also? Rockefeller's handwritten note
This is the game plan - keep at it until Joe Q Public is so inundated with "Bush=Evil" that when '06 elections roll around all he remembers is to vote out all Republicans. There is, and never will be, any follow-up to these lying stories the MSM is peddling for the RATs. I don't know how else to say this, but the RATs/MSM are out to get Bush and the Repub House at any cost even if that means printing and broadcasting 100% lies. There is no law that says the news media has to tell the truth!! That might come as a huge surprise to Joe 6 pack - I know it came as a huge surprise to me once I realized it.
I'm waiting for a journalist to ask one of these Congressional "Leaders" who were briefed by the President, and who say they could talk to no one so they could not learn that they should be objecting to his command decision:
"Did you discuss your concerns with any of the other seven of the "leaders"? Are there any of the other seven that you consider knowledgable on Intelligence issues?"
and the follow-up:
"Do you think that Chairs and Ranking Members of the Intelligence committees should be knowledgable on these concerns?"
I think it's a fair take on the CRS report, as well as WaPo's use of it. I agree emphatically with this part ...
The Post's coverage of the CRS report is deeply misleading. In fact, the CRS concluded:I think the legal analysis in the Powerline piece has some significant holes in it - but it is still completely on point in its criticism of the WaPo article.
Whether an NSA activity is permissible under the Fourth Amendment and the statutory scheme outlined above is impossible to determine without an understanding of the specific facts involved and the nature of the President's authorization, which are for the most part classified.
The existence of those EO's isn't a useful point of argument. The EO's merely recapitulate the statutory language of FISA.
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