December 30, 2005

Expect Many Sudden New "Foreign Correspondents"

From CNN.com:

Inquiry into leak of NSA spying program launched
CNN
Friday, December 30, 2005

WASHINGTON (CNN) -- The Justice Department has opened an investigation into leaks to the media about the National Security Agency's classified domestic surveillance program.

For those who missed it in an earlier post: Heh.

I anticipate a number of journalists will get a sudden yen for assignments in Venezuela or Russia or France -- countries with no effective extradition treaty with the United States (at least not one they honor where political crimes of conscience are concerned, such as when Ira Einhorn murdered his girlfriend, Holly Maddux). Just in case they suddenly need to retire from Bush's police state to breath freely in some Communist or socialist paradise, you see.

I expect the Captain Renaults of the MSM will be shocked, shocked to find themselves hauled before FBI agents and forced to testify, or else spend some time in the Judy Miller memorial cell themselves. How could the monstrous Bush administration demand they name names, when the New York Times has already formally granted anonymity to the leakers, to protect them against retaliation by disgruntled law-enforcement officials?

Nearly a dozen current and former officials, who were granted anonymity [by the New York Times] because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation's legality and oversight.

The CNN story continues the fine MSM tradition of knowingly writing legal nonsense because it conforms to how the journalist thinks the world should work, regardless of how it actually does work in real life -- though at least now they're putting them into quotation marks, so we're making some progress:

"FISA says it's the exclusive law to authorize wiretaps," Democratic Sen. Russ Feingold of Wisconsin told CNN. "This administration is playing fast and loose with the law in national security. The issue here is whether the president of the United States is putting himself above the law, and I believe he has done so."

Though I don't want to judge before all the facts are in, it does appear that Sen. Feingold lied; "FISA," the Foreign Intelligence Surveillance Court of Review, in fact said the polar opposite in Sealed Case No. 02-001:

Finally, in 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall” between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

[Emphasis in original Hinderaker post from Power Line.]

Here is the other CNN quotation:

Sen. Jack Reed, D-Rhode Island, said the president could have gone back to a FISA court to get approval even after the wiretaps started if he was concerned about speed. "I'm just stunned by the president's rationales with respect to the illegal wiretapping," Reed said. "There are two points that have to be emphasized with respect to the FISA procedure: They're secret and they're retroactive."

But of course, if the wiretapping is legal, because the president has the inherent legal authority to order wiretapping for national-security purposes (as even the FISA court itself agrees he does), it doesn't suddenly become illegal just because he fails to seek the retroactive cover of the FISA court that he doesn't need in the first place. The fact that the Bush administration sought 5,645 wiretap authorizations from the FISA court since 9/11 shows the president is not unmindful of the requirements for warrants when the conditions of the NSA intercept program are not met.

Finally, CNN quotes the well-known constitutional scholar, Tom Daschle (D-Nowhere), on whether the congressional Authorization for the Use of Military Force enacted after the attacks buttressed Bush's residual plenary power to order such wiretaps:

However, former Senate Majority Leader Tom Daschle, who negotiated the congressional resolution with the White House, disputes the claim that the authorization to use force permitted Bush to launch the secret wiretaps without court authorization. (Full Story)

You have to click on the misleadingly labeled "Full Story" to discover that what they really mean by saying that Daschle "disputes the claim" is that Daschle says the Senate never actually discussed the issue explicitly... which is not quite the same thing as discussing it and deciding that the law they were passing did not authorize tapping the phone calls and e-mails of foreign al-Qaeda members communicating with their agents inside the U.S., isn't it?

And of course, there is the killer question to ask of any elected official, Democrat or RINO, inveighing against the program: "All right, so are you actually calling for the NSA to stop monitoring al-Qaeda calls and e-mails?"

If Feingold says yes, as he surely would (he was the only senator to vote against the Patriot Act in 2001), then once again, the Democrats are on record caring more about Zacarias Moussaoui's civil liberties than the lives of American citizens. And if Jack Reed says no, as he probably would -- along with Sens. Nelson (D-NE), Nelson(D-FL), Specter(R-PA), Salazar (D-CO), and Clinton (D-NY), et al -- then he is exposed as the worst sort of hypocrite: he wants those involved to be labeled as corrupt tyrants, so he can gain political advantage; but he nevetheless wants the program to continue, so his kids will be safe.

This is as bad as those who want any sort of aggressive questioning to be illegal, so they can posture to the Europeans about America's moral purity... but they still want interrogators to break the law when we need to obtain intelligence vital to our security. (Then they want to prosecute the "lawbreakers," of course.)

This story is such an albatross for the Democrats and their willing accomplices in the media. What does the charge boil down to? George W. Bush cut through the legal red tape in order to protect Americans from being blown up. Yeah, I can see how that's going to turn the heartland against him.

Both John McIntyre and Tom Bevan at Real Clear Politics have argued repeatedly (here, here, and here) that this issue is an incredible political loser for the Democrats. Both Fred Barnes and Mort Kondrake have noted that it was this overreaching by the Democratic house organ, the New York Times, and the Democrats' falling upon it (along with the demand to cut and run from Iraq), that more than anything else confirmed Bush's vigorous defense of his administration's war conduct in Iraq and Afghanistan and likely helped turn around the president's job-approval numbers.

The Left's attempt to gin up a Watergate-style scandal out of the NSA issue has been exploding in their faces since the very first day of it; at what point do they just stop, take a stress pill, and ask if this is really in their best interests?

In any event, the media has made such a stink about this and rubbed the leaking into the administration's face so blatantly that now they've drawn yet another federal investigation (added to the one already in place to find out who leaked the classified information about the CIA's secret prisons in Eastern Europe, as Power Line reminds us). So at least it's had some minor good effect to slightly counterbalance the huge blow to American national security: maybe these blatantly illegal leaks will result, after a few prosecutions and lengthy prison terms, in the White House finally gaining control of the CIA and NSA.

Hatched by Dafydd on this day, December 30, 2005, at the time of 3:40 PM

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The following hissed in response by: Bill Faith

The above hissed in response by: Bill Faith at December 30, 2005 5:42 PM

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