Friends And Allies Of Rome: Tearing Up Jonathan Alter
I had been wanting to comment on this since I heard the interview. But I was busy, and missed pieces of it, so I waited for Duane. As a blogger, when it comes to commentary, that sometimes gives way for news we are reporting and commenting on. So, I had to keep putting this off, but I'm dealing with this nut right now.
HH: Very pleased to welcome Jonathan Alter to the Hugh Hewitt Show for the first time. We've had his colleague, Howard Fineman, on a number of times. But Jonathan Alter is of course a senior writer and reporter for Newsweek. You see him a lot of MSNBC and other cable channels, and yesterday authored a column on the Newsweek website, Bush's Snoopgate, which has become probably the most controversial thing written about the NSA surveillance of al Qaeda communicating with American citizens controversy. Jonathan Alter, welcome to the program.
JA: Thanks very much, Hugh.
HH: Were you on the Crimson at Harvard?
JA: I was indeed.
HH: I thought you might have been around Grover and Nick Lehmann and all those people, so...
JA: Yeah, yeah, and I've known Grover and Nick Lehmann for many years. I was a couple of years behind them.
HH: You were a year behind Grover and me, and three years behind Nick. But I'm not sure we ever crossed paths. I was off doing Institute of Politics stuff. But Jonathan, let's...
JA: I did that too, as a matter of fact. I was a Harvard political review guy as well.
HH: Well, then we may have very well clinked glasses at some point and stared at each other menacingly across...I'm joking. Yesterday, you wrote, "we're seeing clearly now that Bush thought 9/11 gave him license to act like a dictator. Do you think George Bush is acting like a dictator?
JA: Well, I think that in his own mind, if you had read the rest of that sentence, I think he's acting like Abraham Lincoln did during the Civil War, although unlike President Bush, Lincoln actually went and got Congressional authorization for some of the extra-Constitutional things that he did during that war. But I think in his own mind, he's not a dictator. But I think what he did in this particular...and I think to call him flat-out a dictator would be kind of a ridiculous exaggeration. But I think what he did in this case was dictatorial, extra-Constitutional, and I think many conservatives, Senator John Sununu being only one of many, many conservatives agree with me. And they see this as not really just the old kind of partisan mud-slinging, but a real question of separation of powers, and how far presidential power extends.
Talk about a rebel without a clue. First of all, what the president has done isn't extra-Constitutional. It's well within the purview of the Constitution, as one interprets Article II correctly. He is the executive authority in the nation, and under Section 2, he is the Commander in Chief of the military. The military isn't just the guys and girls running around with the guns, and riding in jets and tanks. They're also the people behind the scenes that help coordinate, plan, and execute the moves the military makes. This includes people in intelligence. I know this because my uncle is in intelligence. As they, too, fall under the auspice of the military (even civilian agencies), he may command them as he does the military. Second, citing John Sununu wins him no points. Sununu has been a long-term RINO in the Senate. Not nearly as bad as McCain or Chafee, but one nonethelss.
HH: So do you think he is acting as a dictator acts?
JA: I think he's acting dictatorially, yes. Because what a dictator does, and you know, it's funny. I'm just finishing writing a book that's going to be published next May about Franklin Roosevelt. And it's about Roosevelt in his first hundred days. And as he was coming into the presidency, editorials all around the country called for him to be a dictator. And he actually...I have a little scooplet, where he had a draft of a speech to the American Legion, where he basically created a private army, said under my powers as commander-in-chief, you are at my service, you being veterans, for the duration of the crisis, which at that point, was a banking crisis. You know, the country was flat on its back. And he had no Constitutional authority to do that at all. He decided not to give that speech, and not to move in an extra-Constitutional direction, although four years later, a number of people thought he did when he tried to pack the Supreme Court. In Bush's case, the reason that this is dictatorial, Hugh, is that when he says that his authority for doing this comes from two places, in his press conference...one, the Constitution, and two, the authorization, the Congressional authorization after September 11th, the Congressional resolution that said he was allowed to use all necessary force, quote unquote. But that was for military intervention. That was not a blank check to do absolutely anything that he wanted in the War On Terror.
Again, he's clueless. The Left have tried to divide this issue. First, they divide it on the AUMF regarding 11 Sept., but they also keep emphasizing "force." And again, let me spank him a bit here. I have in front of me my handy-dandy Webster's Dictionary. If he wants to split hairs on language, then let me make the first cut:
force: 1-strength or energy exerted or brought to bear : cause of motion or change : active power...
That's the first definition. The remaining definitions apply to the military in terms of size, and acts committed by the military, i.e. violence. Force is bringing about a change, and that's exactly what the president did. He changed how we tracked and monitored the people that want to hurt us.
HH: Now Jonathan Alter, let me get a couple of questions in. Have you read In re Sealed Case, and the Keith case, also known as United States v. United States District Court, Eastern distirct of Michigan?
JA: Are you talking about the Hamdi case?
HH: No. I'm talking about the two cases interpreting the national security acception to the warrant requirement of the Fourth Amendment.
JA: First of all, no, I haven't read those cases. But I'm actually not making a Fourth Amendment argument, because if you look at, for instance, border security and that kind of thing, there's a lot of caselaw. You know this much better than I do, Hugh, you know, that interprets the Fourth Amendment in different ways. I'm not saying that he's being unconstitutional in...
HH: You're saying extra-Constitutional. But in fact, these cases are very emphatic that what he has done is not extra-Constitutional.
And by admitting that he hasn't read the case (case that Marcie, Sabrina and I have read) then his argument is null and void; pointless with no back-up. The central point Alter has made up to this point is that the president granted himself "extra-Constitutional" powers. They aren't. They're inherent, and there are plenty of cases, including US v. Us District Court, that show the president is acting in accordance with his powers withint he Constitution. This is not just court-backed, but it's also backed in the history and traditions of the presidency.
JA: No, no. We're talking about two different things. This is a critical, critical point. I am not saying that he violated the Fourth Amendment. That is a very complex question to look at. What I'm saying is that he, by claiming that he's in violation of the 1978 foreign intelligence surveillance act, and that that act sets up the FISA system, and it's a good system. It works. His doubts about the timeliness and everything are a crock, because we know that you can do it retroactively.
FISA does no supersede the president's powers within the Constitution. It can't contradict those powers, or remove them. They are there, set in stone, and can't be changed without the proper amending process. The president doesn't have to abide by a law that is contradictory to his powers enumerated in the Constitution. Hugh and I aren't talking about the Fourth Amendment either. We're both standing up for the president's powers in the Constitution. Alter forgets that NOTHING can supersede the Constitution. It is the highest law in the land. FISA is not within it, nor does it sit above it.
HH: But Jonathan, the 2002 case, In re sealed case, is the FISA appeals court case directly on point, which refutes your assertion, and you haven't read it.
JA: What does it say? I haven't read it. What does it say?
HH: It says that the context of the president's authority to avoid FISA has certain Constitutional roots, and is no way dependent upon FISA's language.
BINGO!! Checkmate. The courts have spoken to the fact that the president doesn't have to abide by FISA's language if they are contradictory to his inherent, enumerated powers, and in fact, it's inherent in his duties.
JA: So you're saying that this has been litigated?
HH: I'm not saying that. I'm saying that the assertion that you're making is directly reputed by In re sealed case.
JA: Well, let's look closely at the case, which you've read. Tell me what the case was, and what the court found.
HH: I will be happy to read that to you at length, In fact, I'll send you the link.
JA: No, no. Before you just assert that somehow a court has validated him violating the law, which he did in this 1978 law, tell me how.
Simply put, he has the authority under Article II, Section 1, Claues 1: "The executive power shall be vested in a President of the United States of America." He is the lord, high muckety-muck. We chose him, and he's it. He has the power to execute ALL the duties of his office to the best of his abilities. Under Article II, Section 2, Clause 2, the Constitution 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." When we go to war, we expect that the president will do almost anything and everything to protect the nation, and defeat our enemies. We expect this because he is Commander in Chief. If he were to act one whit below his full potential, the public would get really angry. He has the ability to command our intelligence agencies to track down, surveil, and apprehend foreign nationals in this nation who are attempting to strike us. To state that he doesn't is foolish. To demand that the foreign nationals have the Fourth Amendment protections extended to them is just positively retarded.
HH: He did not violate the law, because what the court says, the appellate court, the panel says, is that there is no reason to believe that FISA controls the president's inherent authority, and it could not control the president's inherent authority. And like the Supreme Court before it in Keith, it refuses to rule on that issue.
JA: Inherent authority to do what?
HH: To conduct surveillance on foreign powers in contact with American citizens.
JA: Well, I mean, that's, you know, it would be interesting to see what the Supreme Court and true conservatives on the Supreme Court did with that. If that's basically saying...
HH: Well, again, I have all the links at Hughhewitt.com. Let me go on with our article, though, because there's another incredible thing that you write. It was the work of a patriot inside the government who leaked the NSA program.
JA: Absolutely.
HH: Now define for me what you would think of someone who, thinking that they were acting as a patriot to stop governmental abuse, actually revealed methods and operations that led to the deaths of Americans.
JA: I think they should be prosecuted for doing so.
HH: All right.
JA: But let's be clear about this, Hugh, because there's been an awful lot of hokum on this on the internet today. There's nothing in that New York Times story that goes to sources and methods. There's nothing in that story that compromises national security in the United States. Nothing.
Incorrect. The simple fact the story was blown is enough to jeopardize lives. The enemy now knows that they don't have the protections the Left wishes, and claims, they had. They will change their strategy, and that change could cost lives when they vanish off the radar screen. Look, maybe Alter thinks that there's a sign in downtown LA or New York that reads "Come to Uncle Habi's terrorist training center" but there isn't. These people work in tight groups, despise outsiders unless they are informed of them, or that they know them from the places they frequent, and are of similar ethnic background. They aren't out in the open, which is why we activated this program.
HH: And if, in fact, you're wrong, because there is something that became aware. But you're saying there isn't.
JA: Well, there isn't. There isn't. I mean, there is nothing about sources and methods. And if you're telling me that the existence of spying on...of using FISA to spy on American citizens, that the existence of that compromises the national security, the burden is on you, Hugh, to explain why.
HH: Now the first thing is, I just wanted to establish that it did break the law, did it not, for this individual, or individuals to reveal this program, correct?
JA: Did it violate classification systems? Yes.
HH: And that's breaking of the law, right?
JA: That...yeah, and that wasn't the president breaking the law. But yeah, you could say that...
HH: And so, should this individual be investigated and prosecuted?
JA: Should...for leaking? Well, you know, that's a really interesting case...question. I don't believe so, no, because I think if you look at the history of this country, that if we...and Patrick Fitzgerald, by the way, agreed, which is why he didn't go to this point in his investigation. If you say that every time a leaker reveals something that some bureaucrat has thrown a classification sticker on, that that person should be prosecuted, you basically will have a government by press release, and you will eliminate the free flow of information that we depend on to make smart choices in our society. So no, I do not think should prosecute.
HH: Jonathan, are you familiar with what SCI is, Sensitive Compartmented Information?
JA: Yes.
HH: And do you believe that this individual, who leaked this program, had access to SCI?
JA: I simply don't know.
HH: I have to assume he did, because I believe all materials relating to this...I used to be the SCI special assistant to the attorney general, had to be classified SCI. So would you trust this individual to continue to handle SCI information?
JA: No, I wouldn't. I wouldn't. But I think...I can see why from the government's perspective he couldn't be trusted at this point. But I think from, if you're looking it in a larger historical sweep, from...and in the interest of the American people, that if you have somebody...whistle-blowing is extremely important. I know you agree, Hugh. And that if you have somebody in the government who has some pretty good evidence that the president of the United States violated a 1978 law, it's important for him to come forward. And I also think...
He didn't violate the law! He executed his enumerated duties. He is the Commander in Chief, and controls all aspects of the war. This includes intelligence, and how we gather it.
HH: I don't believe that there's any evidence for that, whatsoever, nor could anyone in the possession of this have that.
JA: What do you mean there's no evidence for that? That the FISA law says that you have to go...you can do it retroactively, but you have to go and you have to get court approval from the FISA court.
No you don't. Below is Part One of FISA. I posted this up a couple days ago, and highlighted a portion of it. It's key, and it destroys Alters ridiculous argument.
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
FISA specifically states that they can authorize surveillance "without a court order." He obviously hasn't read FISA, either, in addition to the court cases he hasn't read and researched.
HH: Again, Jonathan, you've got to read the cases. No, you don't.
JA: That's what the law says, Hugh.
HH: I mean, that is not what the law says. You have not read the cases.
JA: You haven't read the statute. 1809...USC 1809. Read it.
HH: Jonathan, In re sealed case is a 2002 decision.
JA: Hugh, read USC 1809. Read that statute.
To Hell with 1809. FISA is right above. Alter has simply no clue what he's arguing about.
HH: Jonathan Alter, in the November 7th issue of Newsweek, you wrote about the seriousness of blowing the cover of CIA operative Valerie Plame. Do you believe that that was more serious that what has happened with the NSA program leak?
JA: Oh, absolutely. Yeah, because that cost...she was what's called non-official cover. The CIA invested millions of dollars in her, and whatever you think of Joe Wilson and Valerie Plame now, I don't think they're covering themselves in glory. It was damaging to the CIA to have that revealed. In this case, this isn't going to prevent us from catching terrorists, you know, this revelation. Hugh, you've got to understand. I'm a hard-liner on terrorism. I don't have any problem with eavesdropping. I want it to be done in a legal way. There's a legal standard that's established for it. You said that there's a court decision here that says...that gives the president standing under the 1978 statute to do this...he didn't claim that.
He may claim to be a "hard-liner" on terrorism, but he doesn't know anything about the Plame affair, either. She was no a non-official cover. She had been back in the states for over five years. Her overseas NOC was expired, and wasn't renewed by Langley. Nevermind the fact that Joe Wilson blew her cover almost a full year before the Novak column, and the fact that they didn't keep this "secret" from the people they knew in the social circles of DC.
HH: No, I didn't. I said that the issue has been specifically reserved to the Supreme Court, and has not been decided, and under this opinion, which is lengthy and complicated, and I'll send it to you. I just want to put that aside, though. I want to get your standard in place, because you think the leak of Valerie Plame is much more serious than the leak of this NSA program.
JA: No, no. I won't say much more serious. I don't want to put a comparative value on it. But there, the damage, if you were looking at damages, you know, to say the way you would in a legal case, I mean we know that all the CIA cut-outs, proprietary fake companies that they created for Valerie Plame, and all the people she dealt with, all that is money down the toilet. All that was wasted. In this case, it's hard to assess the collateral damage. There's nobody...all the commentary in the last few days, nobody has said what damage this story did. The president...
Valerie Plame wasn't the only person who worked for those companies set up by Langley. There were others who worked there, for sure. But the damage that Plames identity came to light is nil compared to the damage created by revealing a top-secret program we were using to track terrorists in this nation. Alter's out on a limb with this, and I'm just sawing away at it.
HH: But Plame's damage is just money? Is that what you're saying? It's just lost money?
JA: No, no. The president asserted that it helps our enemies.
HH: No, the Plame damage. I'm talking about Plame.
JA: No, it was a bad precedent to expose...I mean, I talked to several people who had been in the CIA about this, who are non-political people. They were all upset about this. You know, it's just a bad deal to go around talking about who might, or might not be in the CIA.
I don't suppose he'd be willing to share the names so we can see what they really think about the Plame case; whether his assertion can be corroborated or not? Anyone? Anyone? Bueller? I didn't think so. Look, the burning of a covert operator should never be accepted by anyone. But Plame wasn't an operator. She was a lousy analyst. To Langley, they're a dime a dozen, and just as easily lost to the private sector as they would be laid off. It's nonsense to even address Plame as a national security asset. She wasn't. And she was no operator.
HH: In this same column, you wrote, "'Army General Eric Shinseki preciently says that winning in Iraq will require several hundred thousand troops,' he's sent into early retirement." Are you arguing that Shinseki was sent into early retirement because of this statement?
JA: JA: Oh, there's no question that he was dissed by the Pentagon.
Shinseki and his spokespeople have refuted this calim numerous times. There are no hard feelings at all between Shinseki and the Pentagon. Jonathan, "dissed"? Please, son get a new vocabulary.
HH: But you wrote sent into early retirement. Was he sent into early retirement because of his testimony?
JA: He would have been kept on, yeah. He would have been kept on.
HH: How long? How long would he have been kept on for?
JA: Well, you know, I don't know when his tour ended. But he was...let me tell you something, Hugh, you might not know. When he retired, there's normally...there was a retirement ceremony for him at West Point. Do me a favor. If you're interested in this, talk to the Commandant of West Point. Talk to the officers up at West Point. They felt seriously dissed by the Pentagon. Not only didn't Rumsfeld go, they didn't even send a high-level representative. This was unprecedented for the retirement of somebody at that level.
HH: But you wrote in here that he was sent into early retirement.
JA: They dissed him.
HH: ...suggesting that he was cashiered and fired...
JA: No, he was sent into early retirement. He wasn't fired. But he did not have to retire at the point that he did. If he had been...if they had liked him, they would have found a way to give him another assignment...I don't know, head of NATO...who knows? Something else to do. Instead, they told him you're done.
Shinseki has specifically stated the he wasn't forced into retirement. He was asked if he wanted early retirement. He agreed. They didn't force anything onto him.
HH: Now, I want to go back to why you're concerned about the president doing dictatorial things. You know, on the night of election, and I don't want to cheap shot you...
JA: You're conservative. You should be concerned about it, too, if you're a real conservative.
HH: I don't think he's even remotely close to that. But nevertheless, in 2000, Jonathan, I remember like yesterday, watching you on NBC, urge George Bush to concede the election to Al Gore, right?
JA: No, no. I didn't say that, Hugh. Don't misrepresent what I did. That's just not fair. It's not accurate.
HH: Well, let me read it.
JA: That's not what I said.
HH: "If it turns out that Al Gore wins the popular vote nationally, there will be intense pressure in this country to have him become the president."
JA: Yeah, I said...
HH: Most people think the guy with the most votes wins.
JA: Did that make me say I'm telling George Bush concede? No, I didn't.
HH: No, no. I'm going to keep going here.
JA: So you just paraphrased me incorrectly. I called for a total statewide recount. That was my position.
HH: "Recounts are as much an art as science. The political pressure would mount very quickly to certify Al Gore as the winner, especially since you have a potential conflict of interest, here, with the governor of the state that is handling the recount."
JA: Right.
HH: And then I thought Russert asked you, you mean Gore concede? And you said no, Bush. Didn't you?
JA: No, no. I was talking about...and actually, I was wrong as a prognosticating matter, in thinking that Gore's popular vote victory would cause any political pressure. I was simply flat-out wrong. It didn't. Nobody cared that he won the popular vote.
No, Mr. Alter, because we live in a country where the electoral vote matters more than the popular vote because thet's how we choose the president.
HH: That's what I mean, because that would have been extra-Constitutional. That would have been, actually, unconstitutional, if a...
JA: Right. No, I wasn't suggesting that he should have become president without winning the Electoral College. I was suggesting...and that was a point of confusion there. I wanted, and my position was quite consistent, if you look at what I said in the days following the recount. I thought Gore made a terrible mistake in cherrypicking in counting of counties. They needed a full hand count at the state level, across every county, and let the chips fall where they may.
HH: So you never meant to suggest that Al Gore should be the president, because he won the popular vote?
JA: No, no, no. Absolutely not.
HH: All right. So then, I just wanted to say that didn't...if you had, that wouldn't square with the concern over extra-Constitutionality.
JA: No, no. I know. Absolutely not. That would be unconstitutional.
HH: All right. Let's go back to the dictator stuff, because that's very strong language, Jonathan, and that's what got everyone buzzing here. And I want to read the sentence. "We're seeing clearly now that Bush though 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War." Other than the NSA tap program, what other evidence of dictatorial behavior do you see on George Bush's part?
JA: Let me take you to a story that I broke in late 2001, that got no attention, because there was so much news going on at the time. I'd heard on Capitol Hill that Bush had...the original draft of the Patriot Act, had sought to eliminate habeus corpus. And I couldn't really believe that it was true. And it stunned me. So I called up Jim Sensenbrenner, the Republican chairman of the House Judiciary Committee, and he said yeah, they did, in the panic after 9/11, they actually set up language that for the first time since the American Civil War, repealed the right of habeus corpus. And I said...this is Sensenbrenner talking, I sent it back to Ashcroft, and I said Mr. Attorney General, this won't do. This is a non-starter. Send me a new draft of the Patriot Act, which he did. And which, by the way, I supported. I supported the Patriot Act. I though it was entirely Constitutional. I'm not a crazed lefty who doesn't believe in national security. I want things done, though, according to the law. And in this case, the reason that I'm exercised about this, Hugh, and I think all people, whatever their political persuasion, should be, is that the president's legal standing in his press conference for this...he cited the Constitution, which is an extraordinarily expansive interpretation of the Constitution to say that it gives him the right to have warrantless eavesdropping, in violation of statute. The Constitution, and the Congressional resolution after 9/11, were the two pillars of his legal position. Both of them, according to...you know, basically, any lawyer, Constitutional lawyer you want to talk to, are not supportable. He basically acknowledged that in a larger interest, he though it was okay to violate the law. And that's just not acceptable, and that is dictatorial behavior.
They are supportable. Between the Constitution and the AUMF, the president is required to do whatever it takes to prosecute this war. This is non-negotiable. And Alter still just doesn't get it. Personally, I'd like to check on the bit about Sensenbrenner to see if that is actually true. It would make sense, but then again, habeas corpus applies only to citizens. Foreign nationals not naturalized aren't given that extent of the Constitution.
HH: Okay. Jonathan Alter, I appreciate your appearing. I hope you'll come back. We disagree, and by the way, you've just got to go and read these cases, because you're just wrong. But I appreciate your coming on. We'll talk to you again soon.
And I disagree, as well. The problem that Alter seems to have is he doesn't know what he's talking about. He's not up to speed regarding the precedent and the jurisprudence involved with FISA, or the president's powers during a time of war. I posted up this week that those powers are virtually unlimited. Alter thinks that he has some sort of constraints. In fact, he does. He can't authorize an assassination of a national leader, but he can order the assassination of a terrorist leader. See, Alter is proceeding with the MSM mindset that he knows all, and sees all, and shouldn;t be questioned regarding it. This interview shows me that he's blind, deaf, and dumb when it comes to legal matters like this.
Publius II
I had been wanting to comment on this since I heard the interview. But I was busy, and missed pieces of it, so I waited for Duane. As a blogger, when it comes to commentary, that sometimes gives way for news we are reporting and commenting on. So, I had to keep putting this off, but I'm dealing with this nut right now.
HH: Very pleased to welcome Jonathan Alter to the Hugh Hewitt Show for the first time. We've had his colleague, Howard Fineman, on a number of times. But Jonathan Alter is of course a senior writer and reporter for Newsweek. You see him a lot of MSNBC and other cable channels, and yesterday authored a column on the Newsweek website, Bush's Snoopgate, which has become probably the most controversial thing written about the NSA surveillance of al Qaeda communicating with American citizens controversy. Jonathan Alter, welcome to the program.
JA: Thanks very much, Hugh.
HH: Were you on the Crimson at Harvard?
JA: I was indeed.
HH: I thought you might have been around Grover and Nick Lehmann and all those people, so...
JA: Yeah, yeah, and I've known Grover and Nick Lehmann for many years. I was a couple of years behind them.
HH: You were a year behind Grover and me, and three years behind Nick. But I'm not sure we ever crossed paths. I was off doing Institute of Politics stuff. But Jonathan, let's...
JA: I did that too, as a matter of fact. I was a Harvard political review guy as well.
HH: Well, then we may have very well clinked glasses at some point and stared at each other menacingly across...I'm joking. Yesterday, you wrote, "we're seeing clearly now that Bush thought 9/11 gave him license to act like a dictator. Do you think George Bush is acting like a dictator?
JA: Well, I think that in his own mind, if you had read the rest of that sentence, I think he's acting like Abraham Lincoln did during the Civil War, although unlike President Bush, Lincoln actually went and got Congressional authorization for some of the extra-Constitutional things that he did during that war. But I think in his own mind, he's not a dictator. But I think what he did in this particular...and I think to call him flat-out a dictator would be kind of a ridiculous exaggeration. But I think what he did in this case was dictatorial, extra-Constitutional, and I think many conservatives, Senator John Sununu being only one of many, many conservatives agree with me. And they see this as not really just the old kind of partisan mud-slinging, but a real question of separation of powers, and how far presidential power extends.
Talk about a rebel without a clue. First of all, what the president has done isn't extra-Constitutional. It's well within the purview of the Constitution, as one interprets Article II correctly. He is the executive authority in the nation, and under Section 2, he is the Commander in Chief of the military. The military isn't just the guys and girls running around with the guns, and riding in jets and tanks. They're also the people behind the scenes that help coordinate, plan, and execute the moves the military makes. This includes people in intelligence. I know this because my uncle is in intelligence. As they, too, fall under the auspice of the military (even civilian agencies), he may command them as he does the military. Second, citing John Sununu wins him no points. Sununu has been a long-term RINO in the Senate. Not nearly as bad as McCain or Chafee, but one nonethelss.
HH: So do you think he is acting as a dictator acts?
JA: I think he's acting dictatorially, yes. Because what a dictator does, and you know, it's funny. I'm just finishing writing a book that's going to be published next May about Franklin Roosevelt. And it's about Roosevelt in his first hundred days. And as he was coming into the presidency, editorials all around the country called for him to be a dictator. And he actually...I have a little scooplet, where he had a draft of a speech to the American Legion, where he basically created a private army, said under my powers as commander-in-chief, you are at my service, you being veterans, for the duration of the crisis, which at that point, was a banking crisis. You know, the country was flat on its back. And he had no Constitutional authority to do that at all. He decided not to give that speech, and not to move in an extra-Constitutional direction, although four years later, a number of people thought he did when he tried to pack the Supreme Court. In Bush's case, the reason that this is dictatorial, Hugh, is that when he says that his authority for doing this comes from two places, in his press conference...one, the Constitution, and two, the authorization, the Congressional authorization after September 11th, the Congressional resolution that said he was allowed to use all necessary force, quote unquote. But that was for military intervention. That was not a blank check to do absolutely anything that he wanted in the War On Terror.
Again, he's clueless. The Left have tried to divide this issue. First, they divide it on the AUMF regarding 11 Sept., but they also keep emphasizing "force." And again, let me spank him a bit here. I have in front of me my handy-dandy Webster's Dictionary. If he wants to split hairs on language, then let me make the first cut:
force: 1-strength or energy exerted or brought to bear : cause of motion or change : active power...
That's the first definition. The remaining definitions apply to the military in terms of size, and acts committed by the military, i.e. violence. Force is bringing about a change, and that's exactly what the president did. He changed how we tracked and monitored the people that want to hurt us.
HH: Now Jonathan Alter, let me get a couple of questions in. Have you read In re Sealed Case, and the Keith case, also known as United States v. United States District Court, Eastern distirct of Michigan?
JA: Are you talking about the Hamdi case?
HH: No. I'm talking about the two cases interpreting the national security acception to the warrant requirement of the Fourth Amendment.
JA: First of all, no, I haven't read those cases. But I'm actually not making a Fourth Amendment argument, because if you look at, for instance, border security and that kind of thing, there's a lot of caselaw. You know this much better than I do, Hugh, you know, that interprets the Fourth Amendment in different ways. I'm not saying that he's being unconstitutional in...
HH: You're saying extra-Constitutional. But in fact, these cases are very emphatic that what he has done is not extra-Constitutional.
And by admitting that he hasn't read the case (case that Marcie, Sabrina and I have read) then his argument is null and void; pointless with no back-up. The central point Alter has made up to this point is that the president granted himself "extra-Constitutional" powers. They aren't. They're inherent, and there are plenty of cases, including US v. Us District Court, that show the president is acting in accordance with his powers withint he Constitution. This is not just court-backed, but it's also backed in the history and traditions of the presidency.
JA: No, no. We're talking about two different things. This is a critical, critical point. I am not saying that he violated the Fourth Amendment. That is a very complex question to look at. What I'm saying is that he, by claiming that he's in violation of the 1978 foreign intelligence surveillance act, and that that act sets up the FISA system, and it's a good system. It works. His doubts about the timeliness and everything are a crock, because we know that you can do it retroactively.
FISA does no supersede the president's powers within the Constitution. It can't contradict those powers, or remove them. They are there, set in stone, and can't be changed without the proper amending process. The president doesn't have to abide by a law that is contradictory to his powers enumerated in the Constitution. Hugh and I aren't talking about the Fourth Amendment either. We're both standing up for the president's powers in the Constitution. Alter forgets that NOTHING can supersede the Constitution. It is the highest law in the land. FISA is not within it, nor does it sit above it.
HH: But Jonathan, the 2002 case, In re sealed case, is the FISA appeals court case directly on point, which refutes your assertion, and you haven't read it.
JA: What does it say? I haven't read it. What does it say?
HH: It says that the context of the president's authority to avoid FISA has certain Constitutional roots, and is no way dependent upon FISA's language.
BINGO!! Checkmate. The courts have spoken to the fact that the president doesn't have to abide by FISA's language if they are contradictory to his inherent, enumerated powers, and in fact, it's inherent in his duties.
JA: So you're saying that this has been litigated?
HH: I'm not saying that. I'm saying that the assertion that you're making is directly reputed by In re sealed case.
JA: Well, let's look closely at the case, which you've read. Tell me what the case was, and what the court found.
HH: I will be happy to read that to you at length, In fact, I'll send you the link.
JA: No, no. Before you just assert that somehow a court has validated him violating the law, which he did in this 1978 law, tell me how.
Simply put, he has the authority under Article II, Section 1, Claues 1: "The executive power shall be vested in a President of the United States of America." He is the lord, high muckety-muck. We chose him, and he's it. He has the power to execute ALL the duties of his office to the best of his abilities. Under Article II, Section 2, Clause 2, the Constitution 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." When we go to war, we expect that the president will do almost anything and everything to protect the nation, and defeat our enemies. We expect this because he is Commander in Chief. If he were to act one whit below his full potential, the public would get really angry. He has the ability to command our intelligence agencies to track down, surveil, and apprehend foreign nationals in this nation who are attempting to strike us. To state that he doesn't is foolish. To demand that the foreign nationals have the Fourth Amendment protections extended to them is just positively retarded.
HH: He did not violate the law, because what the court says, the appellate court, the panel says, is that there is no reason to believe that FISA controls the president's inherent authority, and it could not control the president's inherent authority. And like the Supreme Court before it in Keith, it refuses to rule on that issue.
JA: Inherent authority to do what?
HH: To conduct surveillance on foreign powers in contact with American citizens.
JA: Well, I mean, that's, you know, it would be interesting to see what the Supreme Court and true conservatives on the Supreme Court did with that. If that's basically saying...
HH: Well, again, I have all the links at Hughhewitt.com. Let me go on with our article, though, because there's another incredible thing that you write. It was the work of a patriot inside the government who leaked the NSA program.
JA: Absolutely.
HH: Now define for me what you would think of someone who, thinking that they were acting as a patriot to stop governmental abuse, actually revealed methods and operations that led to the deaths of Americans.
JA: I think they should be prosecuted for doing so.
HH: All right.
JA: But let's be clear about this, Hugh, because there's been an awful lot of hokum on this on the internet today. There's nothing in that New York Times story that goes to sources and methods. There's nothing in that story that compromises national security in the United States. Nothing.
Incorrect. The simple fact the story was blown is enough to jeopardize lives. The enemy now knows that they don't have the protections the Left wishes, and claims, they had. They will change their strategy, and that change could cost lives when they vanish off the radar screen. Look, maybe Alter thinks that there's a sign in downtown LA or New York that reads "Come to Uncle Habi's terrorist training center" but there isn't. These people work in tight groups, despise outsiders unless they are informed of them, or that they know them from the places they frequent, and are of similar ethnic background. They aren't out in the open, which is why we activated this program.
HH: And if, in fact, you're wrong, because there is something that became aware. But you're saying there isn't.
JA: Well, there isn't. There isn't. I mean, there is nothing about sources and methods. And if you're telling me that the existence of spying on...of using FISA to spy on American citizens, that the existence of that compromises the national security, the burden is on you, Hugh, to explain why.
HH: Now the first thing is, I just wanted to establish that it did break the law, did it not, for this individual, or individuals to reveal this program, correct?
JA: Did it violate classification systems? Yes.
HH: And that's breaking of the law, right?
JA: That...yeah, and that wasn't the president breaking the law. But yeah, you could say that...
HH: And so, should this individual be investigated and prosecuted?
JA: Should...for leaking? Well, you know, that's a really interesting case...question. I don't believe so, no, because I think if you look at the history of this country, that if we...and Patrick Fitzgerald, by the way, agreed, which is why he didn't go to this point in his investigation. If you say that every time a leaker reveals something that some bureaucrat has thrown a classification sticker on, that that person should be prosecuted, you basically will have a government by press release, and you will eliminate the free flow of information that we depend on to make smart choices in our society. So no, I do not think should prosecute.
HH: Jonathan, are you familiar with what SCI is, Sensitive Compartmented Information?
JA: Yes.
HH: And do you believe that this individual, who leaked this program, had access to SCI?
JA: I simply don't know.
HH: I have to assume he did, because I believe all materials relating to this...I used to be the SCI special assistant to the attorney general, had to be classified SCI. So would you trust this individual to continue to handle SCI information?
JA: No, I wouldn't. I wouldn't. But I think...I can see why from the government's perspective he couldn't be trusted at this point. But I think from, if you're looking it in a larger historical sweep, from...and in the interest of the American people, that if you have somebody...whistle-blowing is extremely important. I know you agree, Hugh. And that if you have somebody in the government who has some pretty good evidence that the president of the United States violated a 1978 law, it's important for him to come forward. And I also think...
He didn't violate the law! He executed his enumerated duties. He is the Commander in Chief, and controls all aspects of the war. This includes intelligence, and how we gather it.
HH: I don't believe that there's any evidence for that, whatsoever, nor could anyone in the possession of this have that.
JA: What do you mean there's no evidence for that? That the FISA law says that you have to go...you can do it retroactively, but you have to go and you have to get court approval from the FISA court.
No you don't. Below is Part One of FISA. I posted this up a couple days ago, and highlighted a portion of it. It's key, and it destroys Alters ridiculous argument.
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
FISA specifically states that they can authorize surveillance "without a court order." He obviously hasn't read FISA, either, in addition to the court cases he hasn't read and researched.
HH: Again, Jonathan, you've got to read the cases. No, you don't.
JA: That's what the law says, Hugh.
HH: I mean, that is not what the law says. You have not read the cases.
JA: You haven't read the statute. 1809...USC 1809. Read it.
HH: Jonathan, In re sealed case is a 2002 decision.
JA: Hugh, read USC 1809. Read that statute.
To Hell with 1809. FISA is right above. Alter has simply no clue what he's arguing about.
HH: Jonathan Alter, in the November 7th issue of Newsweek, you wrote about the seriousness of blowing the cover of CIA operative Valerie Plame. Do you believe that that was more serious that what has happened with the NSA program leak?
JA: Oh, absolutely. Yeah, because that cost...she was what's called non-official cover. The CIA invested millions of dollars in her, and whatever you think of Joe Wilson and Valerie Plame now, I don't think they're covering themselves in glory. It was damaging to the CIA to have that revealed. In this case, this isn't going to prevent us from catching terrorists, you know, this revelation. Hugh, you've got to understand. I'm a hard-liner on terrorism. I don't have any problem with eavesdropping. I want it to be done in a legal way. There's a legal standard that's established for it. You said that there's a court decision here that says...that gives the president standing under the 1978 statute to do this...he didn't claim that.
He may claim to be a "hard-liner" on terrorism, but he doesn't know anything about the Plame affair, either. She was no a non-official cover. She had been back in the states for over five years. Her overseas NOC was expired, and wasn't renewed by Langley. Nevermind the fact that Joe Wilson blew her cover almost a full year before the Novak column, and the fact that they didn't keep this "secret" from the people they knew in the social circles of DC.
HH: No, I didn't. I said that the issue has been specifically reserved to the Supreme Court, and has not been decided, and under this opinion, which is lengthy and complicated, and I'll send it to you. I just want to put that aside, though. I want to get your standard in place, because you think the leak of Valerie Plame is much more serious than the leak of this NSA program.
JA: No, no. I won't say much more serious. I don't want to put a comparative value on it. But there, the damage, if you were looking at damages, you know, to say the way you would in a legal case, I mean we know that all the CIA cut-outs, proprietary fake companies that they created for Valerie Plame, and all the people she dealt with, all that is money down the toilet. All that was wasted. In this case, it's hard to assess the collateral damage. There's nobody...all the commentary in the last few days, nobody has said what damage this story did. The president...
Valerie Plame wasn't the only person who worked for those companies set up by Langley. There were others who worked there, for sure. But the damage that Plames identity came to light is nil compared to the damage created by revealing a top-secret program we were using to track terrorists in this nation. Alter's out on a limb with this, and I'm just sawing away at it.
HH: But Plame's damage is just money? Is that what you're saying? It's just lost money?
JA: No, no. The president asserted that it helps our enemies.
HH: No, the Plame damage. I'm talking about Plame.
JA: No, it was a bad precedent to expose...I mean, I talked to several people who had been in the CIA about this, who are non-political people. They were all upset about this. You know, it's just a bad deal to go around talking about who might, or might not be in the CIA.
I don't suppose he'd be willing to share the names so we can see what they really think about the Plame case; whether his assertion can be corroborated or not? Anyone? Anyone? Bueller? I didn't think so. Look, the burning of a covert operator should never be accepted by anyone. But Plame wasn't an operator. She was a lousy analyst. To Langley, they're a dime a dozen, and just as easily lost to the private sector as they would be laid off. It's nonsense to even address Plame as a national security asset. She wasn't. And she was no operator.
HH: In this same column, you wrote, "'Army General Eric Shinseki preciently says that winning in Iraq will require several hundred thousand troops,' he's sent into early retirement." Are you arguing that Shinseki was sent into early retirement because of this statement?
JA: JA: Oh, there's no question that he was dissed by the Pentagon.
Shinseki and his spokespeople have refuted this calim numerous times. There are no hard feelings at all between Shinseki and the Pentagon. Jonathan, "dissed"? Please, son get a new vocabulary.
HH: But you wrote sent into early retirement. Was he sent into early retirement because of his testimony?
JA: He would have been kept on, yeah. He would have been kept on.
HH: How long? How long would he have been kept on for?
JA: Well, you know, I don't know when his tour ended. But he was...let me tell you something, Hugh, you might not know. When he retired, there's normally...there was a retirement ceremony for him at West Point. Do me a favor. If you're interested in this, talk to the Commandant of West Point. Talk to the officers up at West Point. They felt seriously dissed by the Pentagon. Not only didn't Rumsfeld go, they didn't even send a high-level representative. This was unprecedented for the retirement of somebody at that level.
HH: But you wrote in here that he was sent into early retirement.
JA: They dissed him.
HH: ...suggesting that he was cashiered and fired...
JA: No, he was sent into early retirement. He wasn't fired. But he did not have to retire at the point that he did. If he had been...if they had liked him, they would have found a way to give him another assignment...I don't know, head of NATO...who knows? Something else to do. Instead, they told him you're done.
Shinseki has specifically stated the he wasn't forced into retirement. He was asked if he wanted early retirement. He agreed. They didn't force anything onto him.
HH: Now, I want to go back to why you're concerned about the president doing dictatorial things. You know, on the night of election, and I don't want to cheap shot you...
JA: You're conservative. You should be concerned about it, too, if you're a real conservative.
HH: I don't think he's even remotely close to that. But nevertheless, in 2000, Jonathan, I remember like yesterday, watching you on NBC, urge George Bush to concede the election to Al Gore, right?
JA: No, no. I didn't say that, Hugh. Don't misrepresent what I did. That's just not fair. It's not accurate.
HH: Well, let me read it.
JA: That's not what I said.
HH: "If it turns out that Al Gore wins the popular vote nationally, there will be intense pressure in this country to have him become the president."
JA: Yeah, I said...
HH: Most people think the guy with the most votes wins.
JA: Did that make me say I'm telling George Bush concede? No, I didn't.
HH: No, no. I'm going to keep going here.
JA: So you just paraphrased me incorrectly. I called for a total statewide recount. That was my position.
HH: "Recounts are as much an art as science. The political pressure would mount very quickly to certify Al Gore as the winner, especially since you have a potential conflict of interest, here, with the governor of the state that is handling the recount."
JA: Right.
HH: And then I thought Russert asked you, you mean Gore concede? And you said no, Bush. Didn't you?
JA: No, no. I was talking about...and actually, I was wrong as a prognosticating matter, in thinking that Gore's popular vote victory would cause any political pressure. I was simply flat-out wrong. It didn't. Nobody cared that he won the popular vote.
No, Mr. Alter, because we live in a country where the electoral vote matters more than the popular vote because thet's how we choose the president.
HH: That's what I mean, because that would have been extra-Constitutional. That would have been, actually, unconstitutional, if a...
JA: Right. No, I wasn't suggesting that he should have become president without winning the Electoral College. I was suggesting...and that was a point of confusion there. I wanted, and my position was quite consistent, if you look at what I said in the days following the recount. I thought Gore made a terrible mistake in cherrypicking in counting of counties. They needed a full hand count at the state level, across every county, and let the chips fall where they may.
HH: So you never meant to suggest that Al Gore should be the president, because he won the popular vote?
JA: No, no, no. Absolutely not.
HH: All right. So then, I just wanted to say that didn't...if you had, that wouldn't square with the concern over extra-Constitutionality.
JA: No, no. I know. Absolutely not. That would be unconstitutional.
HH: All right. Let's go back to the dictator stuff, because that's very strong language, Jonathan, and that's what got everyone buzzing here. And I want to read the sentence. "We're seeing clearly now that Bush though 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War." Other than the NSA tap program, what other evidence of dictatorial behavior do you see on George Bush's part?
JA: Let me take you to a story that I broke in late 2001, that got no attention, because there was so much news going on at the time. I'd heard on Capitol Hill that Bush had...the original draft of the Patriot Act, had sought to eliminate habeus corpus. And I couldn't really believe that it was true. And it stunned me. So I called up Jim Sensenbrenner, the Republican chairman of the House Judiciary Committee, and he said yeah, they did, in the panic after 9/11, they actually set up language that for the first time since the American Civil War, repealed the right of habeus corpus. And I said...this is Sensenbrenner talking, I sent it back to Ashcroft, and I said Mr. Attorney General, this won't do. This is a non-starter. Send me a new draft of the Patriot Act, which he did. And which, by the way, I supported. I supported the Patriot Act. I though it was entirely Constitutional. I'm not a crazed lefty who doesn't believe in national security. I want things done, though, according to the law. And in this case, the reason that I'm exercised about this, Hugh, and I think all people, whatever their political persuasion, should be, is that the president's legal standing in his press conference for this...he cited the Constitution, which is an extraordinarily expansive interpretation of the Constitution to say that it gives him the right to have warrantless eavesdropping, in violation of statute. The Constitution, and the Congressional resolution after 9/11, were the two pillars of his legal position. Both of them, according to...you know, basically, any lawyer, Constitutional lawyer you want to talk to, are not supportable. He basically acknowledged that in a larger interest, he though it was okay to violate the law. And that's just not acceptable, and that is dictatorial behavior.
They are supportable. Between the Constitution and the AUMF, the president is required to do whatever it takes to prosecute this war. This is non-negotiable. And Alter still just doesn't get it. Personally, I'd like to check on the bit about Sensenbrenner to see if that is actually true. It would make sense, but then again, habeas corpus applies only to citizens. Foreign nationals not naturalized aren't given that extent of the Constitution.
HH: Okay. Jonathan Alter, I appreciate your appearing. I hope you'll come back. We disagree, and by the way, you've just got to go and read these cases, because you're just wrong. But I appreciate your coming on. We'll talk to you again soon.
And I disagree, as well. The problem that Alter seems to have is he doesn't know what he's talking about. He's not up to speed regarding the precedent and the jurisprudence involved with FISA, or the president's powers during a time of war. I posted up this week that those powers are virtually unlimited. Alter thinks that he has some sort of constraints. In fact, he does. He can't authorize an assassination of a national leader, but he can order the assassination of a terrorist leader. See, Alter is proceeding with the MSM mindset that he knows all, and sees all, and shouldn;t be questioned regarding it. This interview shows me that he's blind, deaf, and dumb when it comes to legal matters like this.
Publius II
posted by Syd And Vaughn | 7:39 PM
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