The Times Tanks And Misses
Yesterday Marcie jumped on this editorial from the New York Times. So did John Hinderaker. The editorial was clearly a "jump the shark" moment for the Times as their "legal eagles" on the editorial board still don't understand the simple fact that FISA can't contravene or supercede the powers of the president as enumerated under Article II. Today, Debbie Burlingame, a former attorney, and the sister of Charles Burlingame--the pilot on AA Flight 77 that was crashed into the Pentagon--weighs in on the subject. Below is an excerpt, and the emphasis is mine.
Furthermore, it was the impenetrable FISA guidelines and fear of provoking the FISA court's wrath if they were transgressed that discouraged risk-averse FBI supervisors from applying for a FISA search warrant in the Zacarias Moussaoui case. The search, finally conducted on the afternoon of 9/11, produced names and phone numbers of people in the thick of the 9/11 plot, so many fertile clues that investigators believe that at least one airplane, if not all four, could have been saved.
In 2002, FISA's appellate level Court of Review examined the entire statutory scheme for issuing warrants in national security investigations and declared the "wall" a nonsensical piece of legal overkill, based neither on express statutory language nor reasonable interpretation of the FISA statute. The lower court's attempt to micromanage the execution of national security warrants was deemed an assertion of authority which neither Congress or the Constitution granted it. In other words, those lawyers and judges who created, implemented and so assiduously enforced the FISA guidelines were wrong and the American people paid dearly for it.
Despite this history, some members of Congress contend that this process-heavy court is agile enough to rule on quickly needed National Security Agency (NSA) electronic surveillance warrants. This is a dubious claim. Getting a FISA warrant requires a multistep review involving several lawyers at different offices within the Department of Justice. It can take days, weeks, even months if there is a legal dispute between the principals. "Emergency" 72-hour intercepts require sign-offs by NSA lawyers and pre-approval by the attorney general before surveillance can be initiated. Clearly, this is not conducive to what Gen. Michael Hayden, principal deputy director of national intelligence, calls "hot pursuit" of al Qaeda conversations.
The Senate will soon convene hearings on renewal of the Patriot Act and the NSA terrorist surveillance program. A minority of senators want to gamble with American lives and "fix" national security laws, which they can't show are broken. They seek to eliminate or weaken anti-terrorism measures which take into account that the Cold War and its slow-moving, analog world of landlines and stationary targets is gone. The threat we face today is a completely new paradigm of global terrorist networks operating in a high-velocity digital age using the Web and fiber-optic technology. After four-and-a-half years without another terrorist attack, these senators think we're safe enough to cave in to the same civil liberties lobby that supported that deadly FISA wall in the first place. What if they, like those lawyers and judges, are simply wrong?
Meanwhile, the media, mouthing phrases like "Article II authority," "separation of powers" and "right to privacy," are presenting the issues as if politics have nothing to do with what is driving the subject matter and its coverage. They want us to forget four years of relentless "connect-the-dots" reporting about the missed chances that "could have prevented 9/11." They have discounted the relevance of references to the two 9/11 hijackers who lived in San Diego. But not too long ago, the media itself reported that phone records revealed that five or six of the hijackers made extensive calls overseas.
NBC News aired an "exclusive" story in 2004 that dramatically recounted how al-Hazmi and al-Mihdhar, the San Diego terrorists who would later hijack American Airlines flight 77 and fly it into the Pentagon, received more than a dozen calls from an al Qaeda "switchboard" inside Yemen where al-Mihdhar's brother-in-law lived. The house received calls from Osama Bin Laden and relayed them to operatives around the world. Senior correspondent Lisa Myers told the shocking story of how, "The NSA had the actual phone number in the United States that the switchboard was calling, but didn't deploy that equipment, fearing it would be accused of domestic spying." Back then, the NBC script didn't describe it as "spying on Americans." Instead, it was called one of the "missed opportunities that could have saved 3,000 lives."
The media is quick to jump on the "civil liberties" bandwagon when any perceived misstep occurs. Thank God we have laws, judges, and lawyers that understand the Constitutional authority granted to the president better than those on the NY Times editorial board. As a matter of fact, Mr. Hinderacker does an outstanding job bringing up the key cases that supports the president's use of such authority.
When lawyers make technical legal arguments, we generally cite case law. Like, for example, United States v. Clay, 430 F.2d 165 (5th Cir. 1970), in which the court held that federal statutes prohibiting wiretapping do not "[forbid] he President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest." That seems obviously pertinent; what does the Times have to say about the Clay case? Nothing. It doesn't mention it.
Another relevant case is United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), where the court held that no judicial warrant was necessary where "surveillances ... were 'conducted and maintained solely for the purpose of gathering foreign intelligence information.'” Butenko blows a giant hole in the Times' legal theory. What does the Times have to say about the Butenko case? Nothing. It doesn't mention it.
Then there's United States v. Truong, 629 F.2d 908 (4th Cir. 1980), where the court sustained the federal government's position, which it summarized as follows:
"In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.
The court explained why the President has the inherent constitutional authority to order warrantless electronic surveillance:"
For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)],
“unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations."
United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984), was a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA). The court wrote:
"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."
A damning summary. Surely the Times has a rejoinder to the court's statement that the universal weight of authority is against the paper's position? Nope...
It's not hard to figure out why the Times editorialists pretend that Sealed Case No 02-001 doesn't exist. It conclusively refutes their legal position:
"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. ... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."
So the only federal appellate court that has ruled on the issue says that the New York Times is wrong about the law. The Times, ostrich-like, pretends that the federal courts don't exist.
And this is because the Times thinks that it knows all, and what it prints and says is Gospel truth. That's not the case. John cited six cases above that the president has the authority. Don't take his word for it; take the courts' collective word on the subject. They have upheld the powers of the president in case after case. The "ostrich-like" times continues to deny that these cases mean anything. In fact, they act much like the Democrats are right now; that history began only 60 short days ago, and nothing before their revelation of a classified program is relevant to the debate.
Au contraire. These cases are extremely RELEVANT. And here's a question for the Times in regard to their stance on precedent. When it comes to abortion, you stand beside precedent, and shout from the mountaintops that it maintains "the law of the land," yet you refuse to accept precedent when it upholds the powers of the president. Why? The courts are universal. Their job is to interpret ALL law. If it's good for the positions that you support, why is it that the editorial staff refuses to acknowledge the same weight of precedent on issues the Times are against?
Publius II
Yesterday Marcie jumped on this editorial from the New York Times. So did John Hinderaker. The editorial was clearly a "jump the shark" moment for the Times as their "legal eagles" on the editorial board still don't understand the simple fact that FISA can't contravene or supercede the powers of the president as enumerated under Article II. Today, Debbie Burlingame, a former attorney, and the sister of Charles Burlingame--the pilot on AA Flight 77 that was crashed into the Pentagon--weighs in on the subject. Below is an excerpt, and the emphasis is mine.
Furthermore, it was the impenetrable FISA guidelines and fear of provoking the FISA court's wrath if they were transgressed that discouraged risk-averse FBI supervisors from applying for a FISA search warrant in the Zacarias Moussaoui case. The search, finally conducted on the afternoon of 9/11, produced names and phone numbers of people in the thick of the 9/11 plot, so many fertile clues that investigators believe that at least one airplane, if not all four, could have been saved.
In 2002, FISA's appellate level Court of Review examined the entire statutory scheme for issuing warrants in national security investigations and declared the "wall" a nonsensical piece of legal overkill, based neither on express statutory language nor reasonable interpretation of the FISA statute. The lower court's attempt to micromanage the execution of national security warrants was deemed an assertion of authority which neither Congress or the Constitution granted it. In other words, those lawyers and judges who created, implemented and so assiduously enforced the FISA guidelines were wrong and the American people paid dearly for it.
Despite this history, some members of Congress contend that this process-heavy court is agile enough to rule on quickly needed National Security Agency (NSA) electronic surveillance warrants. This is a dubious claim. Getting a FISA warrant requires a multistep review involving several lawyers at different offices within the Department of Justice. It can take days, weeks, even months if there is a legal dispute between the principals. "Emergency" 72-hour intercepts require sign-offs by NSA lawyers and pre-approval by the attorney general before surveillance can be initiated. Clearly, this is not conducive to what Gen. Michael Hayden, principal deputy director of national intelligence, calls "hot pursuit" of al Qaeda conversations.
The Senate will soon convene hearings on renewal of the Patriot Act and the NSA terrorist surveillance program. A minority of senators want to gamble with American lives and "fix" national security laws, which they can't show are broken. They seek to eliminate or weaken anti-terrorism measures which take into account that the Cold War and its slow-moving, analog world of landlines and stationary targets is gone. The threat we face today is a completely new paradigm of global terrorist networks operating in a high-velocity digital age using the Web and fiber-optic technology. After four-and-a-half years without another terrorist attack, these senators think we're safe enough to cave in to the same civil liberties lobby that supported that deadly FISA wall in the first place. What if they, like those lawyers and judges, are simply wrong?
Meanwhile, the media, mouthing phrases like "Article II authority," "separation of powers" and "right to privacy," are presenting the issues as if politics have nothing to do with what is driving the subject matter and its coverage. They want us to forget four years of relentless "connect-the-dots" reporting about the missed chances that "could have prevented 9/11." They have discounted the relevance of references to the two 9/11 hijackers who lived in San Diego. But not too long ago, the media itself reported that phone records revealed that five or six of the hijackers made extensive calls overseas.
NBC News aired an "exclusive" story in 2004 that dramatically recounted how al-Hazmi and al-Mihdhar, the San Diego terrorists who would later hijack American Airlines flight 77 and fly it into the Pentagon, received more than a dozen calls from an al Qaeda "switchboard" inside Yemen where al-Mihdhar's brother-in-law lived. The house received calls from Osama Bin Laden and relayed them to operatives around the world. Senior correspondent Lisa Myers told the shocking story of how, "The NSA had the actual phone number in the United States that the switchboard was calling, but didn't deploy that equipment, fearing it would be accused of domestic spying." Back then, the NBC script didn't describe it as "spying on Americans." Instead, it was called one of the "missed opportunities that could have saved 3,000 lives."
The media is quick to jump on the "civil liberties" bandwagon when any perceived misstep occurs. Thank God we have laws, judges, and lawyers that understand the Constitutional authority granted to the president better than those on the NY Times editorial board. As a matter of fact, Mr. Hinderacker does an outstanding job bringing up the key cases that supports the president's use of such authority.
When lawyers make technical legal arguments, we generally cite case law. Like, for example, United States v. Clay, 430 F.2d 165 (5th Cir. 1970), in which the court held that federal statutes prohibiting wiretapping do not "[forbid] he President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest." That seems obviously pertinent; what does the Times have to say about the Clay case? Nothing. It doesn't mention it.
Another relevant case is United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), where the court held that no judicial warrant was necessary where "surveillances ... were 'conducted and maintained solely for the purpose of gathering foreign intelligence information.'” Butenko blows a giant hole in the Times' legal theory. What does the Times have to say about the Butenko case? Nothing. It doesn't mention it.
Then there's United States v. Truong, 629 F.2d 908 (4th Cir. 1980), where the court sustained the federal government's position, which it summarized as follows:
"In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.
The court explained why the President has the inherent constitutional authority to order warrantless electronic surveillance:"
For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)],
“unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations."
United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984), was a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA). The court wrote:
"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."
A damning summary. Surely the Times has a rejoinder to the court's statement that the universal weight of authority is against the paper's position? Nope...
It's not hard to figure out why the Times editorialists pretend that Sealed Case No 02-001 doesn't exist. It conclusively refutes their legal position:
"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. ... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."
So the only federal appellate court that has ruled on the issue says that the New York Times is wrong about the law. The Times, ostrich-like, pretends that the federal courts don't exist.
And this is because the Times thinks that it knows all, and what it prints and says is Gospel truth. That's not the case. John cited six cases above that the president has the authority. Don't take his word for it; take the courts' collective word on the subject. They have upheld the powers of the president in case after case. The "ostrich-like" times continues to deny that these cases mean anything. In fact, they act much like the Democrats are right now; that history began only 60 short days ago, and nothing before their revelation of a classified program is relevant to the debate.
Au contraire. These cases are extremely RELEVANT. And here's a question for the Times in regard to their stance on precedent. When it comes to abortion, you stand beside precedent, and shout from the mountaintops that it maintains "the law of the land," yet you refuse to accept precedent when it upholds the powers of the president. Why? The courts are universal. Their job is to interpret ALL law. If it's good for the positions that you support, why is it that the editorial staff refuses to acknowledge the same weight of precedent on issues the Times are against?
Publius II
posted by Syd And Vaughn | 12:53 PM
0 Comments:
Post a Comment
<< Home