P8kice8zq6szrqrmqxag

Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

I hear that Sens. Rockefeller and Roberts are now in an escalating press release over the NSA intercept story.

Roberts says that contrary to what Rockefeller says in his letter released yesterday, there were many things he could have done if he didn't think the NSA program was appropriate or legal. But he didn't do any of them. Roberts even says that Rockefeller expressed support for the program in subsequent classified briefings.

As readers of this site know, Roberts has a pretty good history of fibbing when the White House requires it. But we also have no brief for Sen. Rockefeller. For years he was far too passive on the Iraq WMD front, though he's been getting action of late on the Niger business -- about which we'll say more later.

So let me toss out of a few questions. Exactly who else got the briefing that Rockefeller did? I assume it was limited to the leaders of each body and the chair and ranking members of the intel committees. How much ability did Rockefeller have to get the rest of the senate intel committee to take the matter up? Who else was he legally permitted to communicate with about this?

Let's get the specifics on the table. Let the chips fall where they may. Whatever you think of this program, oversight is essential in such a case. Let's get the details.

William Kristol and Gary Schmitt have a column in today's Washington Post that advances a simple premise: the president "uniquely swears an oath -- prescribed in the Constitution -- to preserve, protect and defend the Constitution." While Congress legislates for the 'in general', the president is the one who must face particular crises, ones whose dimensions, dangers and particularities legislators could not have foreseen. This mix of responsibility and authority gives the president the unique and awesome power to set aside Congress's laws in the over-riding interest of securing the nation.

This is a doctrine fraught with danger in a constitutional republic. But it is not a new theory and it is not without some merit.

A little more than a year ago, I discussed this in a post about an earlier Pentagon report which argued that the power to set aside laws is "inherent in the president." That principle is simply not reconcilable with the principles of our republic. But no less a man than Thomas Jefferson considered a possible exception ...

If memory serves, Thomas Jefferson -- when he was later thinking over the implications of his arguably unconstitutional Louisiana Purchase (and again this is from memory -- so perhaps someone can check for me) -- argued that the president might find himself in a position in which he might have the right or even the duty to disregard the law or some stricture of the constitution in the higher interests of the Republic.

Jefferson's argument, however, wasn't that the president had the prerogative to set aside the law. It was that the president might find himself in a position of extremity in which there was simply no time to canvass the people or a situation in which there was no practicable way to bring the relevant information before them. In such a case the president might have an extra-constitutional right (if there can be such a thing) or even an obligation to act in what he understands to be the best interests of the Republic.

The clearest instance of this would be a case where the president faced a choice between letting the Republic be destroyed or violating one of its laws.

But that wasn't the end of his point. Having taken such a step, it would then be the obligation of the president to throw himself on the mercy of the public, letting them know the full scope of the facts and circumstances he had faced and leave it to them -- or rather their representatives or the courts -- to impeach him or indict those who had taken it upon themselves to act outside the law.

As I recall Jefferson's argument there was never any thought that the president had the power to prevent future prosecutions of himself or those acting at his behest. Indeed, such a follow-on claim would explode whatever sense there is in Jefferson's argument.

If you see the logic of Jefferson's argument it is not that the president is above the law or that he can set aside laws, it is that the president may have a moral authority or obligation to break the law in the interests of the Republic itself -- subject to submitting himself for punishment for breaking its laws, even in its own defense. Jefferson's argument was very much one of executive self-sacrifice rather than prerogative.


This is where Kristol and Schmitt's hypothesizing fails republican muster. The president may well find himself or herself in situations that the Congress could not have anticipated or ones where the well-being of the country requires the president to ignore the letter of the law. (Only in the most extreme cases is this even conceivable -- but at least for the sake of conversation let's posit the possibility.) But the factor here is not the president's unique ability to judge these matters; the issue is time and urgency. Certainly, at the first practicable moment the president has to take the matter before the appropriate members of Congress, explain himself, request that the relevant laws be revised and open himself up to the possibility of real accountability for his actions.

And yet it seems pretty clear that this is not what the president did. The White House gave briefings to four or six members of Congress and then prevented them from discussing the matter either with colleagues or with staff. That makes the consultation pretty close to meaningless.

Kristol and Schmitt conclude by writing ...

This is not an argument for an unfettered executive prerogative. Under our system of separated powers, Congress has the right and the ability to judge whether President Bush has in fact used his executive discretion soundly, and to hold him responsible if he hasn't. But to engage in demagogic rhetoric about "imperial" presidents and "monarchic" pretensions, with no evidence that the president has abused his discretion, is foolish and irresponsible.


But this makes no sense. The Congress can't hold the president accountable or legislate on these matters for the future if they're never informed of what the president is doing. That's obvious. There may be some situations Congress can't have foreseen in advance; but Kristol and Schmitt are talking about a situation the president has prevented the Congress from considering even after the fact.

That's the end of constitutional government. No individual is absolute in a democratic republic. But this principle allows the president to make himself just that.

I've been suggesting that what's in play here in this NSA matter is a new technology of some sort -- one which conducts searches in ways that you just can't get warrants for. And here Kevin Drum pulls together several threads of information that point in what figure is likely the correct direction.

He concludes by writing: "It seems clear that there's something involved here that goes far beyond ordinary wiretaps, regardless of the technology used. Perhaps some kind of massive data mining, which makes it impossible to get individual warrants? Stay tuned."

Like I said, a bunch of information I've heard over the last 48 hours tells me he's on the mark here. Not precisely, perhaps. I'm not sure it's data-mining precisely. Perhaps they're doing searches for certain patterns of words or numbers, perhaps something as simple as a phone number. But unlike 'traditional' wiretapping, in which you're catching the conversations of a relatively small and defined group of people, this may involve listening in on a big slice of the email or phone communications in the country looking for a particular phone number or code or perhaps a reference to a particular name.

From a technological point of view there's not really much outlandish about this at all. This is just the sort of thing the NSA is in the business of doing overseas. But you can see how this would just be a non-starter for getting a warrant. It is the definition of a fishing expedition.

Quite a spread. Polls of the president's approval rating over the last week are, in order from most recent, 41% (Gallup), 47% (ABC/Post), 42% (Fox), 50% (Hotline), 39% (NBC).

Jon Alter: "I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting, but one can only imagine the president’s desperation."

Over the last couple days I've heard informed speculation from several knowledgeable sources that what is likely really at issue here is the nature of the technology being deployed -- both new technology and technology which in the nature of its method of collection turns upside down our normal ways of thinking about what constitutes a reasonable or permissible search.

Here's what one reader sent in this evening ...

I suspect that others have noticed an odd element in Sen. Rockefeller's letter. He takes pains to point out that he is neither a lawyer nor a technical specialist - presumably, the latter referring to the technology being proposed for the non-FISA wiretaps that the Administration has put into place. And, he complains that he needs the help of staff to make sense of what he was briefed on.

It's an odd comment, if all that was sought by Cheney was the ability to look, prospectively, at telephone or computer communications. Where's the technical novelty? and for that matter, the law isn't that complex. You might expect Rockefeller to say, I disagree, but he wouldn't stress the need for staff help in order to review complex new issues of law and technology.

But it fits together if what was being proposed was to look, either prosepectively or retrospectively, at everyone's E-mail -- which the NSA is reportedly capable of -- and then filter it for certain key words. Presumably, those messages which meet certain search criteria would then be culled for further study, or longer-term monitoring might be done of both the sender and recipient.

That sort of dizzying effort would raise both technical and legal issues, such as: what technical capabilities and safeguards are possible to implement; what is the legality of read-and-discard searches, and so on. Indeed, since I believe that retrospective searches could be done, the Administration might be seeking to look at all prior communications as well, once a hit was found. No FISA authorization would be possible, since this sort of activity was not contemplated by that law.

This fits all too well with the TIA comment that Rockefeller makes in his note, and his ominous warning that he is keeping a record. And I fear that this is what has been underway for the past two years.


Another TPM Reader, AF, had this to say ...

I've enjoyed reading your blog, today I read the Rockefeller memo. I am sure you've read enough bureaucratic communications to know what this memo says: "When this hits the fan, I am keeping a copy of this so you can't take me down with you." I hope you explicitly bring this out in one of your postings. The consulted senators knew this was ultimately going to go nuclear.


Then finally there was this note from TPM Reader CM ...

To read Sen. Rockefeller's feeble handwritten letter is like reading a note sent from a jailed political prisoner, isn't it? This must be the "oversight" Bush was talking about this morning - giving a Senator an iota of information regarding extra-legal executive branch activities, prohibiting him to even tell his own staff, and then refusing to respond in any meaningful way when he writes a handwritten letter of concern to the VP ...


What do you think? Share your thoughts with fellow readers at this thread we just set up at TPMCafe.

I was in meetings for most of the day today. And clearly a lot has transpired over the course of the afternoon. But I wanted to go back and clarify one point that I believe has become muddled a bit in the discussion of the White House's legal argument with these wiretaps.

As near as I can tell, they're actually not arguing that the Afghanistan War Resolution gave them the authority to override whatever laws or constitutional prohibitions exist against these warrantless searches/wiretaps. What they're arguing is that the Resolution affirmed the president's inherent power as commander-in-chief to do these things.

They really do seem to be arguing that the president's powers as a wartime commander-in-chief are essentially without limits. He's simply not bound by the laws the Congress makes.

For more on this, see this September 25th, 2001 memo by John Yoo, then Deputy Assistant Attorney General, and this Newsweek article from a year ago, which discusses it.

Following up on the post below, we've just posted the newly-released letter Sen. Rockefeller wrote to Vice President Cheney back in July 2003 questioning the NSA domestic wiretapping.

Sen. Rockefeller (D-WV) just released a letter he sent the vice president on July 17th, 2003 after he received his first briefing about the NSA intercepts program. We'll be posting the letter momentarily. The long and the short of it, though, is that Rockefeller, as Ranking Member of the senate intelligence committee, was given a brief descrption of what was happening, but wasn't allowed to discuss it either with his staff or with his colleagues, even other senators on the intel committee.

LiveWire