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Friday, February 24, 2006
Suicide Bomber Thrawted at Saudi Oil Facility
By Dr. Steven Taylor @ 8:28 am

Via Reuters: Suicide bombers attack Saudi oil facility

An explosion rocked Saudi Arabia’s huge Abqaiq oil facility in the east of the kingdom on Friday and an official said Saudi forces had thwarted suicide bomb attacks against the world’s biggest oil exporter.

And, of course:

Oil jumped more than $2 a barrel.

Filed under: Global Politics, War on Terror | Comments (0) |Send TrackBack
Thursday, February 23, 2006
More Port Stuff
By Dr. Steven Taylor @ 12:27 pm

This time from Mark Kleiman.

It is lengthy but worth a read.

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(Another) Line of the Day
By Dr. Steven Taylor @ 11:44 am

“This was East Germany in 1960. It was the dictatorship of the clerks, and the clerks were not in a good mood.”-Peggy Noonan on the TSA.

And sadly, this is a extremely accurate picture of airport security:

I am almost always picked for extra screening. I must be on a list of middle aged Irish-American women terrorists. I know a message is being sent: We don’t do ethnic profiling in America. But that is not, I suspect, the message anyone receives. The message people receive is: This is all nonsense. What they think is: This is all kabuki. We’re being harassed and delayed so politicians can feel good. The security personnel themselves seem to know it’s nonsense: they’re always bored and distracted as they go through my clothing, my stockings, my computer, my earrings. They don’t treat me like a terror possibility, they treat me like a sad hunk of meat.

I don’t think most of us get extra screening because they think we are terrorists. I think we get it because they know we’re not. They screen people who are not terrorists because it helps them pretend they are protecting us, in the same way doctors in the middle ages used to wear tall hats: because they couldn’t cure you. It’s all show.

Read the whole thing.

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More on the Port Issue
By Dr. Steven Taylor @ 8:53 am

Here are some excellent posts on the port issue:

  • OTB: Dubai Port “Scandal”
  • Kevin Drum: (MUCH) MORE ON THE DUBAI PORT DEAL
  • Dan Drezner: What’s the big deal about the port deal?
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The Other Shoe on the Port Deal?
By Dr. Steven Taylor @ 8:21 am

Via the AP: Documents Reveal White House Deal on Ports

Under a secretive agreement with the Bush administration, a company in the United Arab Emirates promised to cooperate with U.S. investigations as a condition of its takeover of operations at six major American ports, according to documents obtained by The Associated Press.

My first question is: “secretive” in the sense that negotiations weren’t held live on tv, or “secretive” in the sense that it wasn’t common knowledge? This all sounds quite ominous, however, the details don’t sound especially dastardly, although it is unclear what the exact significance of the agreement would be.

The agreement details:

In approving the $6.8 billion purchase, the administration chose not to require state-owned Dubai Ports World to keep copies of its business records on U.S. soil, where they would be subject to orders by American courts. It also did not require the company to designate an American citizen to accommodate requests by the government.

Outside legal experts said such obligations are routinely attached to U.S. approvals of foreign sales in other industries.

This is one of those deals were the lede sets the tone and one wonders the degree to which the author of the piece was seeking a particular tone. Starting with “Under a secretive agreement…” makes the whole thing sound especially dark and dramatic.

Regardless of all of that, I expect that this will toss substantial fuel on the fire.

However, we are talking here about whether the liaison between the company and US government is an American or not, and the issue of document storage (which, granted, could affect lawsuits and such, I suppose):

The administration required Dubai Ports to designate an executive to handle requests from the U.S. government, but it did not specify this person’s citizenship.

It said Dubai Ports must retain paperwork “in the normal course of business” but did not specify a time period or require corporate records to be housed in the United States. Outside experts said stricter provisions are routine in other industries.

Foreign communications companies with American customers are commonly required to store business records in the United States. A senior U.S. official said the Bush administration considers shipping manifests less sensitive. The official spoke on condition of anonymity because of the confidential nature of the agreement.

I suppose that the document issue could be of issue in the case of an attack and in any investigation of that attack.

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Wednesday, February 22, 2006
More on the Politics of Ports
By Dr. Steven Taylor @ 10:12 am

I’m with Kevin Drum on this port deal-on the face of it there really doesn’t seem to be a real problem, but I also feel like I am missing something. Drum makes a nice list of the obvious main issues.

The notion that because 9/11 highjackers came from the UAE means that we can never do business with a UAE-based company seems odd, to be honest.

Of course, the overall situation is such that it helps highlight the fact that we really have no clue how to make the ports secure.

The LAT’s editorial page weighs in:

The problem is that blocking the Dubai deal wouldn’t do a thing to change any of that. It only provides members of Congress an opportunity to talk tough and pander to the terrorism-rattled xenophobe in us all.

Dubai Ports World, like the foreign companies that already run the majority of key U.S. ports — including 80% of the terminals in Los Angeles — does not own the points of entry. It is a contractor that coordinates logistics. And most important, it’s not in charge of security. Port operators work with U.S. security officials (port police, the Coast Guard, the Department of Homeland Security) in charge of preventing terrorism.

The NYT op/ed page takes Congress’ side, pointing more to process than to the actually issue, however:

Congress is right to resist the ports deal, in which the company, Dubai Ports World, would take over the British company now running these operations. The issue is not, as Mr. Bush is now claiming, a question of bias against a Middle Eastern company. The United Arab Emirates is an ally, but its record in the war on terror is mixed. It is not irrational for the United States to resist putting port operations, perhaps the most vulnerable part of the security infrastructure, under that country’s control. And there is nothing in the Homeland Security Department’s record to make doubters feel confident in its assurances that all proper precautions will be taken.

The Bush administration has followed a disturbing pattern in its approach to the war on terror. It has been perpetually willing to sacrifice individual rights in favor of security. But it has been loath to do the same thing when it comes to business interests. It has not imposed reasonable safety requirements on chemical plants, one of the nation’s greatest points of vulnerability, or on the transport of toxic materials. The ports deal is another decision that has made the corporations involved happy, and has made ordinary Americans worry about whether they are being adequately protected.

The WSJ see politics by Frist and the Democrats and sides with Bush.

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Bush Didn’t Know About Ports Deal
By Dr. Steven Taylor @ 9:45 am

Via the AP: Bush Didn’t Know About Ports Deal

President Bush was unaware of the pending sale of shipping operations at six major U.S. seaports to a state-owned business in the United Arab Emirates until the deal already had been approved by his administration, the White House said Wednesday.

On one level, one would think that this would be the kind of thing done at a lower level within the administration, but why the vociferous defense of the sale?

This is turning into one rather odd situation, as the political forces in the Congress are squarely aligning against the President, including the Speaker and the Senate Majority Leader. Meanwhile, Bush’s most visible political ally on this topic is President Carter.

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Monday, February 20, 2006
On Prisoner Abuse
By Dr. Steven Taylor @ 1:49 pm

Via WaPo: Navy Counsel Issued Warning On Torture

The Navy’s general counsel warned Pentagon officials two years before the Abu Ghraib prison scandal that circumventing international agreements on torture and detainees’ treatment would invite abuse, according to a published report.

Legal theories granting the president the right to authorize abuse despite the Geneva Conventions were unlawful, dangerous and erroneous, then-General Counsel Alberto J. Mora advised officials in a secret memo.

[…]

The July 7, 2004, memo recounted Mora’s 2 1/2 -year effort to halt a policy that he feared would authorize cruelty toward terrorism suspects.

It also indicates that some lawyers in the Justice and Defense departments objected to the legal course the administration undertook, according to the report.

Given that the defense for what happened at Abu Ghraib was that it was the poor behavior of underlings and not the result of overall policy, this is quite significant.

Further, the documents specifically mention Guantanamo:

Mora said Navy intelligence officers reported in 2002 that military-intelligence interrogators at Guantanamo Bay, Cuba, were engaging in escalating levels of physical and psychological abuse rumored to have been authorized at a high level in Washington.

A main part of the problem has been the ongoing notion that we have only captured very bad people with direct knowledge of pending evil acts and therefore there should be no limits on what is done to acquire said knowledge. Another part of the problem is our own perceived infallibility is identifying these qualities in those we capture.

The problem (or, one of several problems) that emerges from such a scenario is that everyone we have in custody isn’t who we think they are, as the National Journal’s study of the Guantanamo prisoners reveals (see Kevin Drum for a short excerpt, plus he notes another study that corroborates the NJ’s piece, noted here-I plan to blog more on this topic later). In short: when we are told that the people in Guantanamo are “people picked up off the battlefield in Afghanistan” (President Bush, 6/20/05) and “[t]hese detainees are dangerous enemy combatants….They were picked up on the battlefield, fighting American forces, trying to kill American forces” (Scott McClellan, 6/21/05), and yet it ends up that only 35% of the detainees were captured in Afghanistan. Given that they have all been represented as being primarily battlefield captures, that is a significant variation. The vast majority of the detainees have been captured by other countries and turned over to the US, most notably Pakistan, and have frequently been as the result of offers of reward to anyone who can turn in an al Qaeda member.

The zeal to protect the US from another 9/11 has led to some very bad acts in the name of the people of the United States of America and to some clearly unjust activities. As such, it is clear that abuses have taken place not just because of a few bad apples, but because of the general policy direction that the administration has pursued in the war on terror.

As such, I think that I, and others, have had cause to question the “trust me” attitude of the administration when it comes to the NSA surveillance program.

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Friday, February 17, 2006
The Surveillance Issue Continues
By Dr. Steven Taylor @ 6:42 am

Via the AP: Judge Orders Spying Documents Released

A federal judge ordered the Bush administration on Thursday to release documents about its warrantless surveillance program or spell out what it is withholding, a setback to efforts to keep the program under wraps.

And before there is a hue and cry about how we can’t talk about the program, I would note that the blame for having to take this to this level rests firmly on the shoulders of the administration for being recalcitrant over the need to deal more openly with the congress.

And again, I would note that I have a very hard time with the notion that somehow letting al Qaeda know that we have been listening in on them (which is really the only information that has been released in regards to this program) is somehow a super-secret that they themselves would not have been assuming all along to be a ludicrous proposition. What specific detail has been made public that would even tell them what behaviors they would need to change to avoid being surveilled?

One guesses, however, that there aren’t going to be any startling revelations as a result of this Freedom of Information Act request.

More likely, if there is to be any progress, it will come via the congress:

the Republican chairman of the Senate Intelligence Committee said he had worked out an agreement with the White House to consider legislation and provide more information to Congress on the eavesdropping program. The panel’s top Democrat, who has requested a full-scale investigation, immediately objected to what he called an abdication of the committee’s responsibilities.

[…]

On Capitol Hill, lawmakers also have been seeking more information about Bush’s program that allowed the National Security Agency to eavesdrop — without court warrants — on Americans whose international calls and e-mails it believed might be linked to al-Qaida.

After a two-hour closed-door session, Senate Intelligence Chairman Pat Roberts, R-Kan., said the committee adjourned without voting on whether to open an investigation. Instead, he and the White House confirmed that they had an agreement to give lawmakers more information on the nature of the program. The White House also has committed to make changes to the current law, according to Roberts and White House deputy press secretary Dana Perino.

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Thursday, February 16, 2006
Will is Right
By Dr. Steven Taylor @ 9:12 pm

First off, George Will was on target in his column this morning. The President is asserting powers that he does not have by making a vague Article II claim and by retroactively deciding that the AUMF lets him do essentially whatever he wants if it can be even vaguely tied to 9/11. As such, the term “monarchical” fits the bill:

The next time a president asks Congress to pass something akin to what Congress passed on Sept. 14, 2001 — the Authorization for Use of Military Force (AUMF) — the resulting legislation might be longer than Proust’s “Remembrance of Things Past.” Congress, remembering what is happening today, might stipulate all the statutes and constitutional understandings that it does not intend the act to repeal or supersede.

But, then, perhaps no future president will ask for such congressional involvement in the gravest decision government makes — going to war. Why would future presidents ask, if the present administration successfully asserts its current doctrine? It is that whenever the nation is at war, the other two branches of government have a radically diminished pertinence to governance, and the president determines what that pertinence shall be. This monarchical doctrine emerges from the administration’s stance that warrantless surveillance by the National Security Agency targeting American citizens on American soil is a legal exercise of the president’s inherent powers as commander in chief, even though it violates the clear language of the 1978 Foreign Intelligence Surveillance Act, which was written to regulate wartime surveillance.

Still, not all agree. I noted that Ed Morrissey played the war card earlier today-i.e., the notion that a president has expanded powers in a time of war as Commander-in-Chief. Of course, there is a small problem with the war card if we are going to use in the legal realm: we aren’t legally at war. Even if we were, I dispute the notion that such a situation automatically enhances the presidents power vis-a-vis the Congress just because we are “at war”-especially when those war powers are being used, at least in part, on US soil.

However, there has been no declaration of war, so to pretend like there is a special legal condition that affects the constitutional order is simply incorrect. Yes, in the general sense we are war. There are troops deployed and people are dying and there are very real threats that must be dealt with. But by that definition the last time we weren’t at war was some time back in 1941.

(I will grant Morrisey is correct for taking Will to task for referring to FISA as a law designed for wartime surveillance. I think Will was sloppy in the last sentence of the above-quoted paragraph. However, I still think Morrissey gets it wrong: FISA is in place for any kind of surveillance of domestic communications, so it wholly applicable here).

I would reiterate a point on this war issue I made sometime back: do we want to indefinitely imbue the president (and again, the next president could be Hillary Clinton or fill-in-the-blank) with extra-special wartime powers for perhaps decades until the long war on terror is utterly finished? Is this really a healthy thing to pursue for our democracy? As I wrote in December:

To put it in simplistic terms: if non-wartime is “normal” and wartime is “extraordinary” are we now saying that “extraordinary” is the “new normal”?

If that is true, let’s amend the Constitution and rewrite the laws. “Normal” requires regular rules. Only “Extraordinary” should allow for unusual, temporary powers.

As such, even if Bush is now a “wartime president” and will be such for the next three years, then we have to determine the proper institutional parameters for this “new normal.”

The bottom line is, the fact the there is a serious threat that must be faced doesn’t mean that the president (this one, or any other) can just ignore the law because they think that it is the right thing to do.

And Ed overplays the whole war notion by not really addressing the main issue, but concluding by asserting the need for unified command:

Congress needs to exercise care in its authorization for military force, and then let the American people exercise their check on the presidency by voting the “monarch” out of office. That’s the way the Constitution is structured, not to have 535 individuals micromanaging activities that clearly fall under the normal operation of war.

No one is asking for micro-management, nor is there any serious dispute about the need for a unified CinC. However, all those of use who are concerned with the program ask is that the appropriate checks and balances be put into place and that the president act within the bounds of established law.

And then we have Andrew McCarthy writing at NRO who takes Will to task as well(he calls the piece “a diatribe”), stating that since the whole thing is foreign policy, it is therefore the president’s realm anyway:

The administration’s position, and the program, is pertinent to governance in the field of foreign relations. In that field, whether Will likes it or not, the president has primacy — primacy of the same sort the Supreme Court enjoys in interpreting the Constitution and Congress in funding governmental operations. The president does not enjoy such primacy because of some Bush administration ipse dixit. It has been the law ever since we began living under the Constitution.

Yes, the president has primacy, but primacy is not totality. Not only did Will appropriately cite some of the ways in which the Founders intended the Congress to be involved in foreign affairs, I would also point anyone interested to a list I made last week.

A plain reading of the Constitution of the United States reveals the fact the Founders intended Congress to have a role in foreign policy and national security policy. Indeed, that many conservatives seem to be selectively reading the constitution to fit their view of things is troubling (and hypocritical since that is normally the charge that conservatives level at liberals).

Yes, McCarthy then quotes a number of Supreme Court cases that back his position about the President and foreign policy. All well and good, but he underplays a number of issues and focuses on items that are wholly foreign in nature. No one is arguing that the President does not have a very free hand in his action outside the US when pursing national security policy. However, to ignore the domestic side of this equation obfuscates the debate.

Further, McCarthy overplays his hand when he tries to downplay powers, such as the Senate’s role in treaties, to somehow deride the notion that the congress has any foreign policy role to play. He also makes far too little of the idea that congress can declare war.

I will concur with McCarthy, however, that Will’s use of the necessary and proper clause is a bit off. However, there is still the general fact the congress does have the power to set down in statute a good deal about the behavior of the president within the government of the United States.

At least I know that I am not wholly alone on this matter, as John Henke at QandO wrote today that Will made “makes excellent points.” I also concur with his assessment of Morrissey’s line about Will not being a conservative:

Incidentally and inexplicably, I note that Captain Ed blogs on this story, writing that George Will “isn’t exactly a conservative, but he usually covers the center well enough.” What the…?!?!?! In what alternate political reality is George Will not a conservative?

Perhaps this is evidence of Glenn Greenwald’s hypothesis that “‘conservatism’ is now a term used to describe personal loyalty to the leader (just as “liberal” is used to describe disloyalty to that leader), and no longer refers to a set of beliefs about government.” I simply cannot imagine the thought process that would lead one to conclude that George Will is a centrist.

It was an odd statement, to be sure.

And really, I keep wondering how the President’s defenders would be reacting right now if it was Bill Clinton (or Al Gore, or John Kerry, or Hillary Clinton) who was doing what George W. Bush is currently doing. I suspect that any many cases, at least, the response would be quite different (and, vice versa, there are a number of current critics who would be in support).

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Monday, February 13, 2006
Surveillance Program Damaged?
By Dr. Steven Taylor @ 6:21 am

Via the AP: Lawmaker Questions Value of Spy Program

“The problem now is the program really of questionable value,” House Intelligence Committee Chairman Peter Hoekstra, R-Mich., said Sunday on NBC’s “Meet the Press.”

“It’s been across the media for the last 50 days. Does anyone really believe that, after 50 days of having this program on the front page of our newspapers, across talk shows across America, that al-Qaida has not changed the way that it communicates?”

On the one hand, I suppose that any revelations about the existence of a surveillance program would cause a change in al Qaeda’s behavior-although one would assume that they were aware that the US was trying to spy on them already. On the other hand, since it is still quite unclear as to the particulars of the program, what behaviors would they know to change? It isn’t like operational details have been divulged.

It isn’t as if they haven’t always tried to be careful in their communications and activities.

This notion that it is helping the terrorists win because the citizens of the United States wish to have a discussion about one aspect of how the war on terror it being prosecuted is absurd. Indeed, if we are going to to squelch all debate and discussion on the topic, that is far more problematic. Indeed, I don’t like the implication from Hoekstra, which is that people talking about the government has screwed everything up-all those newspaper and talks show and such. Everyone just needs to hush up so that we can fight the terrorists.

Carelessly revealing operational details of a program is one thing, having a healthy and important debate on the relative powers of the President, Courts and Congress is quite another.

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Saturday, February 11, 2006
Republican Rumblings on NSA Program
By Dr. Steven Taylor @ 7:25 am

Via the NYTRepublican Speaks Up, Leading Others to Challenge Wiretaps.

This time the concerns are coming from the House:

[Representative Heather A.] Wilson and at least six other Republican lawmakers are openly skeptical about Mr. Bush’s assertion that he has the inherent authority to order the wiretaps and that Congress gave him the power to do so when it authorized him to use military force after the Sept. 11, 2001, attacks.

The White House, in a turnabout, briefed the full House and Senate Intelligence Committee on the program this week, after Ms. Wilson, chairwoman of the subcommittee that oversees the N.S.A., had called for a full-scale Congressional investigation. But some Republicans say that is not enough.

[…]

Ms. Wilson has considerable credentials in national security. She is a graduate of the Air Force Academy and a former Air Force officer. A Rhodes Scholar, Ms. Wilson obtained a master’s degree and doctorate in international relations. She also worked as an arms control negotiator for the National Security Council under the first President Bush.

As such, she is hardly some backbencher looking for screen time.

The piece also notes that hers is a swing district:

Representative Rahm Emanuel of Illinois, chairman of the Democratic Congressional Campaign Committee, said Ms. Wilson was most likely distancing herself from the White House to curry favor back home.

Of course, since it is Emanuel’s job to win that seat, it behooves him to cast aspersions on her motives.

The piece also quotes Democratic Senator Jane Harmon, ranking minority member on the Senate Intelligence Committee, as noting that Wilson had expressed private concerns about the program to her last year.

Momentum is growing to force better oversight.

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Friday, February 10, 2006
Legal Justification IV: FISA
By Dr. Steven Taylor @ 7:12 pm

(Part of a series of sorts: Previously: Part I, Part II, and Part III).

This afternoon I was suffering surfing (although I think that was a Freudian typo) the radio and caught a few minutes of Tom Sullivan sitting in for Rush Limbaugh (I was bored with the Gretsky conversation being engaged in by the guy sitting in for Colin Cowherd-there’s only so much that can be said with the current fact set, and he kept saying it over and over and over).

At any rate, he mentioned some column (I can’t remember by whom) that allegedly demonstrated how what the President has done to date was within the scope of FISA and cited section 1802. Indeed, he challenged all who were listening to Google “FISA Section 1802.”

The portions that he read over the air were such that it was clear Sullivan really didn’t know what he was talking about, as he seemed to think that the administration had been complying with the briefing requirements listed in 1802, when this has clearly not been the case (noted below).

However, upon reading the section, it becomes clear that Sullivan missed more than just the reporting requirement issue.

This portion of the code is numbered and named as follows: US CODE: Title 50,1802.

Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court.

I am no attorney, but this looks like a rather relevant portion of FISA vis-a-vis the NSA program currently under scrutiny. Note, in particular, the bolded portion below:

(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party;

Unless one construes the AUMF to fulfill the requirements in sub-section (a)(1), it seems plain that the NSA program is in violation of this portion of the statute. If the AUMF does not fit that sub-section, then the problem goes beyond the warrants problem to the problem that the law explicitly forbids the capturing of the communications of a “United States person.”

Even if we assume that that is the case, the administration has failed to conform to the following sub-section:

if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.
(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, …

Note the inclusion of the Intelligence Committees of both Houses of Congress and the Chief Judge of the FISA Court-i.e., checks and balances.

There haven’t been any such reports to the committees in question. Yes, there were briefings of a set of members but not of the whole committees. Indeed, this week was the first time that the full committees have received formal briefings.

The remarkable thing about Sullivan’s argument is that he read the reporting requirements over the air, and simply assumed that they were being complied with.

Filed under: US Politics, War on Terror, Talk Radio | Comments (0) |Send TrackBack
Thursday, February 9, 2006
Legal Justifications III: The Constitution
By Dr. Steven Taylor @ 1:53 pm

(Another post in an ongoing series of thoughts on the wiretap controversy and the legal and constitutional argument that surround it. Previously: Part I and Part II).

There are many things in the political realm that I find puzzling. These days one of them is the notion that seems to be floating out there in regards to the role of Congress in national security affairs by conservatives who also frequently argue for either originalism or strict construction vis-a-vis the US Constitution.

In that arena, I would note that it is awfully hard to argue that the Founding Fathers did not envision a significant role for the Congress in the overall area of national security policy.

In the list of powers expressly granted to Congress in Article I, Section 8 we have the following:

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Clause 13: To provide and maintain a Navy;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Clause 11 is interesting. The most I think about it, for example, the more I think that those who believe in a strict interpretation of the Constitution should insist on the resuscitation of this power-the US ought not be getting involved in actions like Korea, Viet Nam, Gulf Wars I & II, etc. without declarations of war from Congress.

However, the later portion of the clause is of interest in the current debate: “make Rules concerning Captures on Land and Water” might be construed as being applicable to the actions in the war on terror abroad, amongst other clauses listed above.

At a minimum, those (like some of my commenters) who seem to think that Congress has no role to play here are simply wrong.

As a side note, Clause 12 and 14 clearly allow the Congress to regulate the behavior of US troops (as in the McCain amendment on torture).

And, of course, there’s that whole Fourth Amendment thing:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

To be clear: I have never been concerned with the idea that we are listening in on foreign communications-the problem is that under the program as I understand it, US citizens on US soil are subject to wiretap without a warrant. Surely that violates the strict letter of the Fourth Amendment.

Hence: the solution is to find a legal way to acquire a warrant that allows for the surveillance in question.

Bottom line of all of this: there are serious constitutional issues at play here, and to deny that fact is to ignore the constitution and to focus on only what one wants the outcome to be (in this case, people want al Qaeda monitored, and seem willing to ignore other issues if those ends are achieved).

Filed under: US Politics, War on Terror | Comments (7) |Send TrackBack | Show Comments here

PoliBlog: A Rough Draft of my Thoughts » Will is Right linked with [...] ed the Congress to be involved in foreign affairs, I would also point anyone interested to a list I made last week. A plain reading of the Constitution of the United States reveals the fact the Founde [...]
PoliBlog: A Rough Draft of my Thoughts » Legal Justification IV: FISA linked with [...] Taylor @ 7:12 pm (Part of a series of sorts: Previously: Part I, Part II, and Part III). This afternoon I was suffering surfing (although I think that was a Freudian typo) the radio and c [...]
Congress and the Wiretaps
By Dr. Steven Taylor @ 9:47 am

Via WaPo: White House Agrees to Brief Congress on NSA Surveillance

Responding to congressional pressure from both parties, the White House agreed yesterday to give lawmakers more information about its domestic surveillance program, although the briefings remain highly classified and limited in scope.

Despite the administration’s overture, several prominent Republicans said they will pursue legislation enabling Congress to conduct more aggressive oversight of the National Security Agency’s warrantless monitoring of Americans’ phone calls and e-mails.

Good-on both counts.

In regards to the program:

The administration recently acknowledged that in 2001, it began eavesdropping on an undisclosed number of communications without alerting the FISA court or seeking warrants. Each targeted communication involves a person in the United States and one outside, Gonzales told the Senate panel this week, and at least one of the persons is suspected of a tie to terrorists.

The Washington Post reported Sunday that thousands of Americans appear to have been monitored, resulting in very few suspects that the NSA deemed worthy of further pursuit. Gonzales and Hayden have declined to confirm or dispute the article’s chief findings.

There is something wrong with thousands of American being monitored by their government without a warrant, while in the US no less.

Further, if the program has netted only a handful of persons worthy of further surveillance, then it begs the question as to the drama surrounding the dire need by the administration for the program as currently constituted. It especially calls into question all the assurances from General Hayden and others that the professionals in the NSA only monitor persons for whom there is a high probability of connection to terrorist activities.

Filed under: US Politics, War on Terror | Comments (14) |Send TrackBack | Show Comments here
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