December 23, 2005

WHAT, YOU THOUGHT WINK, WINK MEANT I APPROVED?:

Among Those Told of Program, Few Objected (DOUGLAS JEHL, 12/22/05, NY Times)

As members of Congress seek more information about the eavesdropping program authorized by President Bush, their requests are being complicated by the fact that Congressional leaders in both parties acquiesced in the operation. [...[

"The record is clear; Congressional leaders at a minimum tacitly supported the program," Representative Peter Hoekstra of Michigan, the chairman of House Intelligence Committee, said this week. Mr. Hoekstra said Democrats should "attempt to understand why their leaders did not feel the same sense of outrage about the program" that some in the party are now expressing. [...]

Senator John D. Rockefeller IV of West Virginia, the top Democrat on the committee, released a letter this week that he sent to Vice President Dick Cheney in 2003 expressing concern about the program.

But Senator Roberts issued a statement on Tuesday saying that he had "no recollection of Senator Rockefeller objecting to the program at the many briefings he and I attended together," and that "on many occasions Senator Rockefeller expressed to the vice president his vocal support for the program; his most recent expression of support was only two weeks ago."

At least seven Democratic lawmakers are known to have been briefed about the program since its inception in 2001, and only two, Mr. Rockefeller and Representative Nancy Pelosi of California, are known to have expressed written concern about it. A third, Tom Daschle of South Dakota, the former Senate Democratic leader, said in an e-mail message on Thursday that he too had expressed "grave concern for this practice" of eavesdropping on American citizens inside the United States.

Among the others, Representative Jane Harman of California, the top Democrat on the House Intelligence Committee, acknowledged in a statement this week that she had been briefed about the program since 2003 and regarded it as "essential to U.S. national security."


Mustn't Tom Daschle have worked in the phrase "deeply troubling" at some point?

MORE:
Power We Didn't Grant (Tom Daschle, December 23, 2005, Washington Post)

The shock and rage we all felt in the hours after the attack were still fresh. America was reeling from the first attack on our soil since Pearl Harbor. We suspected thousands had been killed, and many who worked in the World Trade Center and the Pentagon were not yet accounted for. Even so, a strong bipartisan majority could not agree to the administration's request for an unprecedented grant of authority.

The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress -- but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language.


The resolution to which Mr. Daschle refers reads in part: "[T]he President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States..." In other words, Congress recognized that not only does the president have broad authority and powers in the national security area but they are constitutional and so can not be diminished nor need be enhanced by them.

MORE:
Presidential Wiretapping: Disaggregating the Issues (Cass Sunstein, December 20, 2005, The Faculty Blog)

The legal questions raised by President Bush's wiretapping seem to me complex, not simple. Here is a rough guide: (1) Did the AUMF authorize his action? (2) If not, does the Constitution give the President inherent authority to do what he did? (3) If the answer to (1) or (2) is yes, does his action violate the Foreign Intelligence Surveillance Act (FISA)? (4) If the answer to (3) is yes, is FISA constitutional, or is it inconsistent with the President's inherent authority? (5) If the answer to (1) or (2) is yes, does the wiretapping nonetheless violate the Fourth Amendment?

I have already suggested that it is plausible to give a "yes" answer to (1), certainly if we do not consider the effect of FISA. It needn't be conclusive that Congress didn't "intend," with the AUMF, to authorize wiretapping. Once the AUMF is in place, the President can certainly engage in surveillance of some kinds, eg, surveillance of Al Qaeda in Afghanistan. It isn't a big stretch to say that he can engage in surveillance of people with known Al Qaeda affiliations who are calling to or from the United States. (If Osama Bin Laden is calling New York, it's clear, I think, that the AUMF allows the President to listen to the call.) If there were doubt about the President's power under the AUMF, a plausible claim of inherent power, under (2), would justify reading the AUMF to allow the President to engage in surveillance. (Of course nothing I have said suggests that under the AUMF, the President can engage in surveillance of people without a tie to organizations or nations associated with the attacks of 9/11.)

What about (2)? The Supreme Court has not decided this question, and some lower courts seem to have ruled in the President's favor on this one. Orin Kerr, at the Volokh Conspiracy, has an excellent post that covers this issue (and others I am discussing here). It is not clear that the President is right on (2), but it isn't clear that he is wrong.


Posted by Orrin Judd at December 23, 2005 6:45 PM
Comments

Tom Daschle and the Democrats are indeed "deeply troubling" and in deep trouble too.

Posted by: jdkelly at December 23, 2005 7:42 PM

All of this trouble would have been averted if we had just agreed to delete Article II from the Constitution whenever a Republican is President.

Posted by: Jim in Chicago at December 23, 2005 7:58 PM

I swear that I will never, ever vote for a Democrat to national office. They have gone from being unserious about national security to a detriment.

Posted by: Rick T. at December 23, 2005 8:52 PM

Peter Hoekstra was on Hannity today (hosted by Mark Levin), and gave about a 10-12 minute interview, answering questions on 'the program' and the briefings on said 'program' in a forthright, honest, and direct manner.

He basically said that the White House gave about 2 briefings a year to him, Jane Harman, Pat Roberts, and Rockefeller (the Intelligence Committee members). The other members who were briefed (Hastert, Pelosi, Frist, Reid, and maybe more) were done separately. Hoekstra said the members had opportunity to ask questions and to object. His summation was that President Bush had given these members the ultimate weapon, if they felt something was wrong - going public. No one did.

I'm with Rick T. - No one in the Democratic Party is worthy of guarding anything in America, not even a toxic waste dump. Here's to 60+ Senate seats in 2006. And if that happens, look for some dramatic shake-ups in the possible Democratic contenders in 2008.

Posted by: jim hamlen at December 23, 2005 11:25 PM
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