Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

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.

From perusing a few headlines it seems the White House and some editors are taking to arguing that surveillance or domestic wiretapping is necessary for national security, that it saves lives.

Of course, it does. What a stupid thing to say, or for the White House, what a disingenuous thing to say.

Wiretaps are conducted around the country every day. The FISA Court alone approves something like a half a dozen a day in highly classified national security or espionage related cases.

The only issue here is why the president decided to go around the normal rules that govern such surveillance, why he chose to make himself above the law.

Back in March I did a few posts trying to get some answer or even an argument to back up Joe Klein's claim that Social Security was a program suited to the industrial age but not to the information age.

At the time on Meet the Press he had told Paul Krugman that "I think private accounts a terrific policy and that in the information age, you're going to need different kinds of structures in the entitlement area than you had in the industrial age."

This argument was beyond my powers of reasoning. And if there's no good argument behind it such talk is pernicious since finding new policy solutions to meet the challenges of the global economy is only impeded by an addiction to buzzwords and sloppy thinking.

I never got a good explanation of what the argument was. So I was surprised and disappointed to see this passage in an article by Matt Bai in today's Times magazine ...

Just as G.M. has protected its outdated products at the expense of its larger mission, so, too, have Democrats become more attached to their programs than to the principles that made them vibrant in the first place. So what if Social Security and Medicaid functioned best in a world where most workers had company pensions and health insurance and spent their entire careers with one employer? The mere suggestion that these programs might be updated for a new, more consumer-driven economy sends Democratic leaders into fits of apoplexy.

Given what he says here, Bai must be talking, as Klein was, about privatization and private accounts when he talks about Social Security.

Please bring me more policy wonks who can think in new ways as befits new times because we are surely in new times. But let's not spin our wheels with the siren song of cool-sounding phrases and poorly thought out arguments.

Bai apparently agrees with Klein that Social Security made for good policy "in a world where most workers had company pensions and health insurance and spent their entire careers with one employer" but not in a world with heavier job turnover and fewer employer-based supports like pensions and health care.

Maybe Bai has a theory to back this up. But it really seems to make no sense to me.

Let's discuss specifics.

As Bai suggests, one of the key challenges we face today is much more rapid job turnover and the decline of employer-based pensions and healthcare. The changes are, of course, tied together and each comes in response to the same economic pressures. If you're going to have four or five jobs over the course of your working life then the traditional employer pension you get after putting into twenty or twenty-five years at a company just isn't going to work -- at least not without some policy tinkering that makes the old system more portable between jobs.

How this makes Social Security less workable or efficient is difficult for me to understand since Social Security is the ultimate in portability. You can change jobs every six months for life and it doesn't matter. And your pension isn't reliant on every company you ever worked for still being solvent when you retire.

Truly, you really don't have to reason through this one very far or very hard to see that if anything has changed over the last few decades it is that Social Security has become more important and more suited to the circumstances of the time rather than less.

There are ideological reasons for changing Social Security or phasing it out. But Bai is saying the structure of our economy today makes it less workable, less efficient. I don't see where that stands up to simple argument. If someone can explain how it does, send me a brief argument to that effect and I'll print it.

Here are some more details on the record of the FISA Court (the Court established in 1978 by the Foreign Intelligence Surveillance Act).

According to this table compiled from DOJ statistics at the EPIC website, the FISA Court did not reject a single warrant application from its beginning in 1979 through 2002. In 2003 it rejected four applications. In 2004, the number was again zero.

So, in a quarter century, the FISA Court has rejected four government applications for warrants.

Only, it's not quite that simple. Take the four rejected applications from 2003.

About one of those rejections the offficial DOJ report says ...

In one case, the Court issued supplemental orders with respect to its denial, and the Government filed with the Court a motion for reconsideration of its rulings. The Court subsequently vacated its earlier orders and granted in part and denied in part the Government's motion for reconsideration. The Government has not appealed that ruling. In 2004, the Court approved a revised application regarding this target that incorporated modifications consistent with the Court's prior order with respect to the motion for reconsideration.

About another of the four the same report says ...

In another case, the Court initially denied the application without prejudice. The Government presented amended orders to the Court later the same day, which the Court approved. Because the Court eventually approved this application, it is included in the 1724 referenced above.

The report also notes that during 2003, the Court "made substantive modifications to the government's proposed orders" in 79 applications out of 1727 applications made and 1724 approved.

The previous year, in 2002 ...

Two applications were "approved as modified," and the United States appealed these applications to the Foreign Intelligence Surveillance Court of Review, as applications having been denied in part. On November 18, 2002, the Court of Review issued a judgment that "ordered and adjudged that the motions for review be granted, the challenged portions of the orders on review be reversed, the Foreign Intelligence Surveillance Court's Rule 11 be vacated, and the cases be remanded with instructions to grant the United States' applications as submitted..."

In 2004, the number of approved warrants with "substantive modifications" was 94 out of a total of 1758.

Before the year 2000 modifications were seldom if ever made. In 2000, there was one; in 2001, two; and in 2002, there were two applications modified but those modifications were later reversed..

2003 is where the change comes.