I didn’t catch President Bush on the radio recently, but I would like to note a few things. Firstly, the legality of the NSA’s eavesdropping on American citizens is a bit over my head, but I’ll defer to Mark Levin’s knowledge on the issue at least when it comes to communications of American citizens with foreign nationals, as well as emergency authorizations by the Office of the President.
Now, while Eric has dripped with sarcasm over Bush’s support of the PATRIOT Act (a law I hardly agree with anyway), I’d rather focus on Bush’s indignance over the media’s leaks of our less than honorable, but perhaps necessary, practices abroad:
This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies. Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country.
One quote from Levin to which I will simply say “what he said:”
But these leaks — about secret prisons in Europe, CIA front companies, and now secret wiretaps, are egregious violations of law and extremely detrimental to our national security. They are far worse than any aspect of the Plame matter. The question is whether our government is capable of tracking down these perpetrators and punishing them, or will we continue to allow the Times and Washington Post determine national security policy. And if these wiretaps are violative of our civil liberties, it’s curious that the Times would wait a year to report about it. I cannot remember the last time, or first time, this newspaper reported a leak that was helpful to our war effort.
Let us assume, then, that whoever it was who leaked Valerie Plame’s name gets prosecuted and punished under the full weight of the law. Can we expect the same justice and accountability from those in the media that leaked this classified information? Or will those in charge of enforcing the law choose to turn a blind eye out of fear of what the media can do?
UPDATE: I thus ride both with Dean Esmay’s emotions and thoughts on the matter
(compensating for my legendary anal-retentive tone). Says he:
I think they are all being rather timid. These leakers have exposed a perfectly legal, perfectly sensible government operation that has undoubtedly helped round up hundreds of members of Al Qaeda and saved the lives of countless Americans. Exposing such a secret program is not whistle-blowing–it is high treason.
When I say “treason” I don’t mean it in an insulting or hyperbolic way. I mean in a literal way: we need to find these 21st century Julius Rosenbergs, these modern day reincarnations of Alger Hiss, put them on trial before a jury of their peers, with defense counsel. When they are found guilty, we should then hang them by the neck until the are dead, dead, dead.
No sympathy. No mercy.
Considering the year-long wait taken by the media to release this story, it certainly adds mens rea to the act, a definite and malicious (if quite misguided) intent not present, say, in Geraldo Rivera’s careless disclosure of his position in Iraq (considered classified, too, in the theatre of war) which should have granted him the privelege of staying there and welcoming the jihadists anyway.
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[...] By exposing top secret information and damaging US national security, certain journalists could be seen as providing aid to enemies of the United States. While it was surely not their intention, it was without a doubt the result. Should, and to what extent, such action be punished? Keep in mind, that those who reveal and leak such information to journalists would naturaly also be held as traitors. What say you? [...]
Pingback by ComingAnarchy.com » Blog Archive » How Do You Define Treason? — Dec 18, 2005 @ 9:59 am
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I am as much a fan of doing whatever is necessary as the next guy, but where is the line? I think that resrouces are grossly wasted when applied towards running down college students reading a communist manefesto. Fortunately, the nonsense keeps coming. There is an article in the Washington Post that suggests that Pres. Bush made up the laws he cites in defending his actions with the NSA [CNN version w/o nag registration here]. While the war on terror must be won, will we sacrifice everything to do so?
While this program and others like it may be classified, being stamped “Top Secret or better” isn’t a protection when laws are being recklessly violated.
Comment by ETR — Dec 19, 2005 @ 3:45 pm
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I’d like to see in the article the suggestion that Bush made up the laws he cited, while it is a tortured parsing of the verbage to include eavesdropping as included under “force” in the following passage:
My understanding is the communications between American citizens and foreign nationals are far less protected under FISA than, say, between two American citizens. My understanding is the administration believes it has followed the letter of the law only to have been accused of having violated them. I’d like to see this case fleshed out a little more; should this law fail constitutional mustard it would thus make the method unavailable to the Office of the President.
If there is one word that does not describe these actions, legal or not, it is “reckless.” The actions of the administration have been deliberate and have been carefully ensured to be legal and ethical, at least by statute. You know what we have discussed personally, ETR. I will not debate you on the level of whether these actions are moral (right or wrong) but merely on the ethical level (correct or incorrect).
As an aside, personally, I don’t like it at all, and consider it a bad thing, on a moral level, but we all got all sorts of legalized immorality out there…
Comment by OF Jay — Dec 19, 2005 @ 4:05 pm
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Bush may be using a made up law. You also read it in the post express today
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First on the FISA thing: since that court has a 99.99% approval rate for covert surveillance, how much more does Bush need? FISA rulings are not subject to additional review, judicial or otherwise.
Since I am a big buff when it comes to seperation of powers, let me pose the critical question (feel free to disagree):
Should we give such a blank check to the President just because of the ‘War or Terror’?
As an aside, let me point out that if the NSA/Bush broke the law in conducting/approving these investigations, they may be reported to the public, or anyone else, without penality. No one can call this treason unless they can prove that the investigation was legal in the first place.
Comment by ETR — Dec 19, 2005 @ 4:54 pm
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As a continuation of the discussion, here’s a legal analysis of the current situation from the Volokh Conspiracy’s Orin Kerr, one of the fairest legal minds you can find among bloggers. The president isn’t using war powers as the statute on the basis of his domestic surveillance, it is in the so-called “Authorization to Use Military Force,” which has passed constitutional muster under Sandra O’Connor’s majority opinion. The question is whether the application of the verbage of that statute allows domestic surveillance of what the administration believes are foreign enemies, or citizens in communication with foreign enemies. I’ll defer to Kerr’s opinion that the AUMF does not; however, what’s left then is the question whether there was a deliberate and knowing violation of the law (malicious intent) or a careful but tortured parsing of the law that led them to think they were doing something legally when it turns out that it wasn’t. That difference will decide whether Bush and his team were a bunch of blundering dolts or scheming, supergenious dictators.
Also, Ann Althouse has more than a few thoughts on the matter, including pointing out the obvious that members of Congress have known of this since forever and haven’t really spoken up:
I will say this, as per our extra-blog conversations on the topic, it isn’t as cut and dried you think it is, at least for now. I’ll heed Ann Althouse’s advice: “I think that at the very least fair-minded observers should see that the problem is complex. Cries that the program is blatantly unconstitutional (or obviously constitutional) should be recognized as unhelpful.” While you may think I am very quick to defend this admin absolutely as beyond reproach, you know I am not. Nor will I be as quick to judge this administration as evil, as I’m sure many among the left already have. I’d like to see the issue and the investigation fleshed out more. I do stand by my assertion that if Congress has found the President and all accomplices guilty of grave constitional violations, that they be impeached. I’ll certainly welcome President Dennis Hastert.
Also, one last thing you have not responded to among my points: I understand that if the whistleblowers are tooting their horns about a top secret but illegal activity, they are thus immune from charges of treason and leaking confidential information, but what of the other details that have been leaked out? The ones that are perfectly legal, like our CIA front companies and secret prisons in Europe? Both are as legal as the concept of rendition but at least the fact that we engage in rendition is not top secret (though whom we render unto other nations is). Those who blew the whistle on the domestic spying may be immune from charges of releasing confidential info should the spying be declared illegal when it comes to the domestic surveillance, but they won’t be safe from charges of leaking out the other info. What do you think about that?
UPDATE: One more additional link. Dean Esmay takes a more than “benefit of the doubt” stance on the matter:
That much is also true. They can snoop in all they want, but they can’t use that evidence to prosecute you or engage you as an enemy combatant at a time of war. The operative phrase, as I understand, under 50 U.S.C. 1809 is “under color of law.” Again, I don’t share Dean’s liberal approach towards the activity, but he does raise a few points in the piece I linked to. He would, ultimately, a far much more fun person to debate with on this matter, as my stance is still, ultimately, “let’s wait and see.”
Comment by OF Jay — Dec 20, 2005 @ 7:34 am
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[...] We are all now aware of the controversy over the alleged legality of domestic wiretapping. Some in the blogosphere argue that these taps are completely legal on constitutional grounds. I’m going to draw out the details of something I started here [OneFineJay]. I feel that an existing legal analysis falls a bit short, in that it does not show the constitutional crisis that is brewing over this issue. It also does not draw any Constitutionally-centered conclusions regarding Congressional oversight and seperation of powers. [...]
Pingback by Eric the Red » The Police State of King George vs. the People and Common Sense — Dec 20, 2005 @ 11:51 pm