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July 03, 2006

Bill Keller: The Unitary Editor

The unfolding train wreck at the New York Times continues. Executive Editor Bill Keller has demonstrated a truly impressive mastery of the flexible urban viewpoint for which the Times is justly renowned. He argues, at various times, that we should not allow governments to keep secrets, that the decision was "agonizing", that our friends in the international community (folks like Abu Musab al-Zarqawi - if only the Times had gotten a tip on that impending airstrike!) - can only benefit when we allow greater transparency in our secret anti-terror programs.

But nowhere in all this talk of openness and transparency did Mr. Keller find time to mention that the publication of classified information is against the law. And make no mistake: revealing our national secrets is illegal. There is no press exemption. So it would seem there are limits to the public's right to know, and the knowledge that the Times has repeatedly broken the law is a detail that in Bill Keller's lofty editorial judgment, we need not be burdened with.

In retrospect, we can sympathize with The Times. With so many contradictory positions to reconcile, life must get extremely confusing. For instance, it would seem transparency is not an unalloyed good. He's all in favor of transparency for government, but not so keen on openness when it comes to how the Times does business. Fair enough. And even the government, when it suits the media, is allowed to keep some secrets. In the Times' estimation, the outing of a single "covert" agent is a dangerous national security breach requiring a special prosecutor; even when the charging statute is one the Times itself held to be unconstitutional when it was passed. The outing of entire classified anti-terror programs, on the other hand, is not only safe, but serves the public good!

"How can this be?", you may be asking yourself. The answer is simple. Bill Keller is a Very Smart Man - so smart that he can be trusted to make major national security decisions without any oversight. He has formulated the Theory of the Unitary Editor, which goes something like this. On the first day of the Constitutional Convention, the Founding Fathers created the New York Times. And they looked upon their creation, and they saw that it was good. And they clearly intended for it to have a tremendous amount of power for, as our Democrat brethren-in-Christ are always reminding us, Thomas Jefferson said it would be better to have a press and no government, didn't he? So the second day the Framers, via the First Amendment, explicitly created a Fourth Branch of government which operates completely independently of the other three branches. Furthermore, unlike the other three branches, this fourth branch was to be able to violate laws passed by our elected representatives at any time with impunity, since the First Amendment would operate as a virtual trump or "get out of jail free" card. Now this may alarm some of you somewhat, but you should not worry. We the Little People should simply trust that the Times would never abuse this tremendous power, because although the press are not subject to any external oversight or checks and balances, the Founders did provide for an entirely sufficient internal oversight system in the form of Executive Editors. This is where the Theory of the Unitary Editor comes in.

According to the Theory of the Unitary Editor, whenever a Times reporter is given unauthorized classified information, Bill Keller's editorial conscience allows him to unilaterally declassify national secrets, bypass Congress, and violate the law in the interest of keeping the nation safe from a popularly elected President who he fears may be bypassing Congress and breaking the law.

And the best news of all is that even though the justification for releasing classified information in the first place was that the government was being excessively secretive, it now turns out that the program wasn't even a secret!

Eric Lichtblau today, on CNN’s Reliable Sources:
“USA Today”, the biggest circulation in the country, the lead story on their front page four days before our story ran was the terrorists know their money is being traced, and they are moving it into—outside of the banking system into unconventional means. It is by no means a secret.

Long-time Times readers must be so relieved, if a bit puzzled. If the information wasn't secret, what on earth was poor Mr. Keller so agonized about?

And the reaction of Congress does seem to be a bit of a head-scratcher. If this was common knowledge, whence all the screeching? Was the government being secretive or not? If it wasn't, why maliciously draw unneeded attention to a program that was catching terrorists and those who fund them?

And finally, if this information was in the public domain why didn't the Times source its story from publicly available sources, and thus make itself immune to criticism?

Undoubtedly in the interest of openness and transparency, Mr. Keller will be forthcoming with the answers in no time. After all, the public has a right to know.

Posted by Cassandra at July 3, 2006 06:25 AM

Comments

We could say more.
But then we are working when others are fishing.

Posted by: spd rdr at July 3, 2006 01:54 PM

If they're fishing then they're idiots Spd. Way too many amateurs out there right now! It's a scary, scary thing to observe!!!

Better to sit at home soaking up the A/C and embibing good Conch Republic Rum! ;-)

Yol Bosun!

Posted by: JarheadDad at July 3, 2006 02:18 PM

The New York Unrinal? hey call it the john the water closet the throne

Posted by: Dirty Bird at July 3, 2006 02:23 PM

Good helk. And here I was thinking that Jean Fraude Kerry had no master for Le Grande Flippe Floppe.
I sit corrected whilst I sip Le Mon D' Aid in my above ground pool.

Posted by: Cricket at July 3, 2006 03:07 PM

The Man is a harsh taskmaster, mr rdr :)

Posted by: Cassandra at July 3, 2006 05:38 PM

JHD:

Dear Sovay just got back from Greece, where she was apparently served champagne and orange juice for breakfast. She doesn't drink (many great things are wasted on that girl), but she did pass along the formula for something called a "Mimosa," apparently after the tree.

I don't know how it compares to Conch Republic Rum, but I'll stand to it this year for the holiday. Well, that and the occasional beer.

Posted by: Grim at July 3, 2006 07:12 PM

RUM!!!!!!
Blast ye! That's the best idea I've heard all day!
Rum and a Congressional Holiday.
Aye, there's peace to be had yet.

Posted by: spd rdr at July 3, 2006 09:00 PM

Mimosa? Isn't that the one with Kahlua or is it one of the fruit drinks. I know I've had one of those before. Poor Sovay. So much potential wasted! Heh!

Speaking of Kahlua, have you ever had a Kelly's Buttery Nipple? Man! talk about good!

I'm about out of my last bottle of Conch Republic. I normally buy a case when I get down that way. Cassie was just down there but did she offer to resupply the Republic outposts? Nay! Marines, hmmmpff! Always dumping on the far outposts! I like the Durdy White and Knockemdown Key Rum. TLB likes the Islamorada Light. It was a pleasure funding the Rebellion! :-o

I wonder if you can buy over the internet. Hmmmm, off to do some searchin'! ;-)

Now if we can just get Bill Keller to take a day off eh Spd?

Posted by: JarheadDad at July 3, 2006 10:23 PM

What I know about buttery nipples, sir, cannot be put into print.

As for the rum, I love the story: "they declared war on the United States, surrendered immediately, and asked for foreign aid."

Posted by: Grim at July 4, 2006 03:14 AM

JHD:

Why am I not surprised? I wake up this morning and due to the vaguaries of MT your last comment didn't make it into my inbox... so the first thing I see is Grim babbling on about 'buttery nipples'. He was about to get an earful from me before I realize his comment was somewhat uncharacteristic and decided to see what had caused it.

Happy Independence Day. The oink cadre is alive and well.

Posted by: Cassandra at July 4, 2006 06:58 AM

Oink! Oink!

Wanna' see my cute little curly tail? :-o

Actually it is one heckova' drink! The first one I had was at the Compleat Angler sitting in the chair formerly a fav of Hemingway. Talking across the table to one of his granddaughters as a matter of fact.

One of TLB's girls had an allegic reaction to some medication last night and is in the burn ward down at Grady Hospital. Our plans have been shuffled so we'll be downtown visiting. Amazing what can happen when medicine goes awry.

I'm sure the kids will struggle along without us just fine! Heh! From the looks of the keg in the back yard I'm guessing it won't be a problem at all! Dam* kids! :-o

Posted by: JarheadDad at July 4, 2006 10:40 AM

A keg, eh? You should have invited me over to supervise.

Actually, I'll be working all day -- which I'm glad to do. Contract ends a week from tomorrow, so there will be plenty of time for relaxation then. For now, I'm only too glad to spend Independence days serving the military.

Posted by: Grim at July 4, 2006 11:01 AM

Ah, blast, an Instalanche. Well, given the increased traffic, I'm glad I edited my original comments on the subject of buttery nipples.

Posted by: Grim at July 4, 2006 12:10 PM

Childish and inane.

What is it going to take for you wingnuts to grow up?

Posted by: The Liberal Avenger at July 4, 2006 12:44 PM

TO: Villainous
RE: Just So

Their action is on a par with telling our enemies, during WWII, that we had cracked the Imperial Japanese Naval codes or had the Nazi Enigma machine.

I am convinced that the New York Times has committed treason. Therfore, I say that its properties and assets should be seized. Its owners and staff—responsible for this treason—should be charged, tried, convicted and imprisoned.

DEATH TO NYT!

Regards,

Chuck(le)
[They [corporations] cannot commit treason, nor be outlawed nor excommunicated, for they have no souls. -- Sir Edward Coke, Lord Chief Justice of England, 1628]

P.S. However, corporations can be 'killed'.

Posted by: Chuck Pelto at July 4, 2006 12:48 PM

TO: The [Il]Liberal Avenger
RE: Projection, Anyone?

"What is it going to take for you wingnuts to grow up?" -- T[I]LA

Seems to me that you're describing your own paramount 'issue', compadre.

Regards,

Chuck(le)

Posted by: Chuck Pelto at July 4, 2006 12:50 PM

Islamorada! :) That's where we were most of the time, JHD. And I tend to like Cruzan rum, though I didn't have much rum while we were down there.

Funny story: when we were down in Key West though, I ordered a double Kahlua on the rocks (about the only non-beer drink I ever get at a bar) and got the funniest look I've ever gotten from a bartender. He told me he's been tending bar for over 10 years and has never had anyone order that drink.

Had to laugh. And he gave me an enormous one, rather than the stingy ones I normally get. Nice guy.

Posted by: Cassandra at July 4, 2006 12:53 PM

Liberal Avenger:

If that's your idea of a refutation, no wonder y'all are always so angry :)

Happy Fourth of July!

Cheers.

Posted by: Cassandra at July 4, 2006 12:55 PM

TO: Cassandra
RE: Rummy Beverages

"...I tend to like Cruzan rum..." -- Cassandra

I prefer Myers.

All the regulars get 'mixed' reviews.

Regards,

Chuck(le)
P.S. Joyous Independence Day, all....

Posted by: Chuck Pelto at July 4, 2006 01:03 PM

I do hope the Liberal Avenger isn't going to be a stranger.

There is a searing irony to his comment the likes of which I have not encountered since the last time I heard someone utter the phrase "it's a no brainer".

Posted by: Pile On® at July 4, 2006 01:29 PM

Raising a glass to you today Cassandra. What a perfectly lovely post - it made my day.

I know Grimm is cringing over the Instalanch *grin* but it is a good thing for me. I'm so far behind in my blog reading I would have otherwise missed this wonderful prose.

Posted by: Teresa at July 4, 2006 01:42 PM

The publication of classified information is against the law? Wheresoever did you get that crazy idea? Why, just the other day, the Washington Post's Dana Priest reminded us that it's not against the law to publish classified information. Except in very, very narrow cases like, er, publishing information about intelligence. Other than that, though, whew! Home free!

Posted by: Christopher Fotos at July 4, 2006 01:53 PM

Congrats, Cass! Guess where I was just before I came here?

Posted by: MathMom at July 4, 2006 01:57 PM

Why do wingnuts hate the Constitution?

Are you for a Constitution or a King?

Ah yes, while we are at war, pushing 3,000 killed, almost 19,000 wounded, costs between 500 and 1000 MILLION, let's write blogs making up cute new slogans. Degenerate the debate.


md

Posted by: md at July 4, 2006 01:59 PM

An unusually vapid, insipid and ill-argued post from a usually spot-on blogger. VERY disappointing, especially in light of the fact that Bush himself leaked details of the SWIFT surveillance plan in 2002.

Posted by: Richard Perle at July 4, 2006 02:00 PM

The publication of classified information is against the law? Wheresoever did you get that crazy idea? Why, just the other day, the Washington Post's Dana Priest reminded us that it's not against the law to publish classified information. Except in very, very narrow cases like, er, publishing information about intelligence.

Um... no. That's not what Dana Preist said. You are being dishonest. Priest was correct when he said (to paraphrase) that it's not against the law to publish classified information; what is illegal is exposing details of intelligence operations and methodology.

And it's interesting that you failed to mention that Preist was on Meet the Press and pointing out the inaccuracy (perhaps the intentional deception) of one of the most embarrassing windbags to supposedly represent the "conservative" view -- William Bennett. Priest's reply also made a not-so-veiled reference to Bennett's casino gambling peccadillos. I swear that both NBC and CNN invite Bennett on because he mollifies extreme rightist views that cannot in any sane way be called trule conservative or neoconservative -- while simultaneously embarrassing rational conservatives.

Do please try to get your facts straight when you post -- unless, of course, your goal was to demean Priest through obfuscation and dishonesty, in which case shame on you.

Posted by: Richard Perle at July 4, 2006 02:12 PM

As I mentioned before in another post, if indeed the "details" of this program were in the public domain already, the Times had no need to rely on "leaks" - they could have sourced their story entirely from material in the public domain.

Why, then, didn't they?

*crickets chirping*

Posted by: Cassandra at July 4, 2006 02:15 PM

You say that it is illegal for the press to expose a secret program, but I counter that this may be a discussion point only when the program in question is legal! When the governement is working outside and beyond the law then it is the presses job to challenge ANY of those activities before the public.

Posted by: Bryan at July 4, 2006 02:17 PM

That was poetry. Thank you.

Posted by: PC Martin at July 4, 2006 02:17 PM

And Dana Priest is not the authority on what is, and is not, against the law. Last time I checked, Congress is.

FROM ONE OF MY LINKS ABOVE:

in 1950, as Edgar and Schmidt also note, in the wake of a series of cold-war espionage cases, and with the Chicago Tribune episode still fresh in its mind, Congress added a very clear provision to the U.S. Criminal Code dealing specifically with “communications intelligence”—exactly the area reported on by the Times and James Risen. Here is the section in full, with emphasis added to those words and passages applicable to the conduct of the New York Times:

§798. Disclosure of Classified Information.

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

(b) As used in this subsection (a) of this section—
The term “classified information” means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;
The terms “code,” “cipher,” and “cryptographic system” include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications;
The term “foreign government” includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States;
The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;
The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.

Not only is this provision completely unambiguous, but Edgar and Schmidt call it a “model of precise draftsmanship.” As they state, “the use of the term ‘publishes’ makes clear that the prohibition is intended to bar public speech,” which clearly includes writing about secrets in a newspaper. Nor is a motive required in order to obtain a conviction: “violation [of the statute] occurs on knowing engagement of the proscribed conduct, without any additional requirement that the violator be animated by anti-American or pro-foreign motives.” The section also does not contain any requirement that the U.S. be at war.

One of the more extraordinary features of Section 798 is that it was drawn with the very purpose of protecting the vigorous public discussion of national-defense material. In 1946, a joint committee investigating the attack on Pearl Harbor had urged a blanket prohibition on the publication of government secrets. But Congress resisted, choosing instead to carve out an exception in the special case of cryptographic intelligence, which it described as a category “both vital and vulnerable to an almost unique degree.”

With the bill narrowly tailored in this way, and “with concern for public speech having thus been respected” (in the words of Edgar and Schmidt), Section 798 not only passed in Congress but, perhaps astonishingly in hindsight, won the support of the American Society of Newspaper Editors. At the time, the leading editors of the New York Times were active members of that society.

Posted by: Cassandra at July 4, 2006 02:21 PM

Bryan, Bill Keller is not qualified (and he has already admitted that he does not know) to decide before the fact whether a program is legal. The law already provides for Congressional oversight through the House Select Committee - that is the proper venue for complaints if you are worried about legality - NOT PUBLISHING OUR SECRETS ON THE FRONT PAGES OF THE NY TIMES.

Posted by: Cassandra at July 4, 2006 02:24 PM

What drug are you guys on? Seems rather potent...

Posted by: Sirkowski at July 4, 2006 02:24 PM

So here's a question:

If the Times has classified information that if published could stop the takeover of the US and the subversion of the Constitution by this Administration or any Administration, do we have a right to know as citizens? In your argument, we don't. We have to trust our fearless leaders even if they drive us off a cliff.

Personally I don't want to live in that sort of country. And apparently neither did our founding fathers who appeared willing to let the press mess up, publishing things they should not, rather than having the muzzled press you seem to prefer. The founding fathers had many British examples to consider when they set up our country and yet they chose not to restrict the press too much. Or give the President too much power, like a king.

Furthermore, the SWIFT monitoring program appears to have been in the public domain for several years, not least because the Administration bragged about it and telegraphed their intention to track international money flows. It would be a truly stupid terrorist who post 9/11 would shove money through the international banking system.

Posted by: Fred at July 4, 2006 02:32 PM

it's not just liberals that are critical of this administration - anyone that is truly a political "comservative" should be ashamed to ally themselves with the current republicans. thanks for hi-jacking my party, wingnuts. i understand you bush supporters - youre the same ones that said for years "lets just bomb the whole middle east and turn it into a parking lot" ..... until the iraq invasion became all about "freeing the noble iraqi people". give me a break - do you think anyone besides yourselves believes that you and your ilk care one bit about the iraqis? what a bunch of self delusional boobs. your boy chuck(le)pretty much sums up all of your viewpoints in my mind when he says "death to NYT" --- except you can substitute pretty much anything that the wingnuts dont like in for "NYT".

why dont you take a break from your bs-spewing activities for a minute and watch the shuttle launch happening in 5 minutes

Posted by: real conservative at July 4, 2006 02:33 PM

Let's see.

And it's interesting that you failed to mention that Preist was on Meet the Press and pointing out the inaccuracy (perhaps the intentional deception) of one of the most embarrassing windbags to supposedly represent the "conservative" view -- William Bennett.

On the internets, you can follow links and learn all kinds of things. E.g. what I say in the post:

Expose the Left's Ian Schwartz, being a younger man and having lower blood pressure than me, went back and reviewed that Meet the Press segment in which Postie Dana Priest, class act all the way, mocked Bill Bennett with a comment about how some people don't want casinos to be legal. Perhaps turnabout is fair play since Bennett wants to throw Priest in jail.

Then you claim I'm dishonest in reference to Priest's comments about publishing classified information, even though I quote her in full, including her definition of "intelligence" in that oh so narrow category of information whose publication can be prosecuted. Did you attend Logic School with Eric Licthblau?

And Dana Priest is a woman.

Nor would I have ever known about Priest's jibe against Bennett and gambling, unless I read my own post.

Other than that, man I'm nailed.

Posted by: Christopher Fotos at July 4, 2006 02:38 PM

It is illegal to publish names of covert operatives and their location and it is illegal to publish secret codes for communications. That's it...

There was no crime committed when the NY Times published the story about the Gov monitoring financial info.

Where is your outrage at the out of Valerie Plame a CIA operative. That was a text book case of breaking the law.

Why do you hate America and everything it stands for??

Posted by: Gus at July 4, 2006 02:57 PM

It is not against the law to publish classified information. Have you never heard of the Pentagon Papers?

That being the crux of your case here, why should we not toss this into the can without another thought?

http://www.washingtonpost.com/wp-dyn/content/article/2006/06/09/AR2006060901976.html

Posted by: Thom at July 4, 2006 03:01 PM

When the FREE press is demonized and the truth is denounced for doing its job, we are on a slippery slope of Fascism and a police state.

But...wait....that is what Republicans are all about. They hate a free America, free thought, free speech, working men and women and the very nature of what this country stands for.

I suggest sire that you READ the Constitution and good day sir:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Posted by: jennifer at July 4, 2006 03:16 PM

It is not against the law to publish classified information. Have you never heard of the Pentagon Papers?

Um, you clearly do not understand the position the SC took on that case.

Here is a hint:

Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint

Further, you may want to bother yourself by reading Title 18 : Section 798 before making such idiotic comments.

Posted by: The Ace at July 4, 2006 03:16 PM

When the FREE press is demonized and the truth is denounced for doing its job, we are on a slippery slope of Fascism and a police state.

Really?

Is that because you say so, or because you wish it were true?

Posted by: The Ace at July 4, 2006 03:18 PM

In the Pentagon Papers case, a majority of the justices have written that had the Times gone ahead and published, they very well may have upheld a prosecution against the Times. They simply could not uphold injunctive relief before the fact because that is not what the law said.

Read up on the case and read the full opinion. I have. That is what the Times never bothers to tell you.

Posted by: Cassandra at July 4, 2006 03:18 PM

There was no crime committed when the NY Times published the story about the Gov monitoring financial info.

How would you know?

Posted by: The Ace at July 4, 2006 03:18 PM

And thank you, Ace. That is precisely the section I was referring to, but did not have time to look up. I have cited it in several prior posts.

Posted by: Cassandra at July 4, 2006 03:19 PM

If the Times has classified information that if published could stop the takeover of the US and the subversion of the Constitution by this Administration or any Administration, do we have a right to know as citizens?

Nice strawman.

By the way, even the NYT admitted there were no concerns regarding the legality of the SWIFT program.

So your point is supposed to be?

Posted by: The Ace at July 4, 2006 03:20 PM

You say that it is illegal for the press to expose a secret program, but I counter that this may be a discussion point only when the program in question is legal! When the governement is working outside and beyond the law then it is the presses job to challenge ANY of those activities before the public.

Posted by: Bryan

You're more than welcome to name the "law" that was allegedly "broken" by this program.

You or any other of the silly ignorant liberals here.

Please do.

Posted by: The Ace at July 4, 2006 03:22 PM

I would like to note, for the irregulars coming to bash Cassandra for her lack of devotion to a free press, that the discussion has been had at length. Whatever you may think of her position, it isn't one that she's arrived at without thought, or without having to deal with some stern opposition in the course of formulating her views.

If you want to challenge her thinking, which of course you may, you'll want to be informed as to the complete argument. What otherwise seems like an offhand comment about the illegality of publishing information, is really an assertion based on some careful argumentation. If you want to convince her, it's the full argument you'll need to treat.

You can read that earlier discussion here.

Posted by: Grim at July 4, 2006 03:23 PM

""How can this be?", you may be asking yourself. The answer is simple. Bill Keller is a Very Smart Man - so smart that he can be trusted to make major national security decisions without any oversight. He has formulated the Theory of the Unitary Editor,"

Hypocrite. What on earth do you think our illustrious Imperial Leader and Vice Leader (King and Queen) have been doing? In their overpowering estimation do theyh believe they have the sole power to declassify at will without consultation or forewarning of who this might endanger as well as Congressional oversight.

Next time pick something that really doesnt reflect the realities of the failings of this administration first.


Thank you drive through. Next.

Posted by: Dubya at July 4, 2006 03:23 PM

Childish and inane.

What is it going to take for you wingnuts to grow up?

Posted by: The Liberal Avenger

Is that supposed to be a rebuttal?

Man, you leftists are pathetically stupid.

No wonder you're in no danger of governing anything anytime soon...\

Posted by: The Ace at July 4, 2006 03:23 PM

"Where is your outrage at the out of Valerie Plame a CIA operative. That was a text book case of breaking the law."

Yes, I suppose it was, and Joseph Wilson probably should be prosecuted for outing his own wife, while pimping his story to various media organizations.

Posted by: Eric Blair at July 4, 2006 03:24 PM

In their overpowering estimation do theyh believe they have the sole power to declassify at will without consultation or forewarning of who this might endanger as well as Congressional oversight.

Um, the classification power rests with the President and who he may otherwise designate.

Again, why do people who are so stupid and uninformed feel the need to say such moronic things?

Posted by: The Ace at July 4, 2006 03:25 PM

Why don't you get a clue? The Bush adminstration is using this attack on the Times to divert attention from its seemingly endless list of failures, and the right-wing blogosphere is falling in line because it loves to attack the allegedly "liberal" press (now there's a laugh). The Times didn't reveal anything that gives terrorists any new information of value. When are you going to acknowledge that you helped to elect the most incompetent president, and the most dangerous and disgusting vice president, the country has seen in at least a century? That's the real issue here. Let's unite and get down to the business of removing them from office, so we can all start over and try to repair the serious damage they've caused, both at home and abroad.

Posted by: counteringreactionarynitwits at July 4, 2006 03:28 PM

And thank you, Ace. That is precisely the section I was referring to, but did not have time to look up. I have cited it in several prior posts.

Posted by: Cassandra

You're welcome.

For the record that was New York Times Co. v. United States, 403 U.S. 713 (1971) where Justices Douglas and White talked about convicting post publication of classified material.

The leftist here are inanely arguing that classification means nothing.

After spending 3 years in a tizzy about Valerie Wilson.

Posted by: The Ace at July 4, 2006 03:29 PM

The press has been soooo responsible in not outing classified info, unlike Cheney, Bush and Libby and Roberts, that we have been dragged into a world crisis like no one in generations before or forward have or will experience. This is the most criminal administration in the history of the USA. Those who think differently are not paying close attention to the ACTUAL truth or the real consequences that are occuring as we sleep. Shame on anyone who would attack a responsible (to the american people) press corps. We rely on the press to keep us infomed. The "terrorists" know all about the banking, phone, and interent spying long before it was in print. Just ask Bush how many times he announced it. Wake up. Get real.

Posted by: joeann at July 4, 2006 03:30 PM

The Times didn't reveal anything that gives terrorists any new information of value.

And I take it you're in the intelligence field?

You work for DoD then, right?

Man, you stupids are amazing to watch.

Posted by: The Ace at July 4, 2006 03:30 PM

We rely on the press to keep us infomed. The "terrorists" know all about the banking, phone, and interent spying long before it was in print.

Prove that.

I dare you.

I love these silly talking points.

I guess you can point us to an article mentioning SWIFT prior to June 1, 2006 then, right?

Or is it your silly contention this program was classified for no reason?

The idea that the press has been keeping you informed is a sick joke.

Posted by: The Ace at July 4, 2006 03:32 PM

wow, ace, you sure are persuasive. i think i'll go find a GW bumper sticker.

this will be off topic, but there's no sense arguing point by point with bush followers, so i'll ask a more general question.

what exactly do you republicons want in a country, anyway? i want fiscal conservatism, protection of personal liberties, less government presence, environmental protection, lower taxes (across the income spectrum, not just the super-rich)....

wait a minute... i want what republicans used to stand for. its amazing to me that its completely been flipped on its head. what will you republicons do when we get "the terrorists"? I guess you wont have to worry about that question, because our little foray into iraq has guaranteed a new generation of recruits.

Oh, and i love the consistent use of the term "THE terrorists" by the republicons, as if the quantity of terrorists is a finite number and we just need to keep making check marks by their names until we get them all. Now thats some smart, realistic thinking.

you dont have to be on the left to have a brain. but it seems thats where most of the intelligence seems to migrate to nowadays.

Posted by: real conservative at July 4, 2006 03:42 PM

but there's no sense arguing point by point with bush followers

You're not capable of arguing anything, especially with me, which is why you're running from the idea.

Posted by: The Ace at July 4, 2006 03:44 PM

The "terrorists" know all about the banking, phone, and interent spying long before it was in print.

I found this interesting:

KATHARINE GRAHAM, the publisher of The Washington Post who died in 2001, backed her editors through tense battles during the Watergate era. But in a 1986 speech, she warned that the media sometimes made “tragic” mistakes.

Her example was the disclosure, after the bombing of the American embassy in Beirut in 1983, that American intelligence was reading coded radio traffic between terrorist plotters in Syria and their overseers in Iran. The communications stopped, and five months later they struck again, destroying the Marine barracks in Beirut and killing 241 Americans.

Funny, huh?
I mean the terrorists probably "knew" about those intel activities, right?

Posted by: The Ace at July 4, 2006 03:45 PM

wow, ace, you sure are persuasive. i think i'll go find a GW bumper sticker.

How about this, you go get a clue, and then don't come back, ok?

Posted by: The Ace at July 4, 2006 03:46 PM

Dear Ace: My point precisely. The press has not been keeping us informed. BUT when they do (and they are beginning to) I want to encourage them. To inform us of illegal activities committed to downgrade our rights and the constitution, you bet I want to know about it. This creepy regime didn't even bother to inform congress AS REQUIRED BY LAW until days before they knew the NYT was going to publish: Quote from Feinstein. And excuse me you don't care about the atrocities committed upon the innocent Iraqi people. The supreme court even cares.....somewhat.
It is so difficult to talk to any of you ignorant (this word does not necessarily mean stupid, just uninformed) people because you won't look at the facts. You won't read the papers coming out of the middle east because you think they are not true. Our papers have been printing the word of this administration and buddy, THIS IS NOT THE TRUE REALITY OF WHAT IS GOING ON. Hats off to the NYT for trying to keep this bunch of war mongering, thieves honest. Christian my arse. There is nothing right or christian or reasonable about what is going on. Go read a book.
Try "One Percent Solution". Try reading the words that are coming out from GEnerals, CIA investigators, translators, scientists. Try getting smart and informed. I was able to do it Now you try.

Posted by: joeann at July 4, 2006 03:50 PM

To inform us of illegal activities committed to downgrade our rights and the constitution

Huh?

Except you can't name any "illegal" activities.

This creepy regime didn't even bother to inform congress AS REQUIRED BY LAW until days before they knew the NYT was going to publish:

Hilarious.

And you can name that law I'm guessing, right?

excuse me you don't care about the atrocities committed upon the innocent Iraqi people

Huh?

It is so difficult to talk to any of you ignorant (this word does not necessarily mean stupid, just uninformed) people because you won't look at the facts

Um, you haven't posted a fact yet, have an IQ at least 50 points lower than me, and are utterly clueless on the thread topic as evidenced by your silly, inane, and false commentary.

Further, isn't it funny I asked you a direct question which you ignored?

You see, moron, you're arguing that the terrorists 'knew' about a secret and illegal program.

There are 10 year olds who can see through that "logic."

Yet you can't.

What does that say about you?

Posted by: The Ace at July 4, 2006 03:57 PM

sorry, "ace", I dont have time to play with you today. i am going out to celebrate what is still, I'm sure to your dismay, an American holiday. you would be much more at home in a government controlled country with no personal freedoms. be careful what you wish for - i doubt your dreamed of iron fist govt would have much use for you if you and your like can accomplish your dream.

theres a few n african countries you could head to right now, you'd love the lifestyle...

oh, and there are only hundreds of thousands of people who work for banks that are familiar with govt reporting requirements for certain transactions. hardly a secret that we've been tracking banking transactions ever since the bank secrecy act. the probable reason that you never knew about this, ace, is that you likely have never in your life had a banking transacation large enough that would trigger any type of reporting requirement.

oh, i see that you dont want me to come back??? my feelings sure are hurt. hey, i think your mom is yelling at you to get your broken down chevy nova out of the driveway.

Posted by: real conservative at July 4, 2006 03:58 PM

couldnt resist one final parting shot, just for you ace...

I doubt anyone can have an iq 50 points less than you, iq's dont go negative.

and i doubt i'll ever see you at one of my mensa meetings.

Posted by: real conservative at July 4, 2006 04:01 PM

If the Times has classified information that if published could stop the takeover of the US and the subversion of the Constitution by this Administration or any Administration, do we have a right to know as citizens?

Nice strawman.

By the way, even the NYT admitted there were no concerns regarding the legality of the SWIFT program.

So your point is supposed to be?

My point is rather simple and obvious, I should think: there are limits to press censorship as there are limits to executive (and congressional and judicial) power in a democracy. Drawing sharp lines is inherently undemocratic in some cases. We're fools if we 100% trust politicians of any party to tell us what we need to know.

BTW, my question is more than a strawman argument, in the same way arguing one should torture prisoners if there is even a chance we could stop a terrorist act. Both dilemmas are thankfully rare. But their rarity does not mean we should dismiss them out of hand, as you appear to do. These sorts of questions help guide us morally and politcally.

Posted by: Fred at July 4, 2006 04:01 PM

We really don't need a media at all. Just print what the Admin tells us--what's so troubling about that? You guys have it all right--just go back to thinking, thinking all the time, about men having anal sex. That's what you're thinking about now, I bet. Abortion and anal sex--it's your gutter KKKristian religion. I was in the military--honorably discharged--you can post what you want to attack me but I'm certain the vast, vast majority of you have never done any military service and that makes you chickenshithawks.

Posted by: Richard B Sheeney at July 4, 2006 04:01 PM

Bush's Republican henchmen have thrown a lot of spurious arguments up against the wall to see if anything will stick. All of them are wrong from the standpoint of constitutional law and statutory construction, but the media doesn't understand what is legal and what is not. All that matters to them is who turns the catchiest phrases and yells the loudest and longest.

Nevertheless, when these hearings are over, if Congress, the media and the rest of the country roll over and allow the warrantless searches and seizures to stand, I fear that one of the most important checks and balances in the U.S. Constitution will have been eliminated. Bush would appear to be on the verge of sending a high-powered public-relations projectile through Article II, Section 2, blasting a hole through the Constitution that obliterates the Fourth and Fifth Amendments and effectively eviscerates the Bill of Rights. Once these civil liberties are gone, it is a virtual certainty that we will never get them back.

To set the stage for this discussion, it is important to realize that the framers of the Constitution did not want a king. They also did not want Congress to be able to make the laws, enforce them and sit as a judicial body because this, too, would place complete power in the hands of a single entity. Consequently, they drafted a document that divided power three ways--between a Congress that would enact the laws, a President that would execute them and a judiciary that would interpret them. It was adopted in 1787 and became the U.S. Constitution. Fearing that the executive branch might attempt to trample civil liberties if they were not expressly stated in the Constitution, they came back a mere four years later and adopted ten amendments that became known as the “Bill of Rights.”

The adoption of the Fourth and Fifth Amendments as part of the Bill of Rights in 1791 essentially revoked any power Congress or the President may have had to conduct or authorize warrantless searches. When the Constitution is viewed in this light, it is impossible to concede to President Bush and his successors the completely unchecked, inherent power to conduct warrantless searches of telephone conversations and email messages that he claims. Please bear with me, I will attempt to explain this position in some detail.

There is a rule of legal construction that is highly germane on the subject of presidential power to conduct warrantless searches and seizures. It says that laws that are “in pari materia,” i.e., that deal with “equal material” or the same subject matter, should be interpreted so as to give effect to all portions of each law. In other words, it requires the U.S. Constitution to be interpreted as an organic whole.

The rule of construction in pari materia applies to all laws of “equal dignity,” i.e., to all laws adopted at the same level of government. It presumes that the citizenry (in the case of constitutional provisions), legislature (in the case of statutes), county or municipal government (in the case of ordinances) or administrative agency (in the case of rules and regulations), as the case may be, is fully aware of every law that it has adopted and that it intends to create a consistent and harmonious system of laws “governed by one spirit and policy.” Each individual law is presumed to have been created intentionally and not by accident and with full knowledge of all other relevant laws. It assumes that the entity adopting a new law, being fully cognizant of all existing laws on the same subject matter, intended for both the new law and the old ones to be effective. Otherwise, it would have written the new law differently or expressly repealed any inconsistent previously-existing laws.

This rule requiring that laws be construed in pari materia is itself part of the law, and judges are required to abide by it when they are interpreting laws that, on first examination, appear to be inconsistent. It requires judges to dig deeper and discover a way to give effect to all laws and to each of their parts. The only exception is where the laws are so inconsistent that they are impossible to reconcile. In such cases, the later law is regarded as the most recent pronouncement of legislative intent on the subject and is considered to have repealed the earlier one by implication.

Turning then to the actual language of the U.S. Constitution, Article VI, Paragraph 2 provides, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Thus, the U.S. Constitution is the paramount law of this country, and the rule of in pari materia applies when interpreting it. No state law that is in conflict with it can stand, and no law enacted by Congress, no executive order of the President and no decision of the Supreme Court can supersede it.

Of course, Supreme Court decisions interpreting the Constitution, once adopted, are entitled to great deference as precedents. However, in the end, they are only interpretations, which is why the Supreme Court, when attempting to understand the Constitution and apply it to novel situations or changed circumstances, returns again and again to the actual language of the document, refining or overruling earlier precedents whenever necessary. In that same spirit of faithfulness to the rule of law, whenever any issue of constitutional interpretation arises in public discourse, the first place we must turn for guidance is to the words of the Constitution itself.

With respect to Congress, Article I, Section 1 states: “All legislative Powers herein granted shall be vested in a Congress of the United States….” Note that the framers put the provisions creating and empowering Congress in Article I because they regarded it as the preeminent branch of the federal government. Article I, Section 9 provided Congress with very broad powers over the military, including the power to define and punish offenses against international law, to declare war, to raise and support armies, a navy and the militia and, perhaps most importantly in the present context, the powers “To make Rules for the Government and Regulation of the land and naval Forces” and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Note that this last power even goes so far as to permit Congress to enact rules governing how the President performs his job because the framers, with their recent experience of the unbridled powers of the British monarchy, wanted to ensure, more than anything else, that their “chief executive” could not become a de facto king. This power, above all others, makes it clear that the authors of the Constitution intended for congressional power to trump presidential power.

With regard to the President, Article II, Section 1 says: “The executive Power shall be vested in a President of the United States of America.” Article II, Section 2 states: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States….” Article II, Section 9 issues the following express command to the President: “He shall take Care that the Laws be faithfully executed….”

Turning to the judiciary, Article III, Section 1 provides, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Nevertheless, in Section 2, the judicial power is to be exercised “with such Exceptions, and under such Regulations as the Congress shall make.” Note that Congress, not the President, is given this check and balance over the federal judiciary.

As for the Bill of Rights, the Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fifth Amendment amplifies and expands the Fourth by making it clear that “No person shall… be deprived of life, liberty, or property, without due process of law….”

Although the Fourth and Fifth Amendments were adopted shortly after the rest of the Constitution, they are just as much a part of it as the provisions of Article I and Article II. They must therefore be construed in pari materia with them and be given effect if it is possible to do so.

It is clear from even a cursory reading of Article I, Section 1 that Congress, and not the President, is given exclusive legislative authority. Article II, Section 1 establishes the corollary role of the president as an executive officer who carries out laws enacted by Congress. Thus, at the most basic constitutional level, Congress passes laws, and the President executes them.

However, the Constitution contains another set of complementary provisions involving Congress and the President. Article I, Section 9 gives Congress power “To make Rules for the Government and Regulation of the land and naval Forces.” Under Article II, Section 2, the President is designated as commander in chief of the armed forces of the United States. Congress and the President therefore have concurrent authority over the military and the waging of war. Consequently, where Congress has not addressed a purely military matter, the President has inherent authority to act.

Nevertheless, the President is required to “take Care that the Laws be faithfully executed,” including laws enacted under the power of Congress to make rules governing and regulating the military. Moreover, in his capacity as commander in chief, the President is still a constitutional officer subject to the power of Congress “To make all Laws which shall be necessary and proper for carrying into Execution … all … Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” In other words, where Congress has spoken on a subject over which it has authority to enact legislation, including military matters or even the execution of the powers of the presidency, the President is subordinate to Congress and has no option but to “faithfully execute” laws that Congress adopts. This is an extremely inconvenient limitation on presidential power that Chief Executives have frequently tried to circumvent.

It bears repeating that even when the President is engaged in the performance of his duties as commander in chief, Congress can enact rules governing the conduct of his office, and he is duty-bound to obey them. In fact, this is the basis for the Foreign Intelligence Surveillance Act ("FISA") of 1978, which was apparently honored for over two decades by four Presidents prior to Bush 43. Everything in Article II points to the creation of an official with limited powers that are mainly directed at waging conventional wars that have been declared by Congress, conducting foreign policy and executing laws enacted by Congress, all of which are subject to the rules and limitations duly enacted by Congress. Bottom line: When Congress enacts legislation that it has constitutional power to enact, the President must obey. FISA is one of those laws.

It is clear that the constitutional provisions originally adopted in 1787 are in pari materia because they are concerned with a unitary system of checks and balances devised by the framers of the Constitution. They therefore must be read and interpreted as a single, organic whole. Construed together, they make perfect sense as a method of enabling the different branches of our federal government to function together through a harmonious separation of powers.

Turning to the issue of warrantless searches and seizures, these days we generally speak of security issues only in the contest of terrorism. However, the Fourth Amendment specifically recognizes that the people have a right to be “secure in their persons, houses, papers, and effects” against unreasonable governmental intrusions. The test of “reasonableness” is to be decided by an impartial third party, i.e., by a judge or other judicial officer, who issues a warrant authorizing the search or seizure if he or she concurs that it is, in fact, reasonable. Before a warrant can be issued, the officer of the executive branch has to submit a description of the place to be searched and the persons or things to be seized that also explains under oath or affirmation why “probable cause” for the intrusion exists. Without the impartial decision-maker, the executive officer seeking to implement the search or seizure becomes the sole arbitor of whether the search is reasonable. This constitutes absolute power over the decision-making process which, as we all know, has a tendency to currupt absolutely.

Until FISA was enacted in 1978, a warrant had to be issued in advance of conducting a search or seizure. Otherwise, the intrusion was, ipso facto, illegal. There were no retroactive warrants. Therefore, FISA itself constitutes a huge extension of presidential power. However, when it comes to the power of the presidency, there can be no more apt truism than “Give them an inch, and they’ll take a mile.”

To the extent that any provision of the original Constitution is so inconsistent with the Fourth and Fifth Amendments as to be incapable of being reconciled with them, the rules of constitutional construction would come into play, and that provision would be repealed by implication. The Fourth Amendment makes it very clear that, in order for searches or seizures to be legal, warrants are necessary and must comply with certain requirements. When the Fourth Amendment was adopted in 1791, warrants were a purely judicial function. The clear intent was that, if a warrant is required, it must be issued by a judicial officer, and not by a member of the legislative or executive branches. Therefore, to the extent that the President ever did have inherent power to conduct or order warrantless searches or seizures, that power was repealed, expressly or by necessary implication, when the Fourth and Fifth Amendments were adopted, along with the rest of the Bill of Rights, on December 15, 1791.

None of this has stopped Bush from claiming that he has inherent power as President to conduct warrantless electronic surveillance of U.S. citizens or that Congress, by authorizing him to go to war against the Taliban and Saddam Hussein, has implicitly authorized him to conduct warrantless electronic searches and seizures. As many Democratic and Republican members of Congress have pointed out, this is, indeed, a stretch. There is nothing in either of those resolutions that addresses the issue of searches and seizures, not one word.

Moreover, even if Congress had purported to grant Bush the power to conduct such surveillance, it would not be constitutional. The adoption of the Fourth Amendment took away not only any inherent power the President may have had to conduct or authorize warrantless searches, but also any power Congress had to adopt legislation authorizing it.

Call me a tinhat conspiracy theorist, but I fear that if the President's claim goes unchecked or is approved by Congress, we can say goodbye to our civil liberties. Bush and his intelligence agencies will then be in a position to determine for themselves when such intrusions are "reasonable." My guess is that we will soon begin to see the range of situations in which they are deemed appropriate begin to expand, slowly at first and then more rapidly when the executive branch sees that there is no longer anyone guarding the gate. It will ultimately begin to invade the sphere of domestic politics, which will enable Bush and other sitting Presidents to intimidate their political opponents. This will further chill all opposition to the surveillance, which will inspire additional incursions, etc., etc.

Make no mistake about it, this is an attempt to overthrow the government, not by force of arms, but by seductive arguments preying on the public’s fear of terrorism. Hopefully, congressional Democrats and moderate Republicans, the mainstream media, libertarians and the general public will realize that the nation is gripped by one of the most serious constitutional crises in its history and will band together to suppress this putsch.

Posted by: Ryan at July 4, 2006 04:14 PM

Do you know the meaning of the word hypocrite? Why are you not calling for the imprisonment of Bob Novak for exposing classified information! You talk out of both sides of your face. Try to learn integrity... not a one of you crazy cons has an ounce.

Posted by: Uncle SAM at July 4, 2006 04:16 PM

If all Americans were as ignoarant as the radical extremist Bushies, there would be no America. You guys are lame.

Posted by: Ken at July 4, 2006 04:18 PM

Ken, if your side keeps it up, the Democrats will be a minority party for a generation. Not that I would mind that.

Posted by: Bostonian at July 4, 2006 04:24 PM

Richard Perle -

Priest's reply also made a not-so-veiled reference to Bennett's casino gambling peccadillos.

I consulted the dictionary for help with "peccadillos", since is sounds vauguely pejorative when referring to Bill Bennett's gambling.

peccadillo - indiscretion: a petty misdeed
indiscretion - the trait of being injudicious
injudicious - lacking or showing lack of judgment or discretion; unwise; "an injudicious measure"; "the result of an injudicious decision"

Misdeed? Lacking judgement? Unwise?

Crikey, Mr. Perle, Mr. Bennett is a wealthy man, and back when he was allowed to have fun, gambled legally for big money. Did he let his family go hungry, fail to pay the mortgage, become a burden on society, did he rob, cheat or steal to fund his hobby? No. If he chose to burn his money in his fireplace, it's his money and he's free to do it, just as he should be free to play high-stakes poker in Las Vegas.

Hmmm...let me Google "Richard Perle". Ah! Here is a Wiki on Richard Perle. How interesting!
On more than one occasion Perle has behaved in an allegedly unethical manner to his own financial gain. His behavior in both the public and private spheres has been investigated and the board of Hollinger International singled him out in a report citing diversion of profits from shareholders to executives.

Are you that Richard Perle, or one that is not under a cloud? If you are that Richard Perle, don't you wish you were as good a gambler as Bill Bennett, so you could play poker to enrich yourself?

Posted by: MathMom at July 4, 2006 04:31 PM

Ace

I said: It is not against the law to publish classified information. Have you never heard of the Pentagon Papers?

You responded:

Um, you clearly do not understand the position the SC took on that case.

Here is a hint:

Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint

Further, you may want to bother yourself by reading Title 18 : Section 798 before making such idiotic comments.

I'll readily admit to being nothing close to a legal expert, but it is plain that you giving here the wording of actions that would be proscribed, not to mention your ignoring of the fact that the goverment, details about possible future actions aside, lost the case, does not make my plain statement untrue. You made the blanket statement that it was "against the law to publish classified information." That is obviously untrue.


Here's the LA Times explanation:

Thirty-five years ago Friday, in the Supreme Court ruling that stopped the government from suppressing the secret Vietnam War history called the Pentagon Papers, Justice Hugo Black wrote: "The government's power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of the government and inform the people."

[...]

Then, we listen. No article on a classified program gets published until the responsible officials have been given a fair opportunity to comment. And if they want to argue that publication represents a danger to national security, we put things on hold and give them a respectful hearing. Often, we agree to participate in off-the-record conversations with officials so they can make their case without fear of spilling more secrets onto our front pages.

Are you saying that they're openly talking about what how they do what you say is illegal?

Posted by: Thom at July 4, 2006 04:45 PM

My last comment should have had your comment italicized until idiotic comments.

Posted by: Thom at July 4, 2006 04:46 PM

Her example was the disclosure, after the bombing of the American embassy in Beirut in 1983, that American intelligence was reading coded radio traffic between terrorist plotters in Syria and their overseers in Iran. The communications stopped, and five months later they struck again, destroying the Marine barracks in Beirut and killing 241 Americans.

And how is this even close to this case? If you're contending that this is even close, then what of Bush's actions?

In a September 24, 2001, speech, Bush announced the establishment of a "foreign terrorist asset tracking center at the Department of the Treasury to identify and investigate the financial infrastructure of the international terrorist networks." He added, "It will bring together representatives of the intelligence, law enforcement and financial regulatory agencies to accomplish two goals: to follow the money as a trail to the terrorists, to follow their money so we can find out where they are; and to freeze the money to disrupt their actions."

And don't use a pat reply. This is relevant. Are you going to say that a terrorist would act differently after hearing that then they would have after hearing about our use of SWIFT? Why? Because they thought Bush's announcing publicly that they had set up a "foreign terrorist asset tracking center at the Department of the Treasury to identify and investigate the financial infrastructure of the international terrorist networks," was probably going to miss them?

That is beyond daft.

Posted by: Thom at July 4, 2006 04:55 PM

Bush himself outed the financial tracking soon after it started. The program is no secret. SWIFT has its own web page. If you want to move money from one country to another they will ask you for your SWIFT code.

The only thing "leaked" by the NYT in this case is that it was,like Bushs' felony wiretapping program, used illegally on Americans without the approval of Congress or the Courts.

HERE IS REAL TREASON

President Bush told the special prosecutor in the CIA leak case that HE directed Vice President Dick "Bang-oops" Cheney to personally lead an effort to counter allegations made by former Ambassador(Present HERO)Joe Wilson that his administration had misrepresented intelligence information to make the case to go to war in Iraq.

The President went after a man doing his job and doing it right, by attacking his wife and then lying about it, all to get us into a war based on lies.

Posted by: mparker at July 4, 2006 04:56 PM

How can this be?", you may be asking yourself. The answer is simple. Bill Keller is a Very Smart Man - so smart that he can be trusted to make major national security decisions without any oversight. He has formulated the Theory of the Unitary Editor

Well argued, to the point, and absolutely maddening when read by the Left. You really struck a nerve, which is illustrated by the angry comments.

Good job.

Bill Keller agonized over printing the SECRET DETAILS of a program that was legal and effective. The authors used anonymous sources in the article and used the word 'secret' several times. They cannot now claim that it wasn't a secret.

Everything else aside, I question Keller's judgement.

Bush was elected, twice, to make decisions for the citizens. The only accountability Keller has is the criticism of his readers because he is not elected.

Through our history we have assumed that the press would be responsible and thus left certain judgements up to them as to whether to print secret details or not. The government does not use prior restraint.

Keller misused the trust. Just as Nixon did.

We, the people, instead of punishing Nixon punished the Office of the President and took away some of the Office's power. Bush is simply trying to get it back to what the founders believed.

Are we, the people, about to take away some of the power of the press because of one bad apple? No. We will not demand that at all. We learned our lesson. Punish the individual, not the institution.

Posted by: Syl at July 4, 2006 05:02 PM

Ignoring those of us who are well informed as to the Constitution and laws, many of us are guided by partisanship. When this whole discussion began years ago I began wondering about partisanship, and its effect. I was aware that my viewpoint and those of my friends of opposite political pursuasion were primarily informed by partisanship, and in fact sought to have my friends enlarge our discussion to include observation of our own biases and beliefs. That didn't go very far, so I gave up.

Partisanship is very evident in our discussions today. Bush has descended to 35% "popularity" from astronomical levels. To me that means that when Bush was popular, some of a leftward ideological bent as well as the true middle-of- the-roaders were pursuaded to back Bush. As it became more evident that Bush was failing the nation, then the true middle-of-the-roaders plus some of us with rightward leanings came out against Bush, reflected his dismal 35% ratings today. As when Bush was at his highest ratings there were the more hardcore leftist partisans making up the remaining, it is true today that the remaining 35% are the more fervent rightist partisans. And from the discourse (killing the Time's editors and tracking their children), the most bitter partisans.

I am at a loss as to how one can join the true middle-of-the-roaders; can anyone suggest a way?

Posted by: jimbo at July 4, 2006 05:16 PM

realconservative,
I must say that I can't blame you for wanting to depart after you wrote a howler like this:

"Oh, and i love the consistent use of the term "THE terrorists" by the republicons, *as if the quantity of terrorists is a finite number* and we just need to keep making check marks by their names until we get them all. Now thats some smart, realistic thinking." (Emphasis added).

Please keep in mind that 6,500,000,000 is a finite number. As of Febuary 25, 2006 it was the estimate world population.

http://en.wikipedia.org/wiki/World_population

Unless you are taking this moment to make an interesting confession we may assume that neither you nor myself nor anyone else currently posting here are terrorists. Therefore the number of people who are terrorists is less than 6.5 billion and therefore also finite. In point of fact there is reason to believe that we can narrow things down much further than that although I will leave the means by which we may do so as an exercise for your logical faculties. In the future please keep in mind that thinking must first be numerate before it can be realistic.

Sincerely yours,
S.P.M.

Posted by: Small Pink Mouse at July 4, 2006 05:18 PM

I guess you can point us to an article mentioning SWIFT prior to June 1, 2006 then, right?

Here's one from 2004. (Sub. r'qd. for full article)

Here's on from 2005.

Anything else? (I dare ya!)

Posted by: Thom at July 4, 2006 05:31 PM

mparker

Don't get me started. You'll be sorry.

President Bush told the special prosecutor in the CIA leak case that HE directed Vice President Dick "Bang-oops" Cheney to personally lead an effort to counter allegations made by former Ambassador(Present HERO)Joe Wilson that his administration had misrepresented intelligence information to make the case to go to war in Iraq.

The President went after a man doing his job and doing it right, by attacking his wife and then lying about it, all to get us into a war based on lies.

First. Bush said nothing about Wilson's wife. Pushback on Wilson is perfectly legitimate. Wilson lied. He even had to admit it to the SSCI. A little literary flair, as he put it. Cheney did not send him. Cheney didn't know about the trip. The verbal report Wilson gave on his return did not mention anything about forgeries. The report never made it to Cheney anyway. So Cheney didn't ignore a report that didn't say what Wilson claimed anyway. Is that too nuanced for you?

Second. The reason you think Bush lied is because Wilson told you he did.

Think about that fact before putting your cart before the horse.

Posted by: Syl at July 4, 2006 05:32 PM

Syl and Ace and the rest of you--will you please stop with the "If it wasn't a secret then why did he agonize over it?" bullshit. What wasn't a secret was that we track financial transactions. How in the hell would we have all the "financed a terrorist organization" arrests in this country alone if we didn't do that?

What was secret was that the Treasury Department was getting access to private bank accounts--without warrants, an actually that is still, in the mind of some smarter than you, illegal. Time will tell.

Posted by: Thom at July 4, 2006 05:35 PM

Ever since the beginning of the so-called "war on terror," the Bush administration has asserted that the prosecution of this ill-defined and open-ended conflict is more important than the basic democratic rights enshrined in our Constitution.

To hear conservatives - the folks who have long railed against giving government too much power - say that it would be perfectly OK for the feds to raid the Times' newsroom and whisk its editors off to jail is Grade-A hypocrisy.

All but one Republican member of the U.S. House of Representatives voted last week in favor of a resolution that condemns news organizations for the crime of providing Americans with information about what their government is doing in their names. In the words of Ohio Republican Mike Oxley, the government "expects the cooperation of all news media."

Those are the kinds of words we expect to hear in Cuba, China or North Korea, not from an American politician.

But hypocrisy is no stranger to present-day conservatism. Its followers can support a president who is destroying our civil liberties and Constitution in the name of protecting our civil liberties and Constitution, and support him with a straight face.

As we've seen time and time again, the Bush administration has shown itself most unworthy of the extraordinary power it has claimed for itself. Rarely does Congress and the courts challenge the administration. The only effective check on uncontrolled executive power has been the press. The only effective source of oversight has been the press.

That is why freedom of the press is enshrined in the Bill of Rights. It is this nation's last line of defense against tyranny - which I define as a government that refuses to allow the people to know what is being done in their names and tries to suppress politically harmful information.

A free and independent press acts as a conduit of both information and debate. When those in power decide who gets to report the news and what stories will be told, the line between democracy and tyranny is erased. When journalists are the targets of criminal investigations from the government and death threats and violence from the far right, we cease to live in a free society.

For anyone who works in journalism and for anyone who still believes in the right to know what those in power are doing, this is the only fight that matters right now. The fate of our nation hangs in the balance.

Posted by: Ryan at July 4, 2006 05:36 PM

"Oh, and i love the consistent use of the term "THE terrorists" by the republicons, *as if the quantity of terrorists is a finite number* and we just need to keep making check marks by their names until we get them all. Now thats some smart, realistic thinking." (Emphasis added).

The meaning of this is pretty clear, that we have limited resources with which to fight terrorism, and the terrorists have limited resources to fight our freedoms. Bush calls the insurgents in Iraq 'terrorists' when they are not, actually creating terrorists where there were few. The resources that should have been used to fight the real terrorists were wasted, so overall the terrorist base is growing. And as we alienate more and more of the world, the terrorist base will increase accordingly. Since terrorism is a mental construct, and not a physical thing like a nation, the terrorist base won't be defeated by conventional war, but by ideas and leadership, all noticably missing in this administration. Do you see now the meaning of "we just need to keep making check marks by their names until we get them all"?

Posted by: jimbo at July 4, 2006 05:39 PM

Get off me peoples, I have the day off.

Posted by: Straw Man at July 4, 2006 05:41 PM

Thom

First. General knowledge that a program exists means little when the details aren't known. For example you're ignoring a leetle detail in the article that stated there are DAYS between the time a transaction takes place and when that fact is turned over to America.

That is an important detail for jihadi financial backers to know.

The devil is ALWAYS in the details.

Second. You don't even consider the consequences to the program itself of the details being released. Who was involved, who knew, which financial institutions cooperated specificially. There's a big hullaballoo going on in the EU and member countries right this minute because of this revelation. They obviously didn't know those details before.

So the program is in danger of totally collapsing.

Third. The program tracked transactions across countries and through various institutions and found patterns and networks. The entities involved in various legs of transactions weren't put in jail or otherwise notified that they were being tracked so obviously they figured what they were doing wasn't getting them in trouble.

Now they KNOW what we were doing and will switch to Asian banks that don't go through SWIFT.

We no longer have the ability to discern the networks. Think of moneys that start out as sale of diamonds and end up paying for guns shipped across Pakistan in a truck. That's all lost to us now.

So take your simplistic view and shove it. This revelation HAS done damage and you're either a fool or just taking sides thinking nobody else can figure things out.

Posted by: Syl at July 4, 2006 05:41 PM

To hear conservatives - the folks who have long railed against giving government too much power - say that it would be perfectly OK for the feds to raid the Times' newsroom and whisk its editors off to jail is Grade-A hypocrisy.

Ah, but of course this post says nothing of the kind.

But nevermind. Why get in the way of knocking down a perfectly good straw man?

And by the way, for all the people who are wasting a perfectly lovely 4th of July citing articles that mention SWIFT, we all know SWIFT itself wasn't classified. Another straw man. Once again, if the Times cited only information in the public domain, then why did they need to use informants? WHY DID THEY, OVER AND OVER AGAIN, REFER TO THE PROGRAM AS "SECRET"? EITHER IT WAS OR IT WASN'T. A question not of you have addressed yet.

Please go back and enjoy the holiday.

Posted by: Cassandra at July 4, 2006 05:47 PM

I will never concede that the founders reliance on the power of the press as a last stand against tryanny is 'simplistic'. I don't think it has been conceded that the actions of the press won't damage, but such damage will be justifiable so that the press can protect us.

Posted by: jimbo at July 4, 2006 05:49 PM

Yes, I will protect you, if you are under fire just duck behind me.

I AM SOLID STEEL BABY!!!

Posted by: The Press at July 4, 2006 05:53 PM

Press

Our greatest danger is from within, not terrorism. 'Terrorism' is a device used by the administration to give the bitter 35% something to say.

Posted by: jimbo at July 4, 2006 05:57 PM

Hey, before I shove it, which I may just for kicks, what jihadi training school did you go to? What could you possibly know about how their financiers do and know? the possibilty that the Fed didn't even care about that detail gets right past you, huh?

The whole thing could collapse? You don't even know what it is you're talking about. The "program" has been tracking terrorist finaances--are you thick enough to think that they're goin to stop? (And does it occur to anybody that if this was such a danger to us--then wouldn't it have been prudent to ACT LIKE IT WASN'T A DANGER? Such idiocy. It's like the WMDs. "They have WMDs! Lets attack them so they can use them on our troops!" Idiots

SWIFT has been around for decades. And they brag about what financial institutions work with them. it's a business.

And what are your credentials for knowing the legs and the networks that we have now lost? Where do you get that info?

Posted by: Thom at July 4, 2006 06:01 PM

You damn straight ya little weenie. Now get me another beer before I give you a wedgie of biblical proportions.

Posted by: Within at July 4, 2006 06:02 PM

Casandra you really shouldn't use words you don't understand. I was by no means diverting attention away from the real issues, but merely pointing out that the press plays an important role in our democracy, and the hyprocrisy that surrounds this issue brought on by people like you. The that fact you call that point a strawman, does not make it so. If you want to get into a debate about logically fallacies, I'd be more than happy to entertain you.

Lets start with Hasty Generalizations, such as you basing your argument on insufficient or unrepresentation evidence (ie: the fact that the financial information was already public knowledge).

Non-Sequitur, as your conclusions are not necessarily a logcal results of the facts.

Post hoc, ergo propter hoc, attacking the opposition rather than the opponents argument.

Is this not the pot calling the kettle black? Hmmm Maybe you should re-evaluate your own statements Cassandra, before you cast stones at others.

Posted by: Ryan at July 4, 2006 06:10 PM

Hey Shove It Syl, guess who wrote this, and when:

A recent report from the U.S. General Accounting Office (GAO) highlights how interna- tional terrorists make widespread use of alternative and informal mechanisms to raise, move, and secure their funds.1 The very nature of these informal financial mechanisms—the use of charities and informal banking systems, or trade in licit and illicit commodities—makes it ex- tremely difficult for counter-terrorist and law enforcement officials to monitor flows of funds that terrorist groups need to sustain themselves and to execute attacks. The overlapping mis- sions and jurisdictions of different government agencies complicates the situation further. Some agencies advocate the immediate seizure of funds when they are discovered, while others prefer to monitor transfers in order to expose more of the terrorist network. The GAO report concludes by noting that without good data and analysis, officials cannot make good decisions among competing priorities and challenges nor allocate resources to address them. We hope that the publication of this paper, which details Jemaah Islamiyah’s financing networks in Southeast Asia, will contribute to an increased understanding of this critical challenge.

Posted by: Thom at July 4, 2006 06:13 PM

People, you must never forget that I am your greatest danger.

Now....commence fearing me!!!

Posted by: Within at July 4, 2006 06:20 PM

OK jimbo, since you are the expert let's take a look:

in·sur·gent [ in súrjənt ]

noun (plural in·sur·gents)

Definition:

1. rebel: somebody who rebels against authority or leadership, especially somebody who belongs to a group involved in an uprising

2. political rebel: a member of a political party who rebels against the party leaders or policies

adjective

Definition:

rebellious: rebelling against authority or leadership, especially against a government or ruler of a country


ter·ror·ist [ térrərist ] (plural ter·ror·ists)

noun

Definition:

somebody using violence for political purposes: somebody who uses violence, especially bombing, kidnapping, and assassination, to intimidate others, often for political purposes

Hmmmm, so, by extrapolating that you don't know your butt from a hole in the ground on even the definition of who it is we are fighting, and apologizing for them by osmosis, then why should we even consider your other points as noteworthy?

It's all about the Benjamins. The terrorists recruit the populace to place IEDs. They can make $150 to blow up our folks on the ground. That in turns makes them terrorists. There is no "uprising against authority" going on when planting IEDs or strapping on a suicide vest. You might have some semblence of an argument with the Sunnis attacking IP, ING, and IA but when they do so through the means of terrorism they no longer can lay claim to the term "insurgent". They are terrorists. I know it's extremely complicated for you to understand but you might want to check into it.

Your defense of Keller and the NYT is admirable for one of such intestinal fortitude. I bet you had a field day supporting same when they taught our enemies how to place a shot to defeat our body armor as well. And how many funerals and contributions did you make to the families of those killed because of this "people need to know" bullshit? Yeah I know, those Constitutional Rights that were being stripped away by providing ways to defeat our armor were mindnumbing. Complete with diagrams. Nice.

Now you want to say that providing the intricate details of how we were shutting off the money pipeline, legally and with oversight, is further stripping away of our Rights? Have you kept up with the numbers of attacks and IEDs since the story broke? Yeah, I thought so.

You are trying to defend the indefensible. We know who's side Keller and the Times are on. Trust me, we have absolutely no question in our minds in the least. Thank you for your support. Here's hoping you do not find yourself having to face the objects of your devotion!

Yol Bosun!

Posted by: JarheadDad at July 4, 2006 06:26 PM

"Post hoc, ergo propter hoc, attacking the opposition rather than the opponents argument."

Post hoc ergo proctor hoc actually means "After the fact, therefore because of the fact." It is a fallacy that follows this form: "The rooster crowed and then the sun came up; therefore, the rooster's crow cause the sun to come up."

The informal fallacy you are looking for is argumentum ad hominem.

Posted by: Grim at July 4, 2006 06:33 PM

I should add that propter hoc is also an acceptable name of the first fallacy. In fact, there seems to be some debate about which one is better. Propter is probably the more commonly used, but proctor (a term which denotes agency, and which is the root for "proxy" and our modern "proctor," the fellow who supervises exams) is also often used.

Posted by: Grim at July 4, 2006 06:47 PM

Since we are discussing the "The Unitary Editor", it would only then be fair to discuss "The Unitary Executive."

Bush has broken the law by authorizing warrantless domestic surveillance by the N.S.A. and we are on "the brink of a dangerous breach in the fabric of the Constitution." Addressing the Bush Administration's "unitary executive" theory of executive privilege, it has been pointed out that it would be more aptly called the "unilateral executive" theory. For those of you who may not have been following this, Attorney General Alberto Gonzalez is one of the chief architects of the Bush Administration's so-called "unitary executive" concept. In a nutshell, it claims that the President, as the Chief Executive, has absolute control over the executive branch and all of its departments and agencies, to the point that the President can essentially ignore lawsuits and Supreme Court decisions on the internal functioning of that branch of the government. In essence, the executive branch is an island all to itself, immune from judicial process, with the President at the top calling the shots. It also avers that the President is the sole arbitor of the power of the presidency and the executive branch.

The media did the American people a great disservice in the way they reported (or, more accurately, failed to report) on this event.

The administration immediately trotted out Attorney General Alberto Gonzalez (one of the chief architects of "unitary executive" theory). The media immediately accepted what Gonzalez said as gospel and stopped covering anything substantive about the speech.

Adolf Hitler and Saddam Hussein went largely unopposed in Germany and Iraq when they began their campaigns to usurp power from their countrymen. Of course, the few who did challenge them were rubbed out. I do not believe we are nearly that far gone in this country ... yet. Nevertheless, the alleged justifications stated in Hitler’s and Hussein’s propaganda to their respective nations frequently hinged on so-called "national security" dangers and similar pretexts. It took wars with unprecedented levels of violence and destructiveness to finally get them out of power.

Shortly after 9/11, a few brave American patriots pointed out that if the country allowed fear of a relatively small, ragtag band of terrorists scattered throughout the globe to frighten us into allowing our hard-won liberties to be taken away from us, then the terrorists would have won. Unfortunately, we are now seeing the very kinds of usurpations of power that we were admonished to guard against come to fruition.

Posted by: Ryan at July 4, 2006 06:53 PM

Oh don't get your panties in a wad Ryan, I haven't seen a usurpation in a coons age.

Posted by: Fruition at July 4, 2006 07:23 PM

Cassandra and others,

While I am appalled by the NYT, I am having a hard time understanding how the latest dust-up falls under 798 "communication intelligence" or product of "communication intelligence."

Can you explain your reasoning?

Posted by: moomoo at July 4, 2006 07:25 PM

thom

Shove it yourself:

widespread use is not the same as exclusive use.

Some agencies advocate the immediate seizure of funds when they are discovered, while others prefer to monitor transfers in order to expose more of the terrorist network.

That goes for information gleaned from the SWIFT program as well. If you think that jihadi financing didn't use it at all you are sadly mistaken.


Posted by: Syl at July 4, 2006 07:31 PM

Here are the facts:

# FISA Was Passed in 1978 to Prescribe Procedures for Physical and Electronic Surveillance.

* The Foreign Intelligence Surveillance Act ( FISA) of 1978 prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between or among "foreign powers." (http://www.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36.html)

* The highly classified FISA court was set up in the 1970s to authorize secret surveillance of espionage and terrorism suspects within the United States. Under the law setting up the court, the Justice Department must show probable cause that its targets are foreign governments or their agents. The FISA law does include emergency provisions that allow warrant-less eavesdropping for up to 72 hours if the attorney general certifies there is no other way to get the information. (“Judges on Surveillance Court To Be Briefed on Spy Program,” Washington Post, 12/22/05)

# According to the New York Times, Bush Authorized a Secret Spying Program Outside the FISA Systems.

* ”Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others without the court-approved warrants required for domestic spying, according to government officials. . . Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years.” (“Bush Lets U.S. Spy on Callers Without Courts,” New York Times, 12/16/05)

# In January, the Non-Partisan Congressional Research Service Reported that Bush Broke Law

* “A Congressional Research Service [CRS] report concludes that: ‘the Bush administration’s limited briefings for Congress on the National Security Agency’s domestic eavesdropping without warrants are ‘inconsistent with the law.’’” (“Report Questions Legality of Briefings on Surveillance,” New York Times, 1/19/06)

# Legal Experts Repudiated President Bush’s Claim that He has Inherent Power for Wiretaps as Commander-in-Chief. Congress has the authority to regulate electronic surveillance in the United States. Under FISA the President must seek court approval for electronic surveillance.

* A letter to Congress from a group of legal experts including Lawrence Tribe, David Cole, Ronald Dworkin, and others concluded: “But even conceding that the President in his role as Commander in Chief may generally collect "signals intelligence" on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation.” (“On NSA Spying: A Letter to Congress,” The New York Review of Books, 2/9/06)

# The Non-Partisan Congressional Research Service Repudiated President Bush’s Claim that the NSA Program was Authorized after September 11th.

* A Congressional Research Service [CRS] report concludes, “that Bush's assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force. ” (“Report Rebuts Bush on Spying; Domestic Action’s Legality Challenged,” Washington Post, 1/7/06)

# Contrary to Administration Claims, Congress Was Not Informed of Wiretapping Program – Another Likely Infringement of the Law.

* White House Counselor Dan Bartlett claimed: “We went to Congress. We talked to the chairman and the ranking member of the intelligence committee. We talked to the leadership, both Republican and Democrat, House and Senate. These very discussions happened three to four years ago… The fact of the matter is, everybody came to the same conclusion, that what the president was doing was legal and was necessary.” (CNN American Morning, 1/23/06, http://transcripts.cnn.com/TRANSCRIPTS/0601/23/ltm.08.html)

* But Senator Jay Rockefeller released a sealed 7/03 letter that warned of “profound oversight issues” with warrant-less spying program: “For the last few days, I have witnessed the President, the Vice President, the Secretary of State, and the Attorney General repeatedly misrepresents the facts. The record needs to be set clear that the Administration never afforded members briefed on the program an opportunity to either approve or disapprove the NSA program. The limited members who were told of the program were prohibited by the Administration from sharing any information about it with our colleagues, including other members of the Intelligence Committees.” ( http://thinkprogress.org/wp-images/upload/Intell.pdf)

* And in a separate report from the one described above, the Congressional Research Office concluded that “the Bush administration’s limited briefings for Congress on the National Security Agency’s domestic eavesdropping without warrants are ‘inconsistent with the law.’” (“Report Questions Legality of Briefings on Surveillance,” New York Times, 1/19/06)

# Contrary to Administration Claims, NSA Spying Uncovered “No Imminent Plots . . . Inside the United States.”

* “The law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks. ‘There were no imminent plots - not inside the United States,’ the former F.B.I. official said.” (“Spy Agency Data after 9/11 Let F.B.I. to Dead Ends,” New York Times, 1/17/06)

* Contrary to Administration Claims, NSA Spying Program was Broad and Unfocused. o “In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month. […] ‘We’d chase a number, find it’s a schoolteacher with no indication they’ve ever been involved in international terrorism - case closed,’ said one former F.B.I. official…After you get a thousand numbers and not one is turning up anything, you get some frustration.’” (“Spy Agency Data after 9/11 Let F.B.I. to Dead Ends,” New York Times, 1/17/06)

# Numerous Legal Scholars and Republican Leaders say President Bush Broke the Law.

* CONSTITUTIONAL LAW SCHOLARS AND FORMER GOV. OFFICIALS: “Although the program’s secrecy prevents us from being privy to all of its details the Justice Department’s defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.” (“On NSA Spying: A Letter to Congress,” The New York Review of Books, 2/9/06)

* SENATOR LINDSEY GRAHAM: “If he has the authority to go around the FISA court, which is a court to accommodate the law of the war of terror, the FISA Act was–created a court set up by the chief justice of the United States to allow a rapid response to requests for surveillance activity in the war on terror. I don’t know of any legal basis to go around that . There may be some, but I’m not aware of it.” (http://thinkprogress.org/2005/12/18/no-legal-basis/)

* SENATOR ARLEN SPECTER: “‘There is no doubt that this is inappropriate,’ said Sen. Arlen Specter (R-Pa.), who favored the Patriot Act renewal but said the NSA issue provided valuable ammunition for its opponents.”(“On Hill, Anger and Calls for Hearings Greet News of Stateside Surveillance,” Washington Post, 12/17/05)

* GROVER NORQUIST: “Referring to what some see as a conflict between fighting vicious terrorists and upholding all civil liberties, Norquist said: ‘It’s not either/or. If the president thinks he needs different tools, pass a law to get them. Don’t break the existing laws .’ ” (“Political opposites aligned against Bush wiretaps,” San Francisco Chronicle, 1/26/06)

* JOHN MCCAIN : “Wallace: But you do not believe that currently he has the legal authority to engage in these warrant-less wiretaps. McCain: You know, I don’t think so, but why not come to Congress?” (Fox News Sunday, 12/22/05)

* CHUCK HAGEL : “Chuck Hagel said he is looking forward to congressional hearings on the legal justification for the secretive National Security Agency program. He remains unconvinced that Bush could allow the program without fully consulting with the courts or Congress.” (“Hagel Urges Bush to Explain Spy Program,” Associated Press, 1/29/06) “If he needs more authority, he just can’t unilaterally decide that that 1978 law is out of date and he will be the guardian of America and he will violate that law.” (This Week, 1/29/06)

* CONGRESSMAN BOB BARR: “It’s bad to be spying on Americans apparently in violation of federal laws against doing it without court order. So it's bad all around, and we need to get to the bottom of this. . . And if we're going to say, well, simply because some people think that this is a new threat, we're going to throw the constitution and specific laws out the window and let a president rule by the seat of his pants, is extremely dangerous, and it's uncalled for. The president had full authority to have done this under the law. He apparently chose not to, and we need to find out why? . . . Well, I am because the law provides very vast authority, and for the president, or Frank Gaffney to justify the president saying even though I have the authority under the law to do it, I have to take certain steps, I'm just going to ignore that, puts us in a situation where we've seen in decades past, with Mr. Nixon, with President Lincoln and others, President Truman, when they overstep their bounds, they need to be held accountable.

# Americans Disapprove of Bush’s Overreach, According to Polls.

* CNN/USA Today (Jan. 20-22): “As you may know, the Bush Administration has been wiretapping telephone conversations between U.S. citizens living in the United States and suspected terrorists living in other countries without getting a court order allowing it to do so. Do you think the Bush Administration was right or wrong in wiretapping these conversations without obtaining a court order?” Right 46%. Wrong 51%. (http://transcripts.cnn.com/TRANSCRIPTS/0512/16/sitroom.03.html)

* CBS/NYT (Jan 20-25): “After 9/11, George W. Bush authorized government wiretaps on some phone calls in the U.S. without getting court warrants. Do you approve or disapprove of George W. Bush doing this?” Approve 46%. Disapprove 50%. (http://www.pollingreport.com/terror.htm)

Posted by: Sum1 at July 4, 2006 07:36 PM

Ryan,

I believe you are misinterpreting the Constitution:

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Does not refer to Congress making laws defining the President's powers, but to cabinent/department officers. By your logic, the President would need a Law to move his armies from point A to B, after all, it's not explicitly stated in the Constitution.

BTW, I think more concise Comments may help your cause; I'm just saying...

Posted by: moomoo at July 4, 2006 07:41 PM

thom

The "program" has been tracking terrorist finaances--are you thick enough to think that they're goin to stop?

Make up your mind. Either the program was already known so it wasn't doing any good anyway because the jihadi financiers already knew to avoid it, or it is doing its job so effectively that nothing is going to stop it.

You can't have it both ways.

And answer me this. If you're so sure the program will continue why is Canada making noises about withdrawing from the SWIFT program? Belgium too.

Posted by: Syl at July 4, 2006 07:43 PM

baa baa right sheep have you any wool?

uh, we're pretty sure that's a secret, the telling of which will be treasonous and destroy America.

Posted by: ken at July 4, 2006 07:44 PM

Keller did get one thing right .. Congress is always the last to know anything. While the rest of the world knew of the SWIFT "secret," it seems, according to Keller, that the Congress didn't know.

Posted by: Neo at July 4, 2006 10:51 PM

Thanks for a brilliant and witty analysis.

Keller et al. must be feeling the heat to be resorting so quickly to logical and verbal contortions and distortions.

I have already expressed on my weblog my hope that the journalist traitors will be put on trial. I'd be happy to settle for them going to jail for months if they refuse to give up their criminal sources.

But I don't think they'd do that. I think it's becoming clear that they will squeal on their informants like stuck pigs, if they're threatened with jail time for not turning them over.

Of course, the delicious irony is they set themselves up for that, what with their position in the Valerie Plame affair.

Posted by: ELC at July 5, 2006 10:27 AM

I linked to your article in my post: NYT's Keller wrong. Some never knew about SWIFT

Posted by: bernie at July 6, 2006 11:26 PM

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