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Thursday, December 15, 2005

No, Mom, the Government Isn't Listenin--Umm, I'll Have To Get Back To You

When Dana Priest of the Washington Post first broke the story about the so-called "Black Sites," I noted here that the secret prisons were one of my mom's conspiracy theories that even I didn't believe.

Well, score another one for my mom, courtesy of tomorrow's New York Times. As James Risen and Eric Lichtblau report,

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

I'm not sure what's scarier -- that the NSA has been listening, or that the Administration successfully convinced the Times to hold off on the story for an entire year?!? As the story itself explains:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. [emphasis added.]

Wow. Makes me wonder what we're going to learn about next year. Makes me wonder about that whole free press thing, too... No, newspapers shouldn't publish detailed plans about forthcoming military operations. But when the government conducts a campaign of domestic, internal surveillance that seems lacking for both historical and legal precedent, is it really responsible journalism to not report on that campaign for an entire year? Have we really become the post-Janet-and-Justin Super Bowl halftime show -- time-delayed for our protection?

Hopefully, these are the questions that people will be asking as they wake up to this story Friday morning.

[Update: Hat tip to Orin Kerr, who gets the ball rolling on the legal questions over at the Volokh Conspiracy.]

Posted by Steve Vladeck on December 15, 2005 at 10:56 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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From the New York Times: WASHINGTON, Dec. 15 - Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist ... [Read More]

Tracked on Dec 17, 2005 2:25:51 PM

» President Bush, the National Security Agency, and Surveillance from Concurring Opinions
The New York Times has an in-depth story about how President Bush authorized the National Security Agency (NSA) to engage in surveillance after 9/11: Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to ... [Read More]

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» Bush Admits Eavsdropping from FreedomSight
Bush defends eavesdropFacing angry criticism and challenges in Congress to his authority, President Bush on Saturday unapologetically defended his administration's right to conduct secret post-Sept. 11 spying in the U.S. as "critical to saving American... [Read More]

Tracked on Dec 18, 2005 1:20:10 PM


I see, since the terrorists hate us for our freedom, Bush is merely trying to make us safer by curtailing that freedom. WTF?

Jeff writes: I think we have to put Watergate behind us and trust the Feds to do the right thing.

Consider: Iraq, Katrina, Harriet Myers, Torture, etc. Can you think of one thing that this admin has done right? Why do you think the first person they picked to head the 9/11 commission was Kissinger? Because they wanted to get the truth? OMG.

If the goal of terrorists is to destroy American democracy they are succeeding magnificently. A small group of fanatics with box cutters get lucky and out go the checks and balances - and the President becomes a dictator who doesn't have to follow the law.

I suspect there is a lot more going on that we haven't been told about. Do you feel safer? The failure to thwart 9/11 was not due to any "legal niceties"; it was due to incompetence.

Of course we will have fascism in America but we will call it democracy!
- Huey Long

Question, why do you think the White House was adamant about those NSA intercepts that became an issue during the Bolton hearings?

Antonin Scalia’s dissent in Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004):

The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal. In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime.

Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U. S. Const., Art. 1, §8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II.

As Hamilton explained, the President's military authority would be "much inferior" to that of the British King:

"It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.

Posted by: a-train | Dec 18, 2005 2:41:36 PM

I love civil liberties, but sometimes concessions need be made. Where is the harm, when talking about EVIDENTIARY value here, to which these secret authorizations add nothing. Tap my line, ping my laptop to stop an attack, but it won't do crap to build a case. Conceit and paranoia lead an average Joe to think Big Brother is watching him. The Eyes of TJ Eckleburg? Sometimes a billboard is just a billboard.

Posted by: matty | Dec 17, 2005 12:38:31 PM

Although I am not well versed with "terrorist" policies or goals, this appears to be a victory for them in the "war on democracy". As Jeff V. points out, "loosening the reigns" may have possible benefits, but in a cost-benefit analysis, I do not think this cost outweighs ANY possible benefit. I was initially not sure if I was angry or suprised at this news, but when I carefully look at the past few years, it dawned on me that I was not suprised.........then I was sad. Kudos to your mother Steve, foresight is so much more impressive than hindsight.

Posted by: C.M. | Dec 16, 2005 1:31:21 AM

Wait a second -- it's not a straight line from "I am concerned that the government is resorting to unprecedented counterintelligence measures that may indeed be unconstitutional" to "I'm not scared of a nuclear bomb going off in a major U.S. city," and to the extent that you seem to think it is, I'm not quite sure how to respond.

Do I think that the government should do everything within its lawful authority to counterdict terrorism? Absolutely. Do I think that the government should do anything it can? Well, what is it, exactly, that we're fighting for, if not the constitutional values and protections that this kind of government action may well infringe upon?

Call me what you will, but, although I'm a nervous New Yorker, I'm still with the Supreme Court in U.S. v. Robel: "It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile."

Posted by: Steve Vladeck | Dec 16, 2005 12:23:06 AM

Oooh, I do wonder how this fit in with the election. Do I have faith in the Feds? Yes. I don't think Bush and Cheney have made great foreign policy decisions. But I think that loosening the reigns on the NSA, FBI, and CIA will pose less of a danger to the US than leaving them tied down by like Gulliver by hundreds of legal niceties. The FBI did some bad things back in the day. But none of them involved killing 3,000 people. And if you aren't scared of a nuclear bomb going off in a major US city, then you just don't know crap about national security.

Posted by: Jeff V. | Dec 15, 2005 11:59:40 PM

So here's the next question: _When_, one year ago, did the Times hold off on the story -- before or after the election?

Posted by: Steve Vladeck | Dec 15, 2005 11:42:29 PM

Jeff -- Your point on the risks of publishing this article is well-taken. But, especially recently, are you convinced that, given the Administration's track record, we should have faith that the Feds will do the "right" thing?

Posted by: Steve Vladeck | Dec 15, 2005 11:10:49 PM

This might not go over well, but I think that the NYT should have never published this article. If this program was as secretive as the article suggests, exposing it might have done some real damage to the country's security. I understand that the NYT is worried about government gone amok, but I think we have to put Watergate behind us and trust the Feds to do the right thing.

Posted by: Jeff V. | Dec 15, 2005 11:03:55 PM

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