Llama School

Defending Gore

Jeff Goldstein at Protein Wisdom has decided to address Gore's speech given in DC today on FISA and executive power.  Below, I respond to his post (his comments in blockquotes):

Quickly:  Gore argues that a) “the president ‘repeatedly and persistently’ broke the law by eavesdropping on Americans without court approval”—which is nothing more than an assertion, and assertion meant soley to taint the public’s perception of the program.  Where is the proof of this lawbreaking?  The answer is, there is none—and in fact, the President and Gen Hayden (along with those familiar with the program interviewed by the NYT) have asserted repeatedly that in these kinds of situation (Gore and his ideological fellow travelers frame this as “eavesdropping on American citizens,” while Bush and the administration frame it as “listening in on phone calls eminating from known al Qaeda nodes") FISA warrants were obtained, FISA statutes were deferred to, and fourth amendment and due process obligations met.

Gore makes it clear that he can't prove this accusation definitely, because we aren't certain that any of the mandates of the secret executive order have been carried out.  But if the secret executive order has been instantiated in any way, then the law has been broken.  As Gore said:

At present, we still have much to learn about the NSA's domestic surveillance. What we do know about this pervasive wiretapping virtually compels the conclusion that the President of the United States has been breaking the law repeatedly and persistently.

(By breaking the law, both Gore and I mean disregarding the mandates in FISA.  And yes, you will likely say that is isn't correct based on the AUMF argument.  Putting aside that for the moment, I would argue that the FISA mandates are still law until changed by the legislature or overturned by the judiciary.)

As to the second point in your paragraph, yes, there were times that FISA rules were followed even after the once-secret executive order.  And there were also verly likely times that FISA rules were not followed, based on the once-secret executive order.  Gore (and many of us) are concerned about the legality of the times that those rules weren't followed.

Most interestingly to me, however, is the way the Bushies continue to allow this story to play; the constitutionality of FISA under current conditions is, in my opinion (and following “inherent authority” and separation of powers “precedence” under war-time conditions)—dubious at best, and illegal at worst.  In fact, FISA as it is now being deployed, is a prime example of a separation of powers battle between those who don’t truly believe in coequal branches of government, but would rather see—even in war time—the legislative branch able to control the tactical and strategic aspects of waging war; that is, they wish to have War Powers control over the President that exceeds the budgetary and other powers granted them by the Constitution (unless, that is, say, Clinton/Gore happen to be in power; but again—incidental, I’m sure).

FISA is not "the legislative branch able to control the tactical and strategic aspects of waging war".  This is a case of balancing the right of the government to collect foreign intelligence and the right of the American citizen to privacy.  American citizens have privacy rights (see the 4th amendment).  The executive has the right to gather foreign intelligence.  But the executive doesn't have the right toarbitrarily eavesdrop on citizens.  There must be some sort of cause to allow for eavesdropping on citizens  (which, btw, is substantially lower in the FISA courts than what is necessary in a domestic, criminal investigation).  So a FISA court has to authorize the executive to eavesdrop on an American person.  If there's no FISA restriction, then the executive has unfettered power to violate any citizen's privacy rights by just saying "national security".  My apologies for the basic FISA primer, but it seems to be necessary if you think that FISA is an example of controlling "tactical and strategic aspects of waging war".  Congress isn't moving pieces around on a Risk board, they're balancing the right of the executive to gather intelligence with the right of citizens to privacy.

Forget for the moment that FISA was not, as I’ve pointed out by linking to its legislative history, or citing Carter’s own Griffin Bell, ever meant to constrain NSA foreign intel work, nor to constrain the President’ mandate to protect the country from an internal and potentially imment threat.

FISA has provisions for if we are at war.  And oddly enough, it doesn't say anything like "this statute is totally null and void if we're, like, at war or under threat, existential or internal, or something".  Something to consider during the incessant cries of "OMG!1!!!1  WE ARE AT WAR!!! FISA is teh suck!"

arguing—as did Tom Daschle, in one of the biggest political blunders I can remember—that the Congress never granted the President the military authority, under AUMF, to protect the homeland (say, New York City) after 911, so “concerned” were they that acquiring interecepts of al Qaeda connected calls into and out of the country could, under some very strained and dubious readings of domestic criminal law, be construed as potentially violating the fourth amendent rights of those connected in some way (even accidentally) to al Qaeda.

In short, Daschle reminded us that Congress gave the President the authority to launch hellfire missile from drones at Taliban safehouses, but they it did not give him the authority to listen in on coversations about who might be in those safehouses, should one end of those conversations cross into the US (or, even more ludicrously, cross through US switches).

This is the Democratic argument.

Blunder?  The White House claimed that the AUMF implicity was the statutory authority to put aside certain FISA regulations.  Daschle said that they asked for that ability as part of the AUMF and was denied, thus shooting down a central administration argument that Congress implicitly allowed this.  He called the administration on their weak argument.  And that's a blunder?

Though your point is probably that, by making this point, Daschle is saying that he didn't want to give the President the "authority to listen in on coversations about who might be in those safehouses".  But we have had that ability before the secret executive order, and it's clear that FISA doesn't stop the President from being able to listen to Al Qaeda.  Again, a serious discussion of what is actually gained by loosening FISA restrictions is important (I won't go into it in this post, but previously discussed it here).

Gore further argued that, b) this anti-terrorism program of NSA foreign intel gathering—which has been a staple of US military intel work for decades—is “a threat to the very structure of our government”—a pronouncement that rivals Daschle’s for political tone deafness.

So wait....Gore is saying that parts of foreign intelligence gathering that have been a staple of intel work for decades is "a threat to the very structure of our government"?  Really?  Here is what Gore said:

A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution - our system of checks and balances - was designed with a central purpose of ensuring that it would govern through the rule of law.

It's easy to criticize what Gore didn't say, or even imply.  He obviously was talking about the President deciding to ignore FISA, not about intelligence gathering.  He is clearly not saying that "foreign intel gathering that has to rely on picking up one end of the conversation in the US...is a threat to the very structure of our government".

Gore goes on to contend that “the administration acted without congressional authority and made a ‘direct assault’ on a special federal court that authorizes requests to eavesdrop on Americans”—yet another bit of obfuscation and dishonest misdirection.  The administration’s congressional authority comes from the AUMF, which passed congress

See the Daschle comments, mentioned before re: the AUMF implicit authority argument.  And I'll add some of Gore's comments from the speech:

This argument just does not hold any water. Without getting into the legal intricacies, it faces a number of embarrassing facts. First, another admission by the Attorney General: he concedes that the Administration knew that the NSA project was prohibited by existing law and that they consulted with some members of Congress about changing the statute. Gonzalez says that they were told this probably would not be possible. So how can they now argue that the Authorization for the Use of Military Force somehow implicitly authorized it all along? Second, when the Authorization was being debated, the Administration did in fact seek to have language inserted in it that would have authorized them to use military force domestically - and the Congress did not agree. Senator Ted Stevens and Representative Jim McGovern, among others, made statements during the Authorization debate clearly restating that that Authorization did not operate domestically.

There's some more stuff that I don't have the time to comment on, and then you end with the GOP talking points that try and push the canard that if someone has respect for 4th amendment privacy rights and respects current law that is an attempt to balance the rights of the executive to gather foreign intelligence with the rights of the citizen, they aren't serious about terrorism.  There's nothing further from the truth, but that the current spin that's being pushed by yourself and the GOP.

Does ignoring FISA serve the national interest?

Protein Wisdom has had a slew of posts defending the secret executive order that allows for warrantless wiretapping of communications between U.S. citizens and those overseas.  I decided to respond to part of one of those posts, discussing whether FISA is truly in the "national interest".  (Go here to follow the discussion):

***

I'll take a shot at addressing part of your rebuttal of the MF/AL arguments.  Your comments from an earlier post:

That the admnistration has chosen to engage the hypotheticals—often hysterical and farfetched hypotheticals, I submit—of the programs’ critics seems to me to serve three purposes:

3) to bait the left and civil libertarian absolutists into overplaying their hands by having them suggest forcefully and repeatedly that laws potentionally technically broken in an effort to serve the national interest (defending the homeland) are far more dangerous to the republic than the actions taken to prevent catastrophic attacks by an embedded enemy whose strategy is to manipulate the loopholes in our legal system;

First of all, it's not at all clear that setting aside current FISA regulations "serve(s) the national interest".  One needs to examine if/how the administration is being hindered in intelligence gathering by FISA, and then weigh it against potential losses in American civil liberties.

From what I can see (and if there are other advantages, feel free to comment), putting aside the FISA regulations provided the administration with four potential advantages: less time needed to initiate wiretapping, less legwork necessary by lawyers and others involved in presenting cases to FISA, no need to deal with a judge in case the judge disagrees with the case made for wiretapping, and (related to the last point) the ability to legally listen to any conversations between a US citizen and someone outside of the country (either via targeted listening or through some sort of massive collection/filtering system).

The argument for time and legwork is in some ways combined: it supposedly takes "days, sometimes weeks, to get the application for FISA together", and because of that, it's too burdensome to go through the FISA application process.  However, this is something that can be worked around without having to ditch the FISA standards.  The government can hire more lawyers if the staff preparing FISA applications is overworked, and there's always the 72-hour retroactive time period for eavesdropping.  So the national interest question here is this: Should we allow the executive the ability to listen in on the conversations of American citizens without judicial oversight because it would take more lawyers/legwork to follow FISA regulations?  Most would say no, as the executive's ability to monitor enemy communications is hardly restricted by this limitation.

The third potential advantage is a cruicial one: If a FISA judge decided that a warrant was without merit, then the administration couldn't monitor that person.  If I am gathering this correctly, your argument is that the executive has the right to decide who it wants to listen to, unfettered by the judiciary, as part of the war-making powers of the Constitution (see AUMF).  Opponents of your position would say that U.S. citizens have a 4th amendment right to privacy that can't be crossed solely at whim of the executive.  Hence there's one major reason for the FISA court; to decide whether the executive is acting within its role as one waging war when listening to citizens, and not as one breaking the 4th amendment.

So based on this "advantage" of putting aside FISA regulations, the national security question is the following:  Should we allow the executive the ability to listen in on the conversations of American citizens without judicial oversight because a judge might say no?  Unless there is some reason to think that the FISA court is operating in bad faith, this would be an absurd argument.  If the government can't make the case that monitoring a citizen is for gathering enemy intelligence, then it shouldn't be able to listen to that citizen.  (And again, this is a clear reason for a FISA court: to make sure that the executive is acting in good faith when it listens to American citizens.)

The fourth potential advantage of getting rid of FISA is that the government can use some sort of system that casts a wide net, via some sort of massive wiretapping/data collection/filtering system for tons of calls between American citizens and those overseas. It's unclear how such a system would work, as it could involve some sort of keyword search or maybe involve listening to all calls from certain geographical areas.  Because it's unclear what systems are being utilized, it's a bit more difficult to formulate what the national security question is.  But in any case, it is clear that the bar for "probable cause" that would be involved in bringing a case to FISA would be substantially lower (e.g. we can listen because they said "bomb", or we can listen because they called someone in Riyadh). So here, the national security question is this:  Should we allow the executive the ability to listen in on the conversations of American citizens without judicial oversight based on a standard substantially lower than "probable cause" in the FISA courts.  Or more directly, can the government set aside our 4th amendment rights based on things like keyword searches, where someone is calling, x-degrees of separation from Al Qaeda members, etc.

So it's not at all clear that ignoring FISA regulations is for the national interest.  The administration is still able to monitor enemy communcations within the bounds of FISA.  The government is only limited by FISA when it can't make a case that its monitoring is involved in the war on terror (see advantage #3) or when the standard for allowing eavesdropping (and impinging on citizens' 4th amendment rights) is minimal.

further, the have baited the left into arguing repeatedly that illegally and arrogantly leaking the classified nature of the program—and so destroying its efficacy as a way to protect us (without any concrete proof that laws have been broken)—is somehow more laudable than protecting state secrets that the DoJ, the NSA, the Administration, and the FISA review courts have all held to be within the purview of presidential authority.

First, if the classified program is ok by the FISA review courts, then why would a FISA judge resign after finding out about the secret executive order?  Second, you have no evidence that by leaking the program, the leakers have "destroy(ed) its efficacy as a way to protect us".  Third, if the secret executive order is found to be illegal, this won't be considered as a case of an illegal and arrogant leak; the leakers will rightly be considered as whistleblowers (see my comments here).

The persecuted Black Republican meme

One of the current right-wing memes is that black Republicans are persecuted by Democrats or liberals or the "progressive left", solely for being black and Republican.  This meme has popped up again based on a recent Wall Street Journal editorial by Ted Hayes, a black Republican who runs a homeless shelter in downtown Los Angeles.  He alleges that his landlord is shutting the shelter down because his landlord recently found out he was a black Republican.  It's difficult to tell if the story is true or not, since there are discrepancies on both sides of the story.  Hayes claims that the landlord found out two days before the rent increase that he was a Republican.  However, Hayes was a public Republican, featured in the Wall Street Journal, Fox News, California Republican Party press releases, and on his own webpage well before early December.  The landlord claims that raising the rent has nothing to do with politics, but another worker at the Dome Village also notes the landlord making similar statements about Hayes being a Republican.  It's difficult to say whether Hayes' story has any merit or not, and I'm not about to speculate one way or another.

But what I will do is note how this story fits well into current claims about persecution of black Republicans, and how the claims take bogus and or isolated incidents and try and turn them into a general meme of "Black Republicans are persecuted because Democrats can't engage them on the issues". The claims re: persecution of black Republicans are laid out here in this statement by Ted Hayes:

Yet, there is a segment of American society that chooses not to accept this fundamental freedom. They use a mix of racial manipulations against American Blacks who choose to become part of an opposing political party. One such example of this manipulation is the use of vicious public attacks, especially against prominent Blacks actively participating in the Republican Party.

When a Black Democrat discovers that a fellow Black citizen is indeed Republican, they launch derogatory slurs at them, such as: Uncle Tom; sell-out; idiot, Oreo. It is as though being a Black Republican is anathema!

Some, as in the case of the Honorable Lt. Governor of Maryland, Michael Steele who is a candidate for his State US Senatorial seat, Blacks have shamefully hurled Oreo cookies at him in an attempt to say that he is "Black" (whatever that means) on the outside, but "White" (whatever that means) on the inside.

White and Black Democrats seem to encourage each other to denigrate Blacks who are Republicans without hearing their political beliefs as to whether they are valid or not.

....

It is my opinion that most Black people in the United States are politically and philosophically conservative. Many choose to be "closet" Republicans for fear of persecution from their friends, business or work associates, society clubs, school mates, and even churches, etc.

They are in favor of a strong family, (unless they are on welfare), a strong military, (they more than any 7th generation people of this country know what it is like to live under the whip of tyranny), and finally a strong desire to create their own destiny guided by the equality of the rule of law.

The fear of these "closet" Black Republicans and conservatives is justified when you consider the persecution that they would suffer should they be "found out" or "outed". It is a reverse McCarthyism as perceived by the liberal rewriting of history.

In short, Democrats won't engage black Republicans in a discussion of their beliefs, and instead resort to namecalling and racism because Democratic ideals won't hold up to Republican ideals.  The "evidence" for these claims can be put into two general categories.  The first category includes bogus stories of black Democrats engaging in this kind of rhetoric.

The two biggest stories in support of the "persecuted black Republicans" thesis are the Michael Steele/Oreo story and the Washington Times story entitled "Party trumps race" for Steele foes.  In the Oreo story, Steele and other claimed at Oreos were thrown at Steele sometime around a debate, with one aide saying they were "thick in the air like locusts".  But a deeper examination of the story shows that there is no film evidence of the Oreo incident (even though the event was televised), no evidence of the incident in news reports after the debate, and that the Oreo story only pops up weeks after the incident happened.  The Washington Times story, mentioned approvingly by a series of conservative bloggers was shown to be a partisan hack piece, with the Washington Times even issuing a retraction for one of their misquotes.  Clearly these supposed instances of "persecuted black Republicans" are simply trumped up stories positioned to take advantage of the current persecution angle.  (Also, it's interesting to note that very few bloggers that trumpeted the Oreo story or the Washington Times story even addressed the problems with either story.  If you only read a selection of right-wing blogs, you probably wouldn't know that there were major issues with either story.)

The second category of "evidence" for the "persecuted black Republicans" meme are the actions of a few individuals that do engage in racially tinged rhetoric.  Are these actions bad?  For the most part, yes.  However, when people do engage in this kind of rhetoric, they are quickly rebuked by the Democratic community.  I'll present a few examples.

Steve Gilliard referred to Michael Steele as "Simple Sambo" on his website.  After the post went public, the Maryland Democratic Party immediately denounced Gilliard's statements, saying that Gilliard's depiction of Steele was "extremely offensive and distasteful and has no place in politics or in any other aspect of public discourse".

In a different story, a Daily Kos diarist called Colin Powell an Uncle Tom and was immediately rebuked for using racially tinged terminology. And if the Hayes/landlord story turns out to be true, only the most insane liberal would defend those actions.  It's clear that the vast majority of Democrats/liberals don't support racially tinged name calling.

But this isnt' addressed in right wing blog coverage of these stories, as members of the right-wing blogosphere link note that these actions are the work of "liberals", "Democrats", and the "progressive left".  Now if this kind of behavior is truly supported by the Democratic party, then why do Democrats immediately denounce it when it happens?  Maybe it's because most Democrats and/or liberals are against this kind of behavior.  But that doesn't stop commentators from saying that this kind of behavior is indicative of the core of the Democratic party.

This general strategy (take the actions of extremists and say they reflect a larger group) has also been used against academics (see the publicity for people like Ward Churchill and Kamao Kambon, where they were presented as examples of the true heart of mainstream academia).  This kind of criticism masquerades as some sort of insight into the true nature of liberals/Democrats/academics/etc.  Unfortunately, it should be called out for what it truly is: simplistic stereotyping based on false stories and anecdotal evidence.