Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

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Just as G.M. has protected its outdated products at the expense of its larger mission, so, too, have Democrats become more attached to their programs than to the principles that made them vibrant in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.

Setting aside all the particulars noted below about the NSA wiretapping story, the most dangerous aspect of this case is the legal theory on which the president was reportedly acting.

According to the original Times article and subsequent reports, the president's authority to override statute law comes from the 2001 congressional resolution authorizing the force to destroy al Qaida.

By that reasoning the president must also be empowered to override the new law banning the use of torture, thus making the McCain Amendment truly a meaningless piece of paper.

Another specious argument.

In his radio address today, discussing the NSA domestic wiretapping, the president said ...

The existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.

How can this be true?

If I'm understanding this correctly, this program allowed the president to conduct warrantless wiretaps in cases where he could have conducted the same wiretaps with warrants by seeking a warrant from the FISA Court. If the wiretaps were against the "international communications of people with known links to al Qaeda and related terrorist organizations" then the FISA Court certainly would have issued the warrants.

So it's the same difference.

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.