Note: See below for Bill Keller's initial response to the timing question.

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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.

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.

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."

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]

It's no surprise that The Little News Bureau that could, Knight-Ridder Washington, is leading the charge against the absurd practice of anonymous background briefings:

"It's easy to say that the Bush administration has taken secrecy to a new level. Because it has," said Knight-Ridder reporter Ron Hutcheson, who is the president of the White House Correspondents Association. "But we've let them."

Hutcheson described his own personal walk-out from an anonymous briefing last term. It turned out to be a solo affair. No one followed him.

Dan Froomkin has more on the challenge of getting everyone else on board.

In other Sunshine Week related news, see the ongoing mensch-like work that the indefatiguable Steven Aftergood is doing. In particular, read his Slate piece entitled The Age of Missing Information. Freedom of Information is definitely beating a hasty retreat under the Bush administration, and Steven Aftergood is doing his level best to fight back.

... while we're on the subject, what's up with somebody trying to hamfistedly smear William Arkin? And the Gertz connection here is a bit rich, as Laura correctly notes. Gertz leaks more senstive stuff than anybody, I'd wager.

From ArmsControlWonk comes news of an interesting-sounding new book entitled Code Names:

The war on terrorism and the wars in Iraq and Afghanistan have led to a secrecy explosion. In the 9/11 world the U.S. military and intelligence organizations have created secret plans, programs, and operations at a frenzied pace, each with their own code name. In a perfect world, all of this secrecy would be to protect legitimate secrets from prying foreign eyes. But in researching Code Names, defense analyst William M. Arkin learned that while most genuine secrets remain secret, other activities labeled as secret are either questionable or remain perfectly in the open. The sheer volume and complexity of these operations ensures that the most politically important remain unreported by the press and shielded from the scrutiny of the American electorate. Despite the intelligence failures of 9/11 and the questionable assumptions that led to the war in Iraq and govern the war on terrorism, the U.S. government argues for massive amounts of funding and resources, while at the same time claiming that public accountability would compromise their missions. Arkin didn’t accept this argument during the Cold War – when he published two books that revealed U.S. nuclear “secrets” and led directly to a healthier public discussion of a “nuclear warfighting” emerging in the Reagan era – and he is challenging it again today.

From “Able Ally” to “Zodiac Beauchamp,” this book identifies more than 3,000 code names and details the plans and missions for which they stand.

Regular readers of the Federation of American Scientists' Secrecy News may already be familiar with issues of overclassification in American government, but in my first Homeland Security class on Tuesday, I got a bit of a first-hand account of it from my professor, who was a former Air Force intelligence and CIA officer for many years. Part of your training as an officer involves learning the process of classification, and not suprisingly in the CIA's secrecy culture (where even widely known information like the intelligence budget is never "confirmed") it is an extremely easy thing to do: your officer sitting at a desk stamps the top and bottom of the document with "Secret", and then adds on the line the reason for classification, which comes from a list of various coded categories. The biggest is, not suprisingly, the catch-all in-the-name-of-national security category, although he said that a newly popular one these days was "Sensitive But Unclassified" — information which people have been actually prosecuted for distributing, even though it is not technically "secret". And as for at what future date the classification of material can be later reevaluated, "ImpDet" — Impossible to Determine — is literally built into the stamps they use.

This is all on the first day, so I only have broad anecdotes to share right now, but I think it's going to be an interesting class. (P.S. to Nadezhda - Can you add new categories for my four new courses this semester? Thanks!)

[UPDATE 11-19-04] For a very interesting review of Marc Sageman's book, as well as of a more scholarly monograph on Afghan-Pakistani terror links by Mariam Abou Zahad and Olivier Roy, see Steve Coll's piece from Washington Post Book World, August 2004.

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[UPDATE 11-20-04] A fascinating look at the radicalizing process in French jails for the growing population of Muslim prisoners in this article from NYT earlier this month by Craig Smith.

From the standpoint of growing self-critiques of French failure to integrate its Muslim population, particularly following the recent murder of the Dutch artist, the article is a searing indictment. It also is suggestive of why concerns about the effects of high US incarceration rates for low-level criminality should not be dismissed lightly. It further underlines some of the observations above about the Salvadoran deportees who have found their way into Mara Salvatrucha, etc.

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A couple of months ago, Bondra pointed out for us the potential for disaster lurking in the growth of Central American gangs and the increasing indications of some linkages with Middle Eastern terrorism and Al Qaeda.

The expansion of the geographic zone of attention is part of the broader recognition that the nature of "the Al Qaeda threat" is continually morphing. As Peter Bergen argues, it is not simply an organization anymore but is also a movement; that those it inspires are as or more likely to come from Europe as from majority-Muslim countries; and the means, methods and networks used to harm the US and "the West" more broadly are likely to be far more varied than what we've come to think of as the "classic" Al Qaeda modus operandi.

Of particular concern in the Western Hemisphere is El Salvador's Mara Salvatrucha. The LA Times' Kevin Silverstein has a new piece focusing on the domestic problems for El Salvador presented by the gangs, their links to the prison population in the US, especially California, and measures being taken by El Salvador to crack down on the gangs.

Government officials, including Deputy Citizens' Security Minister Rodrigo Avila, blame the violence at least in part on the deportation of nearly 12,000 Salvadorans with criminal records from the United States since 1998. Many are prison-hardened former gang members in Los Angeles and other U.S. cities who were sent back here as illegal immigrants.

"The deportations are at the core of the problem," Avila said. "Gangs here now copy the whole L.A. gang culture, the way they talk, the clothes they wear and the absolute ruthlessness."

Many deportees simply join their counterpart gangs here upon arrival, often gaining leadership roles because they are generally the most violent in the ranks, National Civil Police Chief Ricardo Menesses said in an interview.
[...]
The brutality of the gangs' crimes is increasingly horrific. [...]In September, M-18 members attacked a teenage girl in San Salvador, stabbing her in the neck and abdomen before beheading her, police said. Gang rivalries were at the root of the killing of a 16-year-old mother here last year. Gang members also killed and dismembered her 5-month-old daughter.

A number of organizatons have protested the heavy-handed tactics being used as ultimately counter-productive, and their calls for a different approach seem to have had at least a modest effect. Indiscriminate roundups had earlier resulted in all but a small percent of those brought in by the authorities actually being arrested and charged with criminal activity. More recently, the government's operations seem to be better targeted and, they claim, producing results in reduced homicides and fewer "no go" areas. And the general Salvadoran public is supportive of most anything that will limit the impact of the gangs on their lives.


The most troubling part of the story, from my view, is the dimension of alienation described, and the role of the gangs in offerng an identity to deracinated young men. They are certainly of quite a different class in terms of family income, education and social status from the alienated young Muslim migrants described by Marc Sageman (Understanding Terror Networks) as the primary energy source for Al Qaeda-type groups in Europe. But there are some unfortunate similarities as well, including the strong group identity that appears to "justify" incomprehensible levels of violence against "enemies" of the group.    more »

[UPDATE 12-10-04 from 12-4-04] Jonathan Chait finds himself puzzled over why those on the Right are embracing with glee a new study showing academics have a decidedly Democratic tilt.

After all, these studies show that some of the best-educated, most-informed people in the country overwhelmingly reject the GOP. Why is this seen as an indictment of academia, rather than as an indictment of the Republican Party?
[...]
Second, professors don't particularly want to be Republicans. In recent years, and especially under George W. Bush, Republicans have cultivated anti-intellectualism. Remember how Bush in 2000 ridiculed Al Gore for using all them big numbers?

That's not just a campaign ploy. It's how Republicans govern these days. Last summer, my colleague Frank Foer wrote a cover story in the New Republic detailing the way the Bush administration had disdained the advice of experts. And not liberal experts, either. These were Republican-appointed wonks whose know-how on topics such as global warming, the national debt and occupying Iraq were systematically ignored. Bush prefers to follow his gut.

In the world of academia, that's about the nastiest thing you can say about somebody. Bush's supporters consider it a compliment. [...]

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Ellen Goodman nails the constant whingeing on the Right about the Left's dominance of academia:

What next? Quotas for Republican anthropologists?

It's just about as constructive (and attractive) as the Left's own never-ending application of diversity metrics in every social setting.

IMHO, what we should be more concerned about is the increasingly narrow and detached focus of academic specialties that professionalization has promoted. These tendencies encourage the self-selection process and reinforce political bias in the very definition of the scope of appropriate academic inquiry. Although George Will's recent op-ed on the Left's domination of academia falls into several of the traps Goodman identifies, he does underline this legitimate area of concern. He quotes a recent article by Mark Bauerlein, professor of English at Emory University and director of research and analysis at the National Endowment for the Arts, in the Chronicle of Higher Education. [From "Liberal Groupthink Is Anti-Intellectual," Nov 12 2004, sub req'd]

Bauerlein says that various academic fields now have regnant premises that embed political orientations in their very definitions of scholarship:

"Schools of education, for instance, take constructivist theories of learning as definitive, excluding realists (in matters of knowledge) on principle, while the quasi-Marxist outlook of cultural studies rules out those who espouse capitalism. If you disapprove of affirmative action, forget pursuing a degree in African-American studies. If you think that the nuclear family proves the best unit of social well-being, stay away from women's studies."

This gives rise to what Bauerlein calls the "false consensus effect," which occurs when, because of institutional provincialism, "people think that the collective opinion of their own group matches that of the larger population."

That would require new institutional vehicles and shifts in professional incentives that rewarded truly inter-disciplinary approaches to defining what questions need asking. Too often, fashionable multi-disciplinary centers are spaces for integrative conversations in name only, merely attracting the funding that allows scholars to till their personal little gardens.

A newsletter that's unfortunately becoming all too essential regular reading is Steven Aftergood's Secrecy News from the Project on Government Secrecy of the Federation of American Scientists. Today's issue (Nov 18, 2004) had the following alarming item.

* * * * * * * *

WILL CONGRESS CRIPPLE INTELLIGENCE OVERSIGHT?

Congressional oversight of intelligence may be sharply diminished as
a result of ongoing negotiations between House and Senate conferees
over pending intelligence reform legislation, the Los Angeles Times
reported yesterday.

"Sen. John D. 'Jay' Rockefeller IV (D-W. Va.), a member of the
conference committee, said the Senate's chief negotiators had
accepted a House demand stripping out all congressional oversight
of the national intelligence director," wrote Mary Curtius in the
Los Angeles Times.   more »

You may have wondered why in my prior post I insisted that the most urgent agenda item for the Democrats is to articulate a strong, clear, disciplined alternative vision to the Bush Admin in foreign policy. I would enlarge that claim to include like-thinkiing Republicans (both traditional internationalists and traditional conservatives).

I draw your attention to the post-election checklist for the foreign policies of Bush II. Prepared by one of the more enthusiastic supporters of the neo-conservative vision and agenda, and appearing in Friday's National Review Online, it merits careful study. The list, part of an article by Frank Graffney, is published in its entirety below. Since the purpose of its original publication was undoubtedly to maximize its broad dissemination, we will assist Mr Gaffney in his distribution efforts.

The important thing now, of course, is not simply to acknowledge past achievements [sic], but to build upon them. This will require, among other things:

• The reduction in detail of Fallujah and other safe havens utilized by freedom's enemies in Iraq � a necessary precondition not only to holding elections there next year, but to the establishment of institutions essential to a functioning and stable democracy;
• Regime change � one way or another � in Iran and North Korea, the only hope for preventing these remaining "Axis of Evil" states from fully realizing their terrorist and nuclear ambitions;
• Providing the substantially increased resources needed to re-equip a transforming military and rebuild human-intelligence capabilities (minus, if at all possible, the sorts of intelligence "reforms" contemplated pre-election that would make matters worse on this and other scores) while we fight World War IV;
• Providing, to the fullest extent possible, for the protection of our homeland � including the adoption of sensible policies on securing our borders and contending with illegal aliens, and by deploying effective missile defenses at sea and in space, as well as ashore;
• Keeping faith with Israel, whose destruction remains a priority for the same people who want to destroy us (and for the same reasons � i.e., our shared, "moral values") � especially in the face of Yasser Arafat's demise and the inevitable, post-election pressure to "solve" the Mideast problem by forcing the Israelis to abandon defensible boundaries;
• Contending with the underlying dynamic that made France and Germany so problematic in the first term: namely, their willingness to make common cause with our enemies for profit, and their desire to employ a united Europe and its new constitution � as well as other international institutions and mechanisms � to thwart the expansion and application of American power where deemed necessary by Washington;
• Adapting appropriate strategies for contending with China's increasingly fascistic trade and military policies, Vladimir Putin's accelerating authoritarianism at home and aggressiveness toward the former Soviet republics, the worldwide spread of Islamofascism, and the emergence of a number of aggressively anti-American regimes in Latin America.

   more »

Although Senator Kerry deserves to be excoriated for allowing himself to be politically pressured into semi-supporting invasion with a force authorization vote, invading Iraq was nowhere near the political radar screen until Bush gave his disastrous Axis of Evil speech, the speech that set the wrong course for his Presidency and should set your lever-pulling course on Tuesday. The decision to invade and conquer Iraq was and is entirely the property of George W. Bush. It was probably the most disastrous foreign policy decision in our nation's history, and its author should not be given the opportunity to strike again.   more »

They’ve been simmering for a while, but concerns surrounding possible connections between Middle Eastern terrorist groups and Central American gangs, particularly El Salvador’s Mara Salvatrucha, seem to be gaining some real momentum. Earlier this month, the Washington Times (generally speaking, one of my least favorite publications) published this piece about Adnan el-Shukrijuma   more »

As a former database programmer, I continue to be mystified by the inability of the federal government to use this simple technology effectively.

The latest example: no middle names on the no-fly list.

I just don't get it.