Open Topic Sunday ... The Times Swings And Whiffs Again.

The New York Times seems to be taking an awful lot of heat from the blogosphere lately. At the beginning of the month, Bill Keller defended the Times in their reporting of the NSA terrorist surveillance program. Then, they step up to the plate and stand by their defense of Abu Musab al-Zarqawi. Then, this week, on the heels of the USA Today story about another NSA program, the op-ed editors put together a blindingly stupid piece giving their reaction to the USA Today story.

Then we have this one today (link up in the title). Like a pair of Sith Lords, Darth Rove and Darth Cheney continue to be a thorn in the side of the Left in America. This time, the Times has decided to cross sabers with Darth Cheney:

In the weeks after the Sept. 11 attacks, Vice President Dick Cheney and his top legal adviser argued that the National Security Agency should intercept purely domestic telephone calls and e-mail messages without warrants in the hunt for terrorists, according to two senior intelligence officials.
But N.S.A. lawyers, trained in the agency's strict rules against domestic spying and reluctant to approve any eavesdropping without warrants, insisted that it should be limited to communications into and out of the country, said the officials, who were granted anonymity to discuss the debate inside the Bush administration late in 2001.

I do not know the thoughts of our readers regarding anonymous sources, but I am getting sick of seeing them cited in these sorts of stories. Furthermore, the NSA lawyers seem to have been going off of the previous laws dictating such measures. The Patriot Act expanded the scope of such intelligence efforts. After 9/11, we knew that our enemy had been in this country for an extended period of time, and had traveled from the US to points abroad, and back again. They were here, and because of that glaring fact, I do not see why anyone would be reluctant to locate any further terrorist cells operating out of the United States with intent to hurt the nation.

The N.S.A.'s position ultimately prevailed. But just how Gen. Michael V. Hayden, the director of the agency at the time, designed the program, persuaded wary N.S.A. officers to accept it and sold the White House on its limits is not yet clear.

As the program's overseer and chief salesman, General Hayden is certain to face questions about his role when he appears at a Senate hearing next week on his nomination as director of the Central Intelligence Agency. Criticism of the surveillance program, which some lawmakers say is illegal, flared again this week with the disclosure that the N.S.A. had collected the phone records of millions of Americans in an effort to track terrorism suspects.

Ah, now we see the target of this hit-piece is not Vice President Cheney, but rather Michael Hayden. In an effort to gin up opposition to his confirmation as the new Director of Central Intelligence (DCI). We already know there are going to be questions presented to him by the Senate Intelligence Committee regarding this program, and the Times is trying to really pound on him before his hearings even begin.

By several accounts, including those of the two officials, General Hayden, a 61-year-old Air Force officer who left the agency last year to become principal deputy director of national intelligence, was the man in the middle as President Bush demanded that intelligence agencies act urgently to stop future attacks.

On one side was a strong-willed vice president and his longtime legal adviser, David S. Addington, who believed that the Constitution permitted spy agencies to take sweeping measures to defend the country. Later, Mr. Cheney would personally arrange tightly controlled briefings on the program for select members of Congress.

The Constitution does indeed give the government a certain lattitude when it comes to surveillance and spying. The Fourth Amendment protects us against "unreasonable searches and seizures." What, in the Times opinion, is considered a reasonable search? With a warrant, and our enemies are just supposed to lie down and wait for us to show up with one? Please. The Times needs to join the rest of the real world here on planet Earth. Our enemies are not walking around identifying themselves to everyone. Locating them in this country is not an easy task. In this war, we had to scrap the old rule book, and come up with a new one to fight our enemies. Working in the shadows and tracking them down using methods they were not privy to was what the NSA did under the direction of General Michael Hayden.

On the other side were some lawyers and officials at the largest American intelligence agency, which was battered by eavesdropping scandals in the 1970's and has since wielded its powerful technology with extreme care to avoid accusations of spying on Americans.

In case the Times missed this, the tin-foil hat crowd is constantly accusing the government of spying on Americans. They are conspiracy nuts born in the day and age of JFK's assassination, and the seemingly obvious cover-up revolving around that whole situation. But with the Vietnam War raging under Johnson, and the Watergate scandal under Nixon, America became very jaded to the intelligence services of this nation. The Church Committee hearings helped Carter ravage and handcuff the intelligence community.

As in other areas of intelligence collection, including interrogation methods for terrorism suspects, Mr. Cheney and Mr. Addington took an aggressive view of what was permissible under the Constitution, the two intelligence officials said.

If people suspected of links to Al Qaeda made calls inside the United States, the vice president and Mr. Addington thought eavesdropping without warrants "could be done and should be done," one of them said.

He added: "That's not what the N.S.A. lawyers think."

That is because, I am sure at some level, the NSA lawyers were misinterpreting the Constitution. See, our enemies are not citizens of America. They snuck in here, and laid low until they received their instructions to strike. As they are not citizens, they do not possess any sort of Constitutional protection. This is the same argument that could be made against the illegal aliens in the country right now, and it would crush the advocates screaming for equal treatment. No such treatment exists for a non-citizen under the proper interpretation of the Constitution.

The other official said there was "a very healthy debate" over the issue. The vice president's staff was "pushing and pushing, and it was up to the N.S.A. lawyers to draw a line and say absolutely not."

Both officials said they were speaking about the internal discussions because of the significant national security and civil liberty issues involved and because they thought it was important for citizens to understand the interplay between Mr. Cheney's office and the N.S.A. Both spoke favorably of General Hayden; one expressed no view on his nomination for the C.I.A. job, and the other was interviewed by The New York Times weeks before President Bush selected the general.

I fail to see a civil liberties issue at all. As yet, neither the Times or the USA Today has presented solid, hard-core proof that any Americans ended up being targeted by the terrorist surveillance program. Furthermore, the "new" program (I use "new" this way because this program, we believe, was alluded to in the original Times report in December, but never identified) violates no laws in the US. The legal precedent backing this claim up is Smith v. Maryland where the Supreme Court ruled that pen registers were not considered an "invasion of privacy." That is what this "new" NSA program basically is.

Mr. Cheney's spokeswoman, Lee Anne McBride, declined to discuss the deliberations about the classified program. "As the administration, including the vice president, has said, this is terrorist surveillance, not domestic surveillance," she said. "The vice president has explained this wartime measure is limited in scope and conducted in a lawful way that safeguards our civil liberties."

Representatives for the N.S.A. and for the general declined to comment.

Even with the N.S.A. lawyers' reported success in limiting its scope, the program represents a fundamental expansion of the agency's practices, one that critics say is illegal. For the first time since 1978, when the Foreign Intelligence Surveillance Act was passed and began requiring court approval for all eavesdropping on United States soil, the N.S.A. is intentionally listening in on Americans' calls without warrants.

And I see that the times still has employed no lawyer to look over articles like this that make broad-scope connotations and inflections that what is going on is illegal. Yet, Sealed Case states that it is quite legal. They cite the expansion of intelligence powers under the Patriot Act, and even take the FISA court to task for reinstituting measures that the Patriot Act superceded.

The spying that would become such a divisive issue for the White House and for General Hayden grew out of a meeting days after the Sept. 11 attacks, when President Bush gathered his senior intelligence aides to brainstorm about ways to head off another attack.

"Is there anything more we could be doing, given the current laws?" the president later recalled asking.

General Hayden stepped forward. "There is," he said, according to Mr. Bush's recounting of the conversation in March during a town-hall-style meeting in Cleveland.

By all accounts, General Hayden was the principal architect of the plan. He saw the opportunity to use the N.S.A.'s enormous technological capabilities by loosening restrictions on the agency's operations inside the United States.

For his part, Mr. Cheney helped justify the program with an expansive theory of presidential power, which he explained to traveling reporters a few days after The Times first reported on the program last December.

Mr. Cheney traced his views to his service as chief of staff to President Gerald R. Ford in the 1970's, when post-Watergate changes, which included the FISA law, "served to erode the authority I think the president needs to be effective, especially in a national security area."

Senior intelligence officials outside the N.S.A. who discussed the matter in late 2001 with General Hayden said he accepted the White House and Justice Department argument that the president, as commander in chief, had the authority to approve such eavesdropping on international calls.

BINGO! Under Article II of the Constitution, the president is the "Commander in Chief," and by being so he is charged with protecting the nation against any and all threats--foreign or domestic. If he feels that there is a threat the nation, he may act accordingly within the constraints of his authority. It is literally that simple. The president's powers have never been curtailed by any court, and even the Supreme Court has stated (in numerous cases revolving around this same issue) that they are reluctant to encroach upon that territory.

"Hayden was no cowboy on this," said another former intelligence official who was granted anonymity because it was the only way he would talk about a program that remains classified. "He was a stickler for staying within the framework laid out and making sure it was legal, and I think he believed that it was."

The official said General Hayden appeared particularly concerned about ensuring that one end of each conversation was outside the United States. For his employees at the N.S.A., whose mission is foreign intelligence, avoiding purely domestic eavesdropping appears to have been crucial.

But critics of the program say the law does not allow spying on a caller in the United States without a warrant, period — no matter whether the call is domestic or international.

The critics are wrong because they are voicing their opinion from a standpoint that if you are in the US, you have the protections of the Constitution, and that is far from the truth. You must be a citizen. The Fourteenth Amendment explicitly lays the framework for what is and is not a citizen. Now, yes, if there is a terrorist suspect in the nation who is a citizen, then the appropriate steps must be taken. (That is, unless we know he is planning to blow up LAX this coming Monday. If that is the case, i.e., a matter of immediate importance, then you go and arrest him.)

"Both would violate FISA," said Nancy Libin, staff counsel at the Center for Democracy and Technology, a civil liberties group.

Under the original FISA standards, yes. But she fails to take into account the Patriot Act, which amended the FISA guidelines, and she fails to also note that NOTHING--no law, no act of Congress--can supercede the Constitution. That includes the powers of the president.

Ms. Libin said limiting the intercepts without warrants to international calls "may have been a political calculation, because it sounds more reassuring."

One indication that the restriction to international communications was dictated by more than legal considerations came at a House hearing last month. Asked whether the president had the authority to order eavesdropping without a warrant on purely domestic communications, Attorney General Alberto R. Gonzales replied, "I'm not going to rule it out."

Despite the decision to focus on only international calls and e-mail messages, some domestic traffic was inadvertently picked up because of difficulties posed by cellphone and e-mail technology in determining whether a person was on American soil, as The Times reported last year.

Here is the New York Times original story from December. There is no mention--count them: NONE--of any inadvertent surveillance of American citizens. There are a few mentions of the fact that some surveillance was done within the confines of our borders, but nothing they stated in that piece brings up any "mistakes" made in who was targeted. The Times just got caught in a lie. Point of fact, this whole paragraph is a lie.

And one government official, who had access to intelligence from the intercepts that he said he would discuss only if granted anonymity, believes that some of the purely domestic eavesdropping in the program's early phase was intentional. No other officials have made that claim.

A White House spokeswoman, Dana Perino, said Saturday, "N.S.A. has not intentionally listened in on domestic-to-domestic calls without a court order."

President Bush and other officials have denied that the program monitors domestic calls. They have, however, generally stated their comments in the present tense, leaving open the question of whether domestic calls may have been captured before the program's rules were fully established.
After the program started, General Hayden was the one who briefed members of Congress on it and who later tried to dissuade The Times from reporting its existence.

When the newspaper published its first article on the program in December, the general found himself on the defensive. He had often insisted in interviews and public testimony that the N.S.A. always followed laws protecting Americans' privacy. As the program's disclosure provoked an outcry, he had to square those assurances with the fact that the program sidestepped the FISA statute.

Nonetheless, General Hayden took on a prominent role in explaining and defending the program. He appeared at the White House alongside Mr. Gonzales, spoke on television and gave an impassioned speech at the National Press Club in January.

Some of the program's critics have found his visibility in defending a controversial presidential policy inappropriate for an intelligence professional. "There's some unhappiness at N.S.A. with Hayden taking such an upfront role," said Matthew M. Aid, an intelligence historian and former N.S.A. analyst who keeps in touch with some employees. "If the White House got them into this, why is Hayden the one taking the flak?"

But General Hayden seems determined to stand up for the agency's conduct — and his own. In the press club speech, General Hayden recounted remarks he made to N.S.A. employees two days after the Sept. 11 attacks: "We are going to keep America free by making Americans feel safe again."
He said that the standards for what represented a "reasonable" intrusion into Americans' privacy had changed "as smoke billowed from two American cities and a Pennsylvania farm field."

"We acted accordingly," he said.

In the speech, General Hayden hinted at the internal discussion of the proper limits of the N.S.A. program. Although he did not mention Mr. Cheney or his staff, he said the decision to limit the eavesdropping to international phone calls and e-mail messages was "one of the decisions that had been made collectively."

"Certainly, I personally support it," General Hayden said.

The Times misled its readers into assuming this piece was about Dick Cheney. It was not. Then they kept switching back and forth over the NSA program, and beating up Michael Hayden. The only thing this story does is confirm for us that the New York Times has a bias against making sure we stay safe. This is more of a defense for them breaking the story than anything else, and serves no real purpose than to fill up page space.

And, of course, they made a serious mistake in lying in this story. This was not an "oops, we made a mistake, and a correction will be posted tomorrow." No, this was an outright lie, and they had the stupidity to cite their original story. A quick reread of the story showed that they got caught. They were caught red-handed trying to push something that was not in their original story in a blatant attempt to spin this program even further than they already have.

It is disgusting to see a major US news outlet doing this. I am all for an open and honest debate of the issues, and a firm believer int he First Amendment. But there comes a time when a line must be drawn. The problem is the MSM walked over that line years ago.

The Bunny ;)