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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

Here's another piece of the puzzle on the FISA Court and the NSA domestic wiretapping story.

As I noted below, one of the alleged rationales for sidestepping the law and the FISA Court with these NSA wiretaps is the need for timeliness.

The problem with this argument is that the FISA Court is specifically designed to get warrants okayed really quickly and it almost never rejects a government application (I'm still trying to get confirmation on the exact stats).

Apparently, though, this rationale is even weaker than I thought.

It turns out that FISA specifically empowers the Attorney General or his designee to start wiretapping on an emergency basis even without a warrant so long as a retroactive application is made for one "as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance." (see specific citation, here).

Unless I'm missing something, that really puts the dagger in the heart of any rationale based on timeliness or exigent circumstances.

Here's one thing I'm a bit unclear on in this NSA domestic spying story. From reading the original article in the Times, the prime rationale for this program appears to have been to avoid the time and bureaucratic hurdles involved in getting warrants.

In the abstract, there sounds like there might be some merit in that argument, especially considering the importance of speed in counter-terrorism work.

The problem is that the FISA Court -- the secret court set up to handle just such warrant requests -- is designed for speed. And it is known for being extremely indulgent of government applications for warrants. I thought I remembered that at one point at least the FISA Court had never rejected a government request for a warrant, but I may remember that wrong or, if once right, it may no longer be the case.

All of this, of course, is separate from the issue of the president overruling a federal statute by executive order -- something that by definition a president cannot do. But something seems fishy about the rationale itself.

Key passage from today's NSA article in the Post (emphasis added) ...

The NSA activities were justified by a classified Justice Department legal opinion authored by John C. Yoo, a former deputy in the Office of Legal Counsel who argued that congressional approval of the war on al Qaeda gave broad authority to the president, according to the Times.

That legal argument was similar to another 2002 memo authored primarily by Yoo, which outlined an extremely narrow definition of torture. That opinion, which was signed by another Justice official, was formally disavowed after it was disclosed by the Washington Post.


Another John Yoo special.

After decades in captivity at CNN, Robert Novak will now be allowed to return to his natural habitat.

Novak starts at Fox News next month, reports the Journal (sub.req.)

Patriot Act renewal supporters failed to get 60 votes to end debate today in the Senate. Ergo, for now, Sen. Feingold and the rest of those who want to force revisions to the Patriot Act have won.

Remember, Sen. Feingold is blogging on the senate battle over the Patriot Act exclusively this week at TPMCafe's Table for One.

Ahhh, what a fun way to start the day, with the coming together of two of my favorite beats -- OpEd payola and the Abramoff scandal.

In Business Week this morning, Eamon Javers reports that two noted conservative columnists -- Doug Bandow of Cato and noted Social Security privatization advocate Peter Ferrara -- both accepted cash payments from Jack Abramoff to write columns favorable to his clients.

The revelation has caused Bandow to resign from Cato. But Ferrara, who is now at the Institute for Policy Innovation, says "I do that all the time," Ferrara says. "I've done that in the past, and I'll do it in the future."

Now, I used to follow the OpEd payola story pretty closely. (Here are a few examples of posts on the topic from previous years.) And I have to say that when Ferrara implies that this is a common practice, boy is he right, particularly on the right. There are even shops in DC that specialize in ginning up bogus 'man on the street' opeds which they then get placed on major oped pages. Another area where my reporting showed this to be very common was among foreign lobbyists, a number of whom had ex-foreign service officers and various other foreign policy bigwigs on retainer to write opeds advocating on behalf of their clients. Actually, 'write' overstates the matter. The lobbying firm writes the OpEd and the expert signs it.

It hadn't occurred to me that Abramoff dabbled in this racket. But now that I think about it, I can't imagine why it hadn't. If he had these two on the payroll, there must be many, many more.

Now, before I end this post, let me make one important distinction. Everybody knows that most major politicians have speechwriters. And we don't see anything untoward about that. When a major pol writes an OpEd most people understand that either a speechwriter or policy staffer either helped craft the words or got the ideas from the pol and wrote the piece which the pol then signed. Again, I don't think that shocks anyone. When I said there are shops in DC which specialize in this sort of thing, this 'speech writing' sort of OpEding is not what I'm talking about.

What I'm talking about is when, say, the American Federation of Hot Dog Manufacturers wants to beat some new regulation. So they hire a shop in DC which then goes out and finds some sidewalk hot dog vendor and offers to pay him a couple grand if he'll pretend to be the author of an OpEd saying how the new regs will drive his hot dog stand out of business. They then shop it to one of the conservative OpEd pages which are known to be an easy mark for this sort of scam.

Like I said, there are shops in DC who specialize in that sort of thing.

President Bush says Congress saw the same intelligence he did in the lead-up to the war in Iraq. So Sen. Dianne Feinstein (D-CA) asked the non-partisan Congressional Research Service to look into the matter and report back whether or not what the president said is true.

They reported back today. The verdict: not true.

Read it yourself.

Yes, TPM Muckraking Fund fundraiser goes down into its final hours.

Now, with James Tobin's conviction in the New Hampshire phone-jamming case late this afternoon, DOJ lawyers plan to lean on him to flip on folks higher up the ladder in the GOP. So there's even more muck coming down the pike.

Help us rake it.

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