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Rockefeller and Roberts are now in an escalating press release over the NSA intercept story. Roberts says that contrary to what Rockefeller says in his letter release d yesterday, there were many things he could have done if he didn't thin k the NSA program was appropriate or legal. Roberts even says that Rockefeller expressed support for the program i n subsequent classified briefings. As readers of this site know, Roberts has a pretty good history of fibbin g when the White House requires it. For years he was far too passive on the Iraq WMD front, thou gh he's been getting action of late on the Niger business -- about which we'll say more later. I assume it was limited to the leaders of each bod y and the chair and ranking members of the intel committees. How much ab ility did Rockefeller have to get the rest of the senate intel committee to take the matter up? Who else was he legally permitted to communicate with about this? Whatever you think of this program, oversight is essential in such a cas e Let's get the details.
column in today's Washington P ost that advances a simple premise: the president "uniquely swears an oa th -- prescribed in the Constitution -- to preserve, protect and defend the Constitution." While Congress legislates for the 'in general', the p resident is the one who must face particular crises, ones whose dimensio ns, dangers and particularities legislators could not have foreseen. Thi s mix of responsibility and authority gives the president the unique and awesome power to set aside Congress's laws in the over-riding interest of securing the nation. This is a doctrine fraught with danger in a constitutional republic. But it is not a new theory and it is not without some merit.
discussed this in a post about an ear lier Pentagon report which argued that the power to set aside laws is "i nherent in the president." That principle is simply not reconcilable wit h the principles of our republic. But no less a man than Thomas Jefferso n considered a possible exception ... If memory serves, Thomas Jefferson -- when he was later thinking over th e implications of his arguably unconstitutional Louisiana Purchase (and again this is from memory -- so perhaps someone can check for me) -- a rgued that the president might find himself in a position in which he m ight have the right or even the duty to disregard the law or some stric ture of the constitution in the higher interests of the Republic. Jefferson's argument, however, wasn't that the president had the preroga tive to set aside the law. It was that the president might find himself in a position of extremity in which there was simply no time to canvas s the people or a situation in which there was no practicable way to br ing the relevant information before them. In such a case the president might have an extra-constitutional right (if there can be such a thing) or even an obligation to act in what he understands to be the best int erests of the Republic. The clearest instance of this would be a case where the president faced a choice between letting the Republic be destroyed or violating one of its laws. Having taken such a step, it would then be the obligation of the president to throw himself on the mercy of the public, letting them know the full scope of the facts and circum stances he had faced and leave it to them -- or rather their representa tives or the courts -- to impeach him or indict those who had taken it upon themselves to act outside the law. As I recall Jefferson's argument there was never any thought that the pr esident had the power to prevent future prosecutions of himself or thos e acting at his behest. Indeed, such a follow-on claim would explode wh atever sense there is in Jefferson's argument. If you see the logic of Jefferson's argument it is not that the presiden t is above the law or that he can set aside laws, it is that the presid ent may have a moral authority or obligation to break the law in the in terests of the Republic itself -- subject to submitting himself for pun ishment for breaking its laws, even in its own defense. Jefferson's arg ument was very much one of executive self-sacrifice rather than preroga tive. This is where Kristol and Schmitt's hypothesizing fails republican muster . The president may well find himself or herself in situations that the Congress could not have anticipated or ones where the well-being of the country requires the president to ignore the letter of the law. Certainly, at the first practicable moment the pres ident has to take the matter before the appropriate members of Congress, explain himself, request that the relevant laws be revised and open him self up to the possibility of real accountability for his actions. And yet it seems pretty clear that this is not what the president did. Th e White House gave briefings to four or six members of Congress and then prevented them from discussing the matter either with colleagues or wit h staff. That makes the consultation pretty close to meaningless. This is not an argument for an unfettered executive prerogative. Under o ur system of separated powers, Congress has the right and the ability t o judge whether President Bush has in fact used his executive discretio n soundly, and to hold him responsible if he hasn't. But to engage in d emagogic rhetoric about "imperial" presidents and "monarchic" pretensio ns, with no evidence that the president has abused his discretion, is f oolish and irresponsible. The Congress can't hold the president accountabl e or legislate on these matters for the future if they're never informed of what the president is doing. There may be some situa tions Congress can't have foreseen in advance; but Kristol and Schmitt a re talking about a situation the president has prevented the Congress fr om considering even after the fact. But this principle allows the president to make himself just that.
link) I've been suggesting that what's in play here in this NSA matter is a new technology of some sort -- one which conducts searches in ways that you just can't get warrants for.
here Kevin Drum pulls together sev eral threads of information that point in what figure is likely the corr ect direction. He concludes by writing: "It seems clear that there's something involved here that goes far beyond ordinary wiretaps, regardless of the technolog y used. Perhaps some kind of massive data mining, which makes it impossi ble to get individual warrants? Like I said, a bunch of information I've heard over the last 48 hours tel ls me he's on the mark here. Perhaps they're doing searches for certain pattern s of words or numbers, perhaps something as simple as a phone number. Bu t unlike 'traditional' wiretapping, in which you're catching the convers ations of a relatively small and defined group of people, this may invol ve listening in on a big slice of the email or phone communications in t he country looking for a particular phone number or code or perhaps a re ference to a particular name. From a technological point of view there's not really much outlandish abo ut this at all. This is just the sort of thing the NSA is in the busines s of doing overseas. But you can see how this would just be a non-starte r for getting a warrant.
Jon Alter: "I learned this week that on December 6, Bush summoned Tim es publisher Arthur Sulzberger and executive editor Bill Keller to the O val Office in a futile attempt to talk them out of running the story. Th e Times will not comment on the meeting, but one can only imagine the presidents desperation."
link) Over the last couple days I've heard informed speculation from several kn owledgeable sources that what is likely really at issue here is the natu re of the technology being deployed -- both new technology and technolog y which in the nature of its method of collection turns upside down our normal ways of thinking about what constitutes a reasonable or permissib le search.
He takes pains to point out that he is neither a lawyer nor a technical specialist - presumably, the latter referring to the techn ology being proposed for the non-FISA wiretaps that the Administration has put into place. And, he comp...
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