Arkin on NSA, Plus: I Finally Take A Position (Kind Of)
William Arkin, who has been the subject of both cheers and jeers from this quarter (and who tried to label me as some rightwing yahoo – who said “if the shoe fits”? I heard that!), has a good post up at the WaPo that sheds some light on what might be going on with the NSA eavesdropping story (though the lunatics in his comment section are almost as bad as the Huff’n'Puffers).
I’m leaning towards the theory that the reason Bush acted outside of FISA was that these communications would not have received a warrant under prevailing definitions because they utilized novel techniques, technologies, or methodologies. If you see parallels between this and other programs such as Able Danger and TIA, you’re not the only one.
I don’t claim this interpretation is the gospel, but it seems to me to hold the most water with the facts as we currently know them. Notice also that this position is somewhat neutral; Bush will claim authority under the ‘plenary’ war-time powers theory, his opponents will say we no longer have a Constitution, and the truth, probably lying somewhere in between, will be sorted out by Congress, the courts, or the next President.
I don’t know if this was legal or constitutional; greater minds than mine are arguing that all over the place. I feel confident that Bush feels it was both, based on advice given to him by the AG and other administration legal entities (and yes, I realize there is a ‘yes man’ component at work here).
I sincerely doubt that this will ’scandalize’ the remainder of the Bush presidency, or constitute sufficient grounds for impeachment; an important part of the reason that Nixon went down was the ‘why’, not merely the ‘what’. Nixon targeted political enemies, ordering IRS audits, wiretaps, and burglaries that served no national security interest whatsoever; he was, by all accounts, a great, but greatly flawed, man who displayed definite paranoid tendencies.
George W. Bush’s motivation here was clearly not personal. I know as well as you that the law is the law, etc., etc., but let’s face it, motives count, and the motive here is the best possible one a President can have: the security of the American people. This is not an attempt at sycophantic apologism, but rather, I think, a pretty realistic view of how most Americans would view this, if my theory and interpretation of the facts is correct.
Of course, all of this is subject to revision if and when we find out more. Clearly, the President feels strongly that whatever program is behind this story is yielding results, as he has made it clear that he doesn’t intend to stop. Therefore, it seems quite reasonable to assume that this will be the subject of hearings in the not too distant future, or legal action. I’m taking the long view; I won’t condemn or absolve the action, because I don’t know what it is, but everything we know about this President fills me with the utmost confidence about his motives.
Let the chips fall where they may…
I’ve seen nothing to indicate to me that the reasoning behind this was necessarily technologically based. Could it not just as easily have been that the Administration didn’t feel that they’d get the warrants for the specific people they were targeting? Until we know (and they’re certainly not letting on, by claiming that the President can do whatever he wants during “wartime,”), I think it’s somewhat irresponsible to say that the President clearly was operating strictly in the interests of national security here. The facts just don’t bear that clearly out yet.
Let me just say, as an addendum, that I’m not trying to espouse any kind of conspiracy theory here, and I think that in all likelihood he probably did have the national security in mind. All I’m trying to say is that, with what we’ve been getting from the White House, there’s no clearly about any of this. At least not yet.
Fargus, from the Kevin Drum piece I cited yesterday:
# Attorney General Alberto Gonzales, telling reporters why Bush didn’t simply ask Congress to pass a law making the program clearly legal: “We’ve had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be — that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program.”
# President Bush, answering questions at Monday’s press conference: “We use FISA still….But FISA is for long-term monitoring….There is a difference between detecting so we can prevent, and monitoring. And it’s important to know the distinction between the two….We used the [FISA] process to monitor. But also….we’ve got to be able to detect and prevent.”
# Senator Jay Rockefeller, in a letter to Dick Cheney after being briefed on the program in 2003: “As I reflected on the meeting today, and the future we face, John Poindexter’s TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveiliance.”
# New York Times editor Bill Keller, explaining why the Times finally published its story last week after holding it back for over a year: “In the course of subsequent reporting we satisfied ourselves that we could write about this program — withholding a number of technical details — in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record.”
What’s the common thread, as Drum asks? The program, distinction between monitoring and detecting, Rockefeller’s mention of the TIA, the technical details – we’re not talking things that are related to individuals. Unless all these people are wrong, and notice they come from both sides of the fence. Scott McClellan has made similar comments, and Bob Graham talked of the briefing by Cheney as signaling a new technological approach…
[...] I argued earlier tonight that I don’t see Snoopgate, as some wags are already calling it, as being a cloud over the remainder of Bush’s presidency, and I stick by that. I also said that there is every indication that this will be the subject of hearings quite soon, and this story only adds fuel to that fire: A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush’s secret authorization of a domestic spying program, according to two sources. [...]
Sorry, I didn’t put the emphasis on the word I wanted to emphasize. I haven’t seen anything that necessarily indicates that. Anything that places that conclusion beyond doubt for me. That’s all I meant.
Oh, I agree…that’s why I’m still hedging a little…but those statements would certainly be odd if there wasn’t a technological component…
[...] What’s the problem with all this? First, what Fineman gets right – yes, we will hear a lot more of this, from the fringes (and sadly, I do consider Howard Dean and Harry Reid to be operating from the fringe; they may have mainstream job titles, but they’re playing to the hardcore activists)…but it will not stick, and I explained why in an earlier post (and I do realize that Fineman, as usual, takes the cowardly way out and doesn’t claim these dictatorial, Nixonian views as his own – but if it quacks like a duck, etc., etc.). [...]