then it must be something we should not question. To me, at least, it seems clear that the liberal death star laid down some suppressing fire to give Democrats cover while they killed the Patriot Act. There are other possibilities for the timing of the NSA spy story: they could’ve used it to drown out the Iraqi elections or simply to coincide with the author’s book. Maybe the editors felt they had a damning story that they could release at an opportune moment. Perhaps a combination of all those. One thing is certain: it ain’t news and no matter how you feel about the program – legitimate scandal or a bunch of hooey – national security interests were the editors' least concern.
Another thing is certain: this president can’t fart sideways without his opponents screaming that he’s stifling debate or lashing out. It’s not every day that Newsweek sounds as unhinged and hysterical as kos or nonfamous.
UPDATE: This is a house of cards. Drudge did a little spade work and found executive orders from Clinton and Carter authorizing warrantless searches and surveillance. I, for one, have never been as impressed with Carter as in this instance. And here's Andrew McCarthy's take. Make no mistake, Democrats will proceed with the rhetoric of fear.
Meanwhile: Hugh Hewitt had Jonathan Alter, the writer of the Snoopgate piece, on his show. You can see a transcript of the interview here.
And finally - goodbye.
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http://markearnest.net/news.cgi?nid=187
Read -- learn -- stop drinking the Kool-Aid.
Also, re Drudge's reporting on Carter and Clinton, here are the actual facts. You'll have to go back to thinking less of Carter again.
http://thinkprogress.org/2005/12/20/drudge-fact-check
And yet another reliable conservative gets it:
Why Didn't He Ask Congress?
By George F. Will
Tuesday, December 20, 2005; A31
The president's authorization of domestic surveillance by the National Security Agency contravened a statute's clear language. Assuming that urgent facts convinced him that he should proceed anyway and on his own, what argument convinced him that he lawfully could?
Presumably the argument is that the president's implied powers as commander in chief, particularly with the nation under attack and some of the enemy within the gates, are not limited by statutes. A classified legal brief probably makes an argument akin to one Attorney General John Ashcroft made in 2002: "The Constitution vests in the president inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."
Perhaps the brief argues, as its author, John Yoo -- now a professor of law at Berkeley but then a deputy assistant attorney general -- argued 14 days after Sept. 11, 2001, in a memorandum on "the president's constitutional authority to conduct military operations against terrorists and nations supporting them," that the president's constitutional power to take "military actions" is "plenary." The Oxford English Dictionary defines "plenary" as "complete, entire, perfect, not deficient in any element or respect."
The brief should be declassified and debated, beginning with this question: Who decides which tactics -- e.g., domestic surveillance -- should be considered part of taking "military actions''?
Without more information than can be publicly available concerning threats from enemies operating in America, the executive branch deserves considerable discretion in combating terrorist conspiracies using new technologies such as cell phones and the Internet. In September 2001, the president surely had sound reasons for desiring the surveillance capabilities at issue.
But did he have sound reasons for seizing them while giving only minimal information to, and having no formal complicity with, Congress? Perhaps. But Congress, if asked, almost certainly would have made such modifications of law as the president's plans required. Courts, too, would have been compliant. After all, on Sept. 14, 2001, Congress had unanimously declared that "the president has authority under the Constitution to take action to deter and prevent acts of international terrorism," and it had authorized "all necessary and appropriate force" against those involved in Sept. 11 or threatening future attacks.
For more than 500 years -- since the rise of nation-states and parliaments -- a preoccupation of Western political thought has been the problem of defining and confining executive power. The problem is expressed in the title of a brilliant book, "Taming the Prince: The Ambivalence of Modern Executive Power," by Harvey Mansfield, Harvard's conservative.
Particularly in time of war or the threat of it, government needs concentrated decisiveness -- a capacity for swift and nimble action that legislatures normally cannot manage. But the inescapable corollary of this need is the danger of arbitrary power.
Modern American conservatism grew in reaction against the New Deal's creation of the regulatory state, and the enlargement of the executive branch power that such a state entails. The intellectual vigor of conservatism was quickened by reaction against the Great Society and the aggrandizement of the modern presidency by Lyndon Johnson, whose aspiration was to complete the project begun by Franklin Roosevelt.
Because of what Alexander Hamilton praised as "energy in the executive," which often drives the growth of government, for years many conservatives were advocates of congressional supremacy. There were, they said, reasons why the Founders, having waged a revolutionary war against overbearing executive power, gave the legislative branch pride of place in Article I of the Constitution.
One reason was that Congress's cumbersomeness, which is a function of its fractiousness, is a virtue because it makes the government slow and difficult to move. But conservatives' wholesome wariness of presidential power has been a casualty of conservative presidents winning seven of the past 10 elections.
On the assumption that Congress or a court would have been cooperative in September 2001, and that the cooperation could have kept necessary actions clearly lawful without conferring any benefit on the nation's enemies, the president's decision to authorize the NSA's surveillance without the complicity of a court or Congress was a mistake. Perhaps one caused by this administration's almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled.
Charles de Gaulle, a profound conservative, said of another such, Otto von Bismarck -- de Gaulle was thinking of Bismarck not pressing his advantage in 1870 in the Franco-Prussian War -- that genius sometimes consists of knowing when to stop. In peace and in war, but especially in the latter, presidents have pressed their institutional advantages to expand their powers to act without Congress. This president might look for occasions to stop pressing.
From The Wall Steet Journal
Wiretap Furor Widens Republican Divide
While Security Camp Claims Justification,
Civil Libertarians See an Intrusion on Rights
By NEIL KING JR.
Staff Reporter of THE WALL STREET JOURNAL
December 22, 2005; Page A4
WASHINGTON -- President Bush's claim that he has a legal right to eavesdrop on some U.S. citizens without court approval has widened an ideological gap within his party.
On one side is the national-security camp, made even more numerous by loyalty to a wartime president. On the other are the small-government civil libertarians who have long held a privileged place within the Republican Party but whose ranks have ebbed since the 2001 terrorist attacks.
The surveillance furor, at least among some conservatives, also has heightened worries that the party is straying from many of its core principles the longer it remains in control of both the White House and Congress.
Conservatives have knocked heads in recent months over the administration's detainment and treatment of terrorist suspects, and as recently as yesterday over provisions of the Patriot Act. Strains also have grown among conservatives over government spending and whether to loosen U.S. immigration rules.
But the current debate over using the National Security Agency for domestic surveillance -- which the administration has defended as legal and necessary -- hit a rawer nerve because it pits national-security concerns against a core constitutional right, in this case, the Fourth Amendment right against unreasonable searches and seizures.
"It seems to me that if you're the president, you have to proceed with great caution when you do anything that flies in the face of the Constitution," said Warren Rudman, a former Republican senator from New Hampshire who has served on a number of government intelligence advisory boards. He calls the administration's surveillance program "a matter of grave concern."
Since 1978, Congress has required the executive branch to seek warrants through a secret federal court for domestic eavesdropping on foreigners or U.S. citizens suspected of terrorism or espionage. Such permission is all but automatic and usually is granted within hours. The court granted warrants at the rate of almost five a day last year -- and rejected none.
President Bush and his top aides argued this week that they were on solid legal ground in ordering -- without going through the secret court -- large-scale eavesdropping of communications between the U.S. and other countries to thwart potential terrorist attacks. They claim they had the authority to conduct the spying under the president's powers as commander in chief, as well as under a congressional resolution that approved the use of force in Afghanistan in 2001.
Yet some prominent conservatives reject that argument. Some even have accused the administration of treading on the Constitution and stretching the prerogatives of the presidency to the detriment of balanced government.
David Keene, chairman of the American Conservative Union, described the spy program as a case of "presidential overreaching" that he said most Americans would reject. Columnist George Will wrote in a Washington Post opinion piece that "conservatives' wholesome wariness of presidential power has been a casualty of conservative presidents winning seven of the past 10 elections."
Bob Barr, a Georgia conservative who was one of the Republican Party's loudest opponents of government snooping until he left Congress in 2003, says the furor should stand as a test of Republicans' willingness to call their president to task. "This is just such an egregious violation of the electronic surveillance laws," Mr. Barr says.
Sen. Arlen Specter, the Pennsylvania Republican who chairs the Judiciary Committee, has called the program "inappropriate" and promised to hold hearings early next year. Republicans joining him include centrist Sens. Chuck Hagel of Nebraska and John Sununu of New Hampshire, along with limited-government types like Larry Craig of Idaho.
The three, along with Sen. Olympia Snowe of Maine, have sided with Democrats in the Patriot Act fight, citing concerns the government is running rough-shod over civil liberties in the name of the war on terrorism. Without Senate approval by Dec. 31, a bulk of the law's key provisions would expire. Negotiations over a compromise continued yesterday.
Some other top Republicans have defended the president's right to conduct surveillance outside congressionally mandated rules. Sen. Trent Lott of Mississippi summarized the argument: "I want my security first," he told reporters when news of the program broke last week. "I will deal with all the details after that."
Prominent neoconservatives William Kristol and Gary Schmitt opined earlier this week that the president has the authority to collect foreign intelligence "as he sees fit," even within the U.S. And no matter how much people might wish it, they wrote, "Congress cannot legislate for every contingency."
Vice President Dick Cheney portrayed the dispute as one entirely about presidential power. "I believe in a strong, robust executive authority, and I think that the world we live in demands it," he told reporters while traveling abroad on Tuesday.
Some conservative critics contend that the fault lines within the party are easy to trace. As with so much else, they say, the trail leads to Iraq.
"From the beginning, the folks who thought it was a good idea to go into Iraq have found good reason to think that all other Bush policies, from torture to domestic surveillance, are justified," said Robert Levy, a conservative legal scholar at the libertarian Cato Institute. "This is just one in a litany of ongoing events that have separated the noninterventionist wing of the Republican Party from the neocon wing."
--Anne Marie Squeo contributed to this articl
I hadn’t planned on responding to the anonymous comments for a few reasons. First, the Think Progress hair splitting seemed to focus on the word “American” in Drudge’s heading – since I did not link to Drudge, but rather directly to the executive orders, I felt that the arguments did not refute anything in my post. The reason I linked the two executive orders was to point out that Bush’s actions were entirely consistent with what other presidents had done before him.
Second, I resented that the George Will article was cited because I was therefore obligated to read it. Such dullness should not be inflicted on anyone. And then I noticed a Robert Novak column cited, which is even worse. Have you no humanity, anonymous?
I did get quite a few chuckles from reading the Mark Earnest’s post. I empathize with some of his concern about the government spying on us citizens – but that empathy only tolerates such concern in small doses. The squirly MSNBC article, meant to make us worry about Pentagon monitoring, actually supports my argument that such activity is not unprecedented. The MSNBC line that produced the loudest guffaw: “Some of the targets of the U.S. military’s recent collection efforts says they have already gone too far.” Really, Sherlock? That’s some top notch investigating by the NBC Investigative Unit.
But back to Mark, who earnestly claims we are doing an “unprecedented amount of spying”…I certainly don’t know that to be the case & I doubt that any individual in the government – nay, in the intelligence community – could make such a claim. The government is big and bloated and the left hand doesn’t know what the right hand is doing. That’s not conspiracy but rather bureaucracy. However, Mark seems to know its true. Yet, later in that same post he mocks the people who want the fever-swamp conspirazoids (paraphrasing) to cite specific instances of abuse – calling such a talking point ignorant because:
“… the very use of the secret warrants, secret courts, and spying without warrants is SECRET. You cannot find out how the government is using these new powers….”
Yet, that very ignorance doesn’t prevent him from assuming that the Government – with a big oppressive capital “G” - is engaged in an unprecedented amount of spying. He is simply confused.
And going back to Think Progress. Judd seems to be mixing his facts and has displayed some selective amnesia. Particularly in regards to Gorelick’s testimony. Judd wants to say that physical and electronic searches are different, but the court treats them as the same.
http://thinkprogress.org/author/judd/
I’m all for getting to the bottom of all this – but only in about 30 or so years. There seems to be some confusion on what the debate is about. Is the president overstepping his boundaries? Is spying on Americans without a warrant unprecedented? What are the rights of American citizens or legal immigrants engaged with terror groups and are those rights be violated? I suspect the President will come out on top of each of those questions. And then there’s the political aspect, which, ultimately, will favor the administration and the Republicans supporting him.
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