As I noted in the sidebar miniblog, and as Praktike posts, John Yoo's fingerprints are once again on an "aggressive" reading of executive power, this time the NSA getting into the domestic surveillance of Americans -- just reported in a major article in the New York Times.
No big surprise, the NYT report was used as ammunition in the Senate cloture vote on the Patriot Act that Feingold et al (three Dem and three GOP Senators) just won in a big way -- 46 votes (47 including Frist as a procedural move). [note: Feingold has been blogging the process at TPMCafe this week]
Glad to see the Senate standing up for its version against the House. When the Senate engages in long negotiations that produce something everyone can live with, the House can't be allowed to eviscerate the deal in conference. As much as the Patriot Act, this vote is a triumph of bipartisanship in the Senate against the House/White House majoritarianism, which will hopefully have a healthy effect on the conference process in the future (e.g. the Rep Duncan Hunter's threats to water down the torture prohibitions in the defense bill). Anyway, the NYT report was helpful to the cause.
But the Patriot Act's critics got a boost from a New York Times report saying Bush authorized the National Security Agency to monitor the international phone calls and international e-mails of hundreds — perhaps thousands — of people inside the United States. Previously, the NSA typically limited its domestic surveillance to foreign embassies and missions and obtained court orders for such investigations.If the NYT had held off on this story until after the Patriot Act was extended, it would have been another Big Media travesty. I simply don't get why the NYT keeps putting themselves in the position of at least appearing to be the Bush Administration's poodles. I wonder who decided they should include in the article that they'd been sitting on the story for a year. I would have loved to have been a fly on the wall in the editorial conference on that paragraph!
On the substance, I don't understand why in the world the Administration can't comply with some simple, basic protections like a warrant. Although I'd certainly prefer that NSA didn't collect huge amounts of information of private conversations, my conscience isn't shocked that they may need to follow leads across borders back into the US. However, the FISA court procedures are super-fast and give enormous deference to the FBI and intelligence folks. If NSA needs some sort of rule that deals with their trolling large groups of phone numbers, I'm sure they could get a specific procedural waiver included in the Administration's precious Patriot Act -- something that gave the court a chance to look at the initial request, a process for dumping all the garbage info that a big sweep would collect, etc. And the Administration is so dreadfully short-sighted -- just as evidence acquired via torture may not stand up in court, evidence based on unauthorized privacy invasions may be fatal to a prosecution. Yes, hunting terrorists before they act isn't like trying to get the goods on someone who has already committed a crime, but with very small adjustments in process, they could retain the ability to "bring the bad guys to justice" even as they stop the bad guys from acting. And more fundamentally, there simply must be some basic safeguards that hold intel/law enforcement accountable to someone other than the internal John Yoos.
What's increasingly clear is that "trust us" is just as feeble an excuse as we all figured it would be. You don't have to be a libertarian, civil or otherwise, to know that it's the simple nature of bureaucracies. But it's time to break the Catch-22, that the Congress, in its oversight function, is dependent upon the Administration's discretion to decide whether to report on how they are actually using their powers.
The one encouraging thing about the NYT report was that the oversight by the FISA court and the Senate Intel Committee (Rockefeller) actually seemed to make a difference. Why? Because it gave the insiders who were opposing these measures some leverage to make their case heard. [noted: our need for the press to act as an effective watchdog, and use information from insiders who are concerned about Administration actions, is why I agree with Paleoprog that any prosecution in the Plame case NOT be based on the Espionage Act.]
But that's a bigger lesson we're learning about Congressional oversight with the Bush Administration. They steamroll over the cautions of experienced professionals inside the agencies and departments. The oversight process permits these other, somewhat wiser views -- e.g. key parts of JAG and State on torture, CIA & State on renditions -- a chance to make their case. But it's only the leaks to the press that give the Senate the leverage they need over the Administration, which otherwise is less than forthcoming about what they're doing.
And that brings me back to the NYT. Good to see they're starting to do their job.
UPDATE:Scott Lemieux of Lawyers, Guns & Money has a somewhat more colorful version of my assessment of the Bush Administration's pattern of behavior.
The Washington Post's report on the cloture vote cites Senator Specter's reaction to the news of the NSA's spying on Americans:
Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, called the domestic spying "clearly and categorically wrong" and vowed to hold oversight hearings on the matter when the Senate reconvenes early next year after its holiday recess.And Atrios goes straight to the heart of the matter:
How hard it is to get a damn warrant? The reason do such a thing is to simply assert that you can.
FURTHER INFO: Phil Carter may be in Iraq these days, but he's not out of touch. He points to Orin Kerr at Volokh, who recommends Judge Sand's opinion in United States v. bin Laden, 126 F.Supp.2d 264 (S.D.N.Y. 2000) (pdf) as a good place to start to understand the legal/constitutional issues. Orin notes:
While the statutory privacy laws have an exception for this type of monitoring, see 18 U.S.C. 2511(f), and the constitutional limits on e-mail surveillance are uncertain even in traditional criminal cases, the constitutionality of warrantless interception of telephone calls in situations like this is really murky stuff.Jack Balkin's a bit more blunt:
Once you begin with the twin assumptions that (1) emergency justifies suspension of constitutional rights and (2) that the President cannot be bound by the rule of law when he acts as Commander-in-Chief, there is very little left to restrain the President. And so he has not been restrained.
The NYT's first response to the heat to come: In response to a question about the timing of the article, Tim Grieve (Salon's War Room) has received a long fax with a statement from Bill Keller:
We start with the premise that a newspaper's job is to publish information that is a matter of public interest. Clearly a secret policy reversal that gives an American intelligence agency discretion to monitor communications within the country is a matter of public interest. From the outset, the question was not why we would publish it, but why we would not.As with most such defensive responses, Keller's raises as many questions as answers. He gets the principles right. But he doesn't explain why the NYT, after months of investigation, didn't know what those of us amateurs who only vaguely follow these sorts of "legal constraints on intelligence collection" would have assumed: that disclosing that the Administration had unilaterally expanded its purported authority would not have exposed "any intelligence-gathering methods or capabilities that are not already on the public record."
A year ago, when this information first became known to Times reporters, the administration argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country's security. Officials also assured senior editors of the Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions. As we have done before in rare instances when faced with a convincing national security argument, we agreed not to publish at that time.
We also continued reporting, and in the ensuing months two things happened that changed our thinking.
First, we developed a fuller picture of the concerns and misgivings that had been expressed during the life of the program. It is not our place to pass judgment on the legal or civil liberties questions involved in such a program, but it became clear those questions loomed larger within the government than we had previously understood.
Second, in the course of subsequent reporting we satisfied ourselves that we could write about this program -- withholding a number of technical details -- in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record. The fact that the government eavesdrops on those suspected of terrorist connections is well-known. The fact that the NSA can legally monitor communications within the United States with a warrant from the Foreign Intelligence Surveillance Court is also public information. What is new is that the N.S.A. has for the past three years had the authority to eavesdrop on Americans and others inside the United States without a warrant. It is that expansion of authority -- not the need for a robust anti-terror intelligence operation -- that prompted debate within the government, and that is the subject of the article.
On the face of Keller's remarks, it looks like the NYT editors swallowed the Administration's representations that they were being good boys and, only recently, began asking themselves whether those assurances, and the "national security" hype, were bogus. But the NYT can't come out and say in so many words that they were lied to, so we have to read between Keller's lines. It certainly appears as if the NYT finally figured out that its remaining credibility would have evaporated if the report had been published following the big Patriot Act cloture battle, given the relevance of NSA's activity to the Patriot Act debate.
[cross-posted at American Footprints]