Dec 30 2005
NSA Leak Not Whistleblowing
A gentleman on FoxNews (Brit Hume’s show) made the obvious point that the NSA story is not a case of whistleblowing because there was nothing being done wrong and nothing was being hidden. FISA and Congress knew of the program and were kept up to date. The NSA is not illegal. So there can be no whistleblowing (not to mention there is whistleblowing path that doesn’t include the press).
The guy also pointed out why FISA could not be used for the FBI. If NSA heard Bin Laden talking to Atta in NY, the New York side of the discussion would have to be deleted and never given to the FBI!
That is why FISA is broken folks. That is the Gorelick Wall, what the FISC tried to keep in place even after 9-11, being forced to change their dangerous ways by the one time in history the FISA Review Court was invoked to straighten out the FISA Court itself.
The impeachment calls are going to really backfire on this one!
UDPATE:
Our reader Snapple has ID’d the person in a comment on another post as Ron Kessler.
Ron Kessler said that it was Bush himself who went through the “whistleblowing process” when he consulted with an Intelligence committee and talked to the inspector general (?).
I may have the institutions he went to a bit wrong.
I guess someone didn’t notice that Bush was blowing the whistle on himself.
This canard is the latest lapse in critical thinking by the MSM. It is so accustomed to thinking in sound bites that it is no longer able to follow a logical train of thought. The ability of its “journalists” to think critically has atrophied.
Another interesting dysfuctionality of our philosopher-watchdogs is the collapse of time reference. All things bad started with Bush; therefore, Bush is to blame for all things bad. The fact that the NSA has operated for more than a half century, or that FISA has operated for neasrly 30 years under presidencies of both parties makes no difference. All things bad started with Bush, so the timeline of evil coincides with the day he took office.
Combining loss of critical thinking with distortion of time reference produces a class of journalist with no understanding of historical processes or of ethics. It is no surprise that today’s reporters don’t remember Clinton’s domestic surveillance, or NSA’s responsibilities,
or the fact that FISA pretty much allowed the intelligence community great lattitude in surveillance before Clinton appointees showed up n the court. If you don’t remember who gave Web Hubbell a pass, you’re not going to remember when all those FISA warrant modifications began appearing, either.
This is a recent article by Ron Kessler on the NSA issue. You can check out his website, too.
http://www.ronaldkessler.com/pages/5/index.htm
Ever since 9/11, the media and congressional critics have waged a relentless battle against President Bush for not doing enough to prevent the terrorist attacks. Now these same critics have begun a campaign against the Bush administration for doing too much to prevent the next attack. …
In proposing FISA to Congress in 1978, the Carter administration specifically stated that passage of the new law would not necessarily preclude the president from “using his powers granted under the Constitution to carry out foreign policy and intelligence activities,” according to Griffin B. Bell, the attorney general when the law was drafted and enacted. There was a “tacit agreement that FISA was not intended to displace the president’s authority,” Mr. Bell told me earlier this week.
Citing that authority, the Bush administration disclosed the NSA intercept program at its inception to congressional leaders, the FISA court and NSA’s inspector general [that is the whistle blowing proceedure]. In addition, Mr. Bush set up a Justice Department review process, which retroactively examines the intercepts to ensure that the program is being carried out according to the terms of the president’s authorization. Yet some of those same congressional leaders who were briefed on the program, like SEN. HARRY REID, now castigate the president for disregarding the Constitution….
What people do not understand about George Bush is that he is not interested in short-term popularity or media approval. Given a choice between avoiding the wrath of the media and congressional critics and preventing an attack that could kill millions, this president will take the latter course every time.
This article “FISA vs. the Constitution” by Robert Turner, a law professor at UVA, says that Congress can’t usurp the president’s power to spy on America’s enemies. [AJ’s argument]
http://www.opinionjournal.com/editorial/feature.html?id=110007734
For nearly 200 years it was understood by all three branches that intelligence collection–especially in wartime–was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of “executive power” to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947……..the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line…..while the Carter administration asked Congress to enact the FISA statute in 1978, Attorney General Griffin Bell emphasized that the law “does not take away the power of the president under the Constitution.” And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: “Our seeking legislation in no way should suggest that we do not believe we have inherent authority” under the Constitution. “We do,” she concluded….
The Supreme Court in the 1972 “Keith case” held that a warrant was required for national security wiretaps involving purely domestic targets, but expressly distinguished the case from one involving wiretapping “foreign powers” or their agents in this country. In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the “primary purpose” of the intercepts was for “foreign intelligence” rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that “the president does have that authority” and noted “FISA could not encroach on the president’s constitutional power.”
For constitutional purposes, the joint resolution passed with but a single dissenting vote by Congress on Sept. 14, 2001, was the equivalent of a formal declaration of war. The Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot v. Seamen), that Congress could formally authorize war by joint resolution without passing a formal declaration of war; and in the post-U.N. Charter era no state has issued a formal declaration of war. Such declarations, in fact, have become as much an anachronism as the power of Congress to issue letters of marque and reprisal (outlawed by treaty in 1856). Formal declarations were historically only required when a state was initiating an aggressive war, which today is unlawful.
Section 1811 of the FISA statute recognizes that during a period of authorized war the president must have some authority to engage in electronic surveillance “without a court order.” The question is whether Congress had the power to limit such authorizations to a 15-day period, which I think highly doubtful. It would be akin to Congress telling the president during wartime that he could attack a particular enemy stronghold for a maximum of 15 days……
Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation’s declared enemies, even when they elect to communicate with people within our country.
Mr. Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law, served as counsel to the President’s Intelligence Oversight Board, 1982-84.
Excellent post there Snapple! Thanks for the tip.
There are some points, non-Constitutional, that have not been well covered in most of this.
FISA specifically does NOT cover foreign communications. Not if they are intercepted outside of the US (and all of these were) and if there is a. no “reasonable expectation of privacy” in the foreign point or if b. “we have receprocal agreements with foreign governments.” (There are _no_ foreign governments, even those with strong privacy laws, who cover privacy of _foreign_ communications!) In all of these intercepts, information indicates either that a or b, or both, were covered.
There was no law broken. Unless there is a law broken, “whistle blower” protections do not apply.
The same, by the way, applies to the “illegal” CIA prisons. They are not illegal under _US_ law and even “kidnapping” of suspected terrorists is not illegal under US law. (In fact, the program was specifically implemented by Clinton.)
Now the reporters and the press might not have done anything wrong. That’s where it’s tricky. The statutes there are baroque. But USC 18 isn’t. Whoever _gave_ them the information _is_ looking at hard time. It’s identical to giving secrets to the USSR or Al Qaeda.
This isn’t the Plame “kerfuffle.” These were highly classified operations, the people who disclosed them a. knew they were highly classified b. were in classification positions with access to the information c. were informed of the penalty for disclosure and they disclosed them anyway.
They are going to prison.
Hopefully, the “leakers” on all this stuff will get the point. Secret means SECRET!