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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

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.

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.

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