Powers and Presidents

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Kevin Drum makes a good point here about presidential war powers. There is general agreement (accept maybe among hard-core libertarians) that in times of war and extreme emergency, presidents can take on expanded powers, à la Lincoln and FDR.

But the next question is, what is war? “War powers” have always been considered extraordinary, to be used only in case of emergency. But if you count “hot wars,” the U.S. has been at war for about 20 of the past 65 years. And if you count the Cold War, then we’ve been at war for 50 of the past 65 years. If we consider ourselves to be in a state of war nearly all the time, the extraordinary becomes ordinary. If we assume the president is allowed expanded powers for 50 out of 65 years, the checks and balances of the Constitution are effectively nullified.

Kevin writes,

Somehow we need to come to grips with this. There’s “wartime” and then there’s “wartime,” and not all armed conflicts vest the president with emergency powers. George Bush may have the best intentions in the world — and in this case he probably did have the best intentions in the world — but that still doesn’t mean he has the kind of plenary power Abraham Lincoln and Franklin Roosevelt exercised during their wars.

During a genuine emergency, the president’s powers are at their most expansive. The rest of the time they’re more restricted, whether he considers himself a wartime president or not. Right now, if George Bush needs or wants greater authority than he currently has, he should ask Congress to give it to him — after all, they approve black programs all the time and are fully capable of holding closed hearings to debate sensitive national security issues. It’s worth remembering that “regulation of the land and naval forces” is a power the constitution gives to Congress, and both Congress and the president ought to start taking that a little more seriously.

We need to be clear about whether global terrorism is an extraordinary threat that can be defeated, or whether it’s part of a new phase of human history in which war is not between nations but between sects. I strongly suspect the latter is true, and that the threat of global terrorism will hang over civilizations for generations. Even if the Islamic jihadists were to surrender their fight in our lifetime — highly unlikely, IMO — the world is full of other groups with different agendas who might very well resort to the same tactics.

Horrible though they were, “declared” wars like World Wars I and II had a certain clarity to them. The wars had a sharply defined beginning and end –e.g., the World War I cease fire on the eleventh hour of the eleventh day of the eleventh month. Everybody understood who their enemies were. Soldiers wore uniforms and were (supposed to) operate within certain rules.

But the “war on terror” is so hazily defined that Americans disagree among themselves what it is, or exactly who our enemies are. Regarding Iraq (which may or may not be part of the war on terror, depending on who’s talking), the President only recently acknowledged that the people we are fighting aren’t all “terrorists,” even though he doesn’t seem to be able to get the word “insurgency” out of his mouth. Yet others tell us the al Qaeda affiliates make up less than 10 percent of the people we are fighting in Iraq.

I think the Iraq War is less about fighting al Qaeda, or reshaping the Middle East, or even oil, than it is about the Right’s collective emotional need for a conventional enemy. Iraq is a proxy war standing in for the old-fashioned “glorious little war” the righties desire. But glorious little wars no longer apply to geopolitical reality. Although certainly military actions will be part of the effort to combat terrorism, talk of “fronts” — as in “central front of the war on terror” — seems to me as anachronistic as mounted saber charges.

And the righties seem to think we are in a state of emergency, and have been continually since 9/11. If you’ve ever worked for someone who can’t set priorities, you may know what I’m talking about — when everything’s a priority, nothing is a priority. And when we’re always in a state of emergency, we’re never in a state of emergency. As a nation we need to take a deep breath and understand that we’ve got a lot of long, hard, and mostly not glorious work ahead of us to face the challenge of global terrorism. But we’ve got to understand this is how the world is going to be for the foreseeable future, probably the rest of our lives. And that means fighting terrorism is not an “emergency.” It’s the norm. And all constitutional restrictions apply.

Tainted

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Carol D. Leonnig and Dafna Linzer write in today’s Washington Post that a judge on the FISA court has resigned.

A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush’s secret authorization of a domestic spying program, according to two sources.

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court’s work.

According to colleagues, Robertson was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants.

“They just don’t know if the product of wiretaps were used for FISA warrants — to kind of cleanse the information,” said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. “What I’ve heard some of the judges say is they feel they’ve participated in a Potemkin court.”

Meanwhile, James Risen and Eric Lichtblau of the New York Times report that the NSA program did too include surveillance of purely domestic communications.

A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.

The officials say the National Security Agency’s interception of a small number of communications between people within the United States was apparently accidental, and was caused by technical glitches at the National Security Agency in determining whether a communication was in fact “international.”

Telecommunications experts say the issue points up troubling logistical questions about the program. At a time when communications networks are increasingly globalized, it is sometimes difficult even for the N.S.A. to determine whether someone is inside or outside the United States when making a cellphone call or sending an e-mail message. As a result, people that the security agency may think are outside the United States are actually on American soil.

The blogosphere is, of course, seeing two different realities. The righties have made up their minds that presidents Clinton and Carter also ordered warrantless searches, which (1) isn’t true, and (2) wouldn’t make it right, even if it were true. But you know that won’t make any difference to cowards. There are terrorists out there! Quick, throw the Bill of Rights overboard!

[Update: See more debunking of “warrantless” searches by Clinton and Carter by Georgia10 at Kos.]

Just call them cowards. That’s what they are. I was in lower Manhattan on 9/11 and saw the worst that terrorism can do, and I am not crawling around under rocks screaming that we must compromise everything America stands for to keep us safe. And I’ve never considered myself especially brave; just put me in a dentist’s chair, and I’ll confess to anything. But as I wrote yesterday, righties are so terrified of the jihadist boogeymen they’ll make excuses for anything Big Brother does, in the opinion — unjustified, I say — that Big Brother is keeping them safe. And they call themselves patriots. It’s too pathetic.

And the White House has yet to demonstrate that taking the path to tyranny has made us any safer. For example, Josh Meyer of the Los Angeles Times writes that at least one of Bush’s arguments is bogus.

In confirming the existence of a top-secret domestic spying program, President Bush offered one case as proof that authorities desperately needed the eavesdropping ability in order to plug a hole in the counter-terrorism firewall that had allowed the Sept. 11 plot to go undetected.

In his radio address Saturday, Bush said two of the hijackers who helped fly a jet into the Pentagon — Nawaf Alhazmi and Khalid Almihdhar — had communicated with suspected Al Qaeda members overseas while they were living in the U.S.

“But we didn’t know they were here until it was too late,” Bush said. “The authorization I gave the National Security Agency after Sept. 11 helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities.”

But some current and former high-ranking U.S. counter-terrorism officials say that the still-classified details of the case undermine the president’s rationale for the recently disclosed domestic spying program.

Indeed, a 2002 inquiry into the case by the House and Senate intelligence committees blamed interagency communication breakdowns — not shortcomings of the Foreign Intelligence Surveillance Act or any other intelligence-gathering guidelines.

See also “Bush’s Bogus Analogy” by Daniel Benjamin in Slate.

And of course it didn’t help that the President and National Security Adviser were told that “Bin Laden determined to strike in US” and made no attempt to shake trees, rattle cages or otherwise follow up.

But I digress.

Douglas Jehl writes in today’s New York Times that

The limited oral briefings provided by the White House to a handful of lawmakers about the domestic eavesdropping program may not have fulfilled a legal requirement under the National Security Act that calls for such reports to be in written form, Congressional officials from both parties said on Tuesday.

The White House has refused to describe the timing and scope of the briefings, except to say that there were more than a dozen. But among the small group of current and former Congressional leaders who have attended the high-level gatherings conducted by Vice President Dick Cheney at the White House, several have described them as sessions in which aides were barred and note-taking was prohibited.

Dick is warning senators that investigating the NSA program could be bad for their careers. Ron Hutcheson and James Kuhnhenn write for Knight Ridder,

Senators of both parties on Tuesday demanded a congressional investigation into President Bush’s domestic-surveillance program, even as Vice President Dick Cheney warned that the president’s critics could face political repercussions. …

… Cheney forcefully defended the previously secret spying program – disclosed last Friday by The New York Times – and said that Bush’s critics could pay a political price.

But at the moment the question is not whether there will be an investigation — there will be an investigation — but how the investigation will be conducted.

Five members of the Senate Intelligence Committee – two Republicans and three Democrats – called for a joint investigation by their panel and the Senate’s Judiciary Committee, saying revelations that Bush authorized spying on U.S. residents without court approval “require immediate inquiry and action by the Senate.”

Senate Majority Leader Bill Frist, R-Tenn., said he was discussing the possibility of hearings with various committee chairmen, but he didn’t pledge to hold any. Democratic leader Harry Reid of Nevada said he preferred for each committee to conduct independent inquiries.

David Ignatius at WaPo is encouraged by a revolt of the professionals.

The national security structure that the Bush administration created after Sept. 11, 2001, began to crumble this month because of a bipartisan revolt on Capitol Hill. Newly emboldened legislators forced the administration to accept new rules for the interrogation of prisoners, delayed renewal of the Patriot Act and demanded an investigation of warrantless wiretapping by the National Security Agency.

President Bush has bristled at these challenges to his authority over what has amounted to an undeclared national state of emergency. But the intelligence professionals who have daily responsibility for waging the war against terrorism don’t seem particularly surprised or unhappy to see the emergency structure in trouble. They want clear rules and public support that will allow them to do their jobs effectively over the long haul, without getting second-guessed or jerked around by politicians. Basically, they don’t want to be left holding the bag — which this nation has too often done with its professional military and intelligence officers.

The President needs to do what he often talks about, which is provide strong leadership, says Ignatius. The way Bush works to get his way isn’t leadership; it’s bullying. And when bullying doesn’t work, he lies, and bypasses Congress and the courts and the Constitution and anyone else he doesn’t want to bother about actually leading. Real leadership is haaaarrd work, you know.

See also Bruce Ackerman,” The Secrets They Keep Safe” in Slate.

Doesn’t Sound Good

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Doug Struck of the Washington Post reports that Iraqi Sunnis claim last week’s election was rigged.

Sunni and secular political parties angrily claimed Tuesday that Iraq’s national election was rigged, threatening to leave in shambles the delicate plan to bring Iraq’s wary factions together in a new government.

Faced with an emerging strong victory by the religious Shiite group that has close ties to Iran, the minority Sunnis demanded a new election and hinted darkly that the violence of the insurgency would be accelerated by the suspicions of fraud.

Early voting results announced by Iraqi electoral officials yesterday, reflecting two-thirds of the ballots, showed religious (mostly Shiite) groups taking a commanding lead. Today, with 95 percent of votes counted, it appears conservative religious Shiite groups will dominate the parliament and the selection of the country’s prime minister.

Former prime minister Ayad Allawi, whose secular slate appeared likely to take a small, fourth-place role in the government, also questioned the results of Thursday’s polling and called a meeting for Wednesday of other groups angry with the outcome.

And Salah Mutlak, who headed an independent Sunni slate, said, “I don’t think there is any practical point for us for being in this National Assembly if things stay like this.”

This is not a positive development, I suspect.

Real Resolve

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Resolve is one of President Bush’s favorite words. You can choose any of his speeches on the war on terror, or Iraq, and you’ll find that the transcript is larded with the R word.

A random example, Bush’s speech from December 12:

I’ve come to discuss an issue that’s really important, and that is victory in the war on terror. And that war started on September the 11th, 2001, when our nation awoke to a sudden attack.

Like generations before us, we have accepted new responsibilities. We’re confronting dangers with new resolve. We’re taking the fight to those who attacked us and to those who share their murderous vision for future attacks.

We will fight this war without wavering, and we’ll prevail.

But what the hell does “confronting dangers with new resolve” mean? What has actually been asked of us? With the exception of the sacrifices made by our soldiers and Marines … nothing. We go on with our lives just as before. We are not buying liberty bonds, growing victory gardens, knitting socks or rolling bandages for the troops. As illustrated by the World War I-era posters, in past wars citizens were asked to at least give up some extravagances for the war. Today the president and the Republicans in Congress won’t even consider raising taxes to pay for their war. Instead, they’ll shift the burden to the future. Our children will thank them, Im sure.

So what is Bush asking of us, except to trust him? Is that what we’re supposed to be “resolved” about?

All over the Right Blogosphere today the righties argue that Bush must be allowed unprecedented presidential powers because we are fighting terrorists. And terrorists are scary. They killed people on 9/11. They might kill more people, like me. I’ll gladly trade some civil liberties for safety.

In today’s Boston Globe, H.D.S. Greenway writes that fear is distorting our judgment.

I have no doubt that one day the Bush administration’s curtailment of civil liberties, especially the torture of prisoners, will be looked back on as a national shame. I never would have thought I would live to see the day when the president of the United States would threaten to veto a bill in Congress to ban torture, or when the vice president would spend his days lobbying Congress in favor of torture. That little shop of horrors, the vice president’s office, seems to be the place where fear regularly gains ascendancy over good judgment.

The Bush administration’s predilection to torture was clearly a result of mind-clouding fear caused by the greatest terrorist attack in history on Sept. 11th, 2001. The same can be said of the excesses of the Patriot Act, and, too, the decision to use the National Security Agency to spy on American citizens without benefit of warrant as required by the Foreign Intelligence Surveillance Act.

The Bush administration has shamelessly used fear to get its way. Both the president and vice president have tried to picture a withdrawal from Iraq as resulting in an Al Qaeda takeover of Iraq, and an Al Qaeda-led Caliphate stretching across the Muslim world. In reality al Qaeda hasn’t the remotest chance of taking over Iraq, not with 80 percent of the population either Kurdish or Shi’ite, and a timely end to American occupation might sooner lead to an Iraqi-Sunni disenchantment with foreign terrorists.

Today, righties are frantically patching together byzantine legal arguments in favor of trusting Bush. In every case, when you read deeply, you see their concern is not for the integrity of the Constitution, but the integrity of their skins. Here’s an example; keep reading to the conclusion —

I’m just guessing here, but I suspect that we have technology in place that allows us to begin intercepting phone calls within a matter of minutes after we learn of a phone number being used by an al Qaeda operative overseas. My guess is that there is a system into which our military can plug a new phone number, and begin receiving intercepts almost immediately. I hope so, anyway; and I’m guessing that the disclosure of this system to al Qaeda is one of the reasons why President Bush is so unhappy with the New York Times. If we do have such a technology, it certainly would help to explain the remarkable fact that the terrorists haven’t executed a successful attack on our soil since September 2001. And the disclosure of such a system, by leaking Democrats in the federal bureaucracy and the New York Times, makes it more likely, by an unknowable percentage, that al Qaeda and other terrrorist organizations will launch successful attacks in the future.

Translation: I don’t know what Bush is doing, but I want him to keep doing it to protect me from the terrorists.

This is not “resolve,” people. This is cowardice. This is being a herd of frightened beasts stampeding off a cliff.

My dictionary says resolve means “Unwavering firmness of character, action, or will.” I say that real resolve is not letting fear gut the Constitution.

Last June Lance Mannion wrote, “[t]hat’s why the Right hates the Left these days. We aren’t as afraid as they are. They hate us for our freedom from fear.” And now the righties are waxing hysterical because the jihadists are here! These little niceties about warrants and laws are a luxury we don’t have!

To which I say, first, no one is saying that we shouldn’t conduct surveillance on suspected terrorists. But the Bush Administration has yet to explain (to anyone’s satisfaction but a terrorized rightie’s) why it bypassed FISA, or if there was a problem with FISA why it didn’t go to Congress to make new provisions for oversight. So the argument that insisting on these constitutional niceties will make us more vulnerable to terrorist attacks just doesn’t wash. We are not choosing between safety and liberty; we are choosing between tyranny and liberty.

But what if, in some remote stretch of possibility, putting some limits on The Emperor Bush actually did increase risk of terrorist attack? I do not believe this is true, but let’s pretend. Isn’t standing on principle, even in the face of danger, the very essence of resolve? Shouldn’t we be facing terrorism with “unwavering firmness of character, action, or will” intead of running to Big Brother for protection?

White Noise

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Rightie apologists for the Bush Administration today are churning out copious amounts of verbiage to cover Bush’s ass. Here’s a good example at The Volokh Conspiracy. The writer, Orrin Kerr, piles on nouns, verbs, prepositional phrases, parenthetical citations — enough rhetorical fog to hide Cleveland — to present the appearance of an argument that spying on Americans without a warrant is perfectly legal.

This sort of argument by volume works nicely on righties, I’ve noticed. And they’ll all link to this shit and repeat it, even if they don’t quite understand it. There must be a pony in there somewhere.

And I say that if what Bush is doing is perfectly legal, then the Bill of Rights ain’t worth the paper it’s written on. As John Aravosis noted yesterday, if we applied the same hairsplitting analysis to the Second Amendment, some future President could arbitrarily cancel the Second Amendment and start confiscating firearms without due process of law. In the name of national security, of course.

End of argument. If you aren’t persuaded, several of the links below will lead you to more detailed explanations of the law.

Eugene Robinson, “Imperial Assumptions”

E.J. Dionne, “Their Own Patriot Act”

George Will, “Why Didn’t He Ask Congress?”

Richard Cohen, “Enough. Let’s Try ‘Accountability'”

WaPo editorial, “Unauthorized Snooping”

NY Times editorial, “The Fog of False Choices”

David Cole, “Bush’s Illegal Spying”

Boston Globe editorial, “Taking Liberties”

Charlie Savage, “Bush Bypassed Compliant Court on Wiretapping”

H.D.S. Greenway, “Fear Distorting the Rule of Law“

War Powers

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Jonathan Alter proves that there’s still a free press.

President Bush came out swinging on Snoopgate—he made it seem as if those who didn’t agree with him wanted to leave us vulnerable to Al Qaeda—but it will not work. We’re seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War. …

… 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.

Thirdparty at Kos has some questions about this meeting, here. Alter continues:

The problem was not that the disclosures would compromise national security, as Bush claimed at his press conference.

I heard several cable television commenters make this same point throughout the day … we have not been told how the NSA snooping is taking place, only that it is. And certainly terrorists communicating with people inside the U.S. must have realized the feds would likely monitor their emails and phone calls. So how in the world has national security been compromised?

No, Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker. He insists he had “legal authority derived from the Constitution and congressional resolution authorizing force.” But the Constitution explicitly requires the president to obey the law. And the post 9/11 congressional resolution authorizing “all necessary force” in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.

Exactly.

The flip side of what Alter says can be found at Protein Wisdom, where Jeff Goldstein quotes Dr. Walid Phares:

The question is clear: Are we or are we not at war with the terrorists?

It’s not a declared war, nor a war of limited duration, which makes extraconstitutional “war powers” of the president problematic. Never before has Article II Section II been interpreted to mean that the President can grab more power for himself whenever he wants for as long as he wants because he thinks it’s necessary for national security. During times of invasion or other emergencies the president temporarily may act without consent of Congress. And, yes, Lincoln and FDR both took on expanded “war powers” during the Civil War and World War II. But the “war on terror” could last generations, and it’s so hazily defined that we cannot agree among ourselves who we are fighting or what “victory” will look like. For these reasons Bush must be held in tighter check than Lincoln or FDR, neither of whom overreached nearly as much as Bush has.

While jihadist cells are constantly spying to find chinks in America’s infrastructure, President Bush’s critics are concerned about how America is watching the terrorists. So far, I haven’t heard a critic asking who are we watching?

Actually, a lot of us have asked who the NSA is watching. And a lot of us suspect it isn’t just alleged terrorists.

And here comes the Big Daddy of straw men:

Or anyone requesting an update as to how many terrorists are within the U.S. So, in sum, they want the government to “catch” the terrorists but not to “watch” them. I must admit that if the 9/11 Commission was right on target regarding some fellow Americans; it is about “lack of imagination.” For till further notice, I am not able to figure out how the U.S. can catch the jihadist terrorists if it doesn’t monitor them.

See, nobody is saying we shouldn’t conduct surveillance. We are saying the surveillance must be conducted within constitutional parameters, and so far the President and his crew have not shown one good reason why they had to go outside FISA to snoop on Americans.

And how can the defense and security institutions monitor an enemy in a state of war, if it provides them with the knowledge and the technology it is using.


But that hasn’t happened. I haven’t seen a single news story that provides information about what technology is being used or how the surveillance is being conducted.

I think this story is going to be with us for a while. Fasten your seatbelts.

Strict Construction?

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Fred Barbash and Peter Baker of WaPo posted this story a short time ago:

President Bush today offered his most elaborate defense yet of his administration’s domestic eavesdropping program, saying he was legally and constitutionally authorized to implement it and obligated to do so in order to protect the country from a new kind of enemy.

In a wide-ranging news conference this morning, Bush said his authority to have the National Security Agency eavesdrop without judicial involvement derived from his inherent constitutional powers as commander in chief as well as from the authorization for the use of military force approved by Congress in the wake of the attacks of Sept. 11, 2001. “Congress gave me authority,” he said.

The “inherent powers” argument is nonsense, but I think it’s fascinating the “strict constructionists” could have found powers in the Constitution no one ever noticed before. The same people who can’t see, for example, a right to privacy in the 4th Amendment certainly have developed an expansive view of Article II Section II. And they say the Constitution is not a living document. Haw.

It is true that some presidents, notably Abraham Lincoln and Franklin D. Roosevelt, have claimed extraconstitutional “war powers.” But they did so publicly, not secretly, and they did not claim a right to flat-out ignore the Bill of Rights. I believe the closest example is Lincoln’s famous usurpation of the power of Congress to suspend habeas corpus. He argued that there was an emergency (a massive insurgency and widespread civic violence) and Congress was not in session at the time. He obtained consent of Congress after the fact. See further discussion at Findlaw. But what Lincoln did, agree or not, was very much in public view.

For more on “inherent powers,” see also Armando at Kos, here and here.

As far as the “Congress gave me authority,” argument goes, I can’t see how Congress can give authority to ignore the 4th Amendment, because that’s a power Congress doesn’t have, either. And members of Congress say they did no such thing. “The president has, I think, made up a law that we never passed,” Sen. Russell Feingold said. More here.

Barbash and Baker continue,

He expressed anger at the fact that someone revealed the secret program, saying he assumed the Department of Justice would launch an investigation to determine the source of the leak. “My personal opinion is it was a shameful act for someone to disclose this program in a time of war. . . . The fact that we’re discussing this program is helping the enemy,” he said.

And he was visibly angered when a reporter asked him what limits there were on “unchecked” presidential authority during wartime. “I disagree with your assertion of unchecked power,” Bush said. “There is the check of people being sworn to uphold the law for starters. There is oversight. We’re talking to Congress all the time. . . . To say ‘unchecked power’ is to ascribe dictatorial power to the president, to which I object.”

See, there’s what President Bush says, and then there’s what President Bush does. And I think this revelation of the President’s creative “construction” of his constitutional powers should tell the Senate to be very careful about Sam Alito and other Bush judicial appointees.

“President Bush’s acknowledgment that he unilaterally approved domestic spying is the latest piece of evidence supporting complaints that his White House operates essentially unchecked by the legislative and judicial branches,” says Dan Froomkin.

Update: More from Kos and from Kieran Healy at Crooked Timber.

Update update: Digby.

And the Battle Resumed at Dawn

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Georgia10 writes at Kos that on The Today Show this morning, Attorney General Alberto “torture is what I say it is” Gonzales told Katie Couric that the president was granted the power to authorize surveillance by the authorization for war.

Reuters reports,

President George W. Bush’s decision to eavesdrop on people within the United States was backed by the U.S. Congress’ authorization of military force after the September 11, 2001, attacks, Attorney General Alberto Gonzales said on Monday.

“There were many people, many lawyers, within the administration who advised the president that he had inherent authority as commander in chief under the Constitution to engage in this kind of signals intelligence of our enemy,” Gonzales said in an interview with CNN.

“We also believe that the authorization to use force which was passed by the Congress in the days following the attacks of September 11th constituted additional authorization for the president to engage in this kind of” electronic surveillance, he said.

Georgia10 shreds this claim nicely, so I don’t have to.

See also: Scott at Lawyers, Guns and Money and Michael Bérubé.

Update: See Ezra K. at TAPPED and Atrios. Short version: What is the White House hiding?

Update update: John Aravosis speculates that the NSA was spying on journalists.

Who Knew?

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It’s hard to tell at the moment, but the righties may be retreating from the “what Bush did was within the FISA law” position. There’s one bitter ender here who is ignoring the point that the surveillance allegedly did involve private communications of American citizens. The “we were wrong” thing does come hard to some folks. But although they haven’t raised a white flag, this morning the righties seem to have redeployed to a new battlefield.

Which is: How many senators knew about the surveillance? And if they knew, why didn’t they speak up sooner?

Yesterday the Associated Press reported that Sen. Harry Reid was briefed on the extralegal surveillance “a couple of months ago,” and “whoever disclosed the existence of the surveillance program should be prosecuted.” This rightie blogger jumped in with “Which means that: (1) Reid ADMITS was informed as soon as he took over Dem Senate leadership from Daschle, (as we should expect); and (2) he accepts that the disclosure of this was a crime.”

Reid took over Dem Senate leadership from Daschle nearly a year ago, not a couple of months ago. Maybe the White House briefers were behind schedule. Should the “leaker” be prosecuted? As I understand the law, the liability falls only on people within the government who disclose classified information. I suspect that whoever let the New York Times know what was going on — “Nearly a dozen current and former officials,” according to Risen and Lichtblau — might be in violation of law regarding classified material, and Senator Reid would have been in violation of law had he disclosed it. The New York Times, however, would not be in violation for printing the story. And once the story was public Senator Reid was free to talk about it.

Please note that I don’t claim to be a lawyer. I could be mistaken.

Shakespeare’s Sister reports that some “media analyst” on Fox News said that senators who are now critical of the program were briefed about it before it started. But there seems to be disagreement on this point. Barton Gellman and Dafna Linzer write in yesterday’s Washington Post that

A high-ranking intelligence official with firsthand knowledge said in an interview yesterday that Vice President Cheney, then-Director of Central Intelligence George J. Tenet and Michael V. Hayden, then a lieutenant general and director of the National Security Agency, briefed four key members of Congress about the NSA’s new domestic surveillance on Oct. 25, 2001, and Nov. 14, 2001, shortly after Bush signed a highly classified directive that eliminated some restrictions on eavesdropping against U.S. citizens and permanent residents.

However,

Former senator Bob Graham (D-Fla.), who chaired the Senate intelligence committee and is the only participant thus far to describe the meetings extensively and on the record, said in interviews Friday night and yesterday that he remembers “no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States” — and no mention of the president’s intent to bypass the Foreign Intelligence Surveillance Court.

So we’ve wandered into “he said, she said” territory. Dicey.

Risen and Lichtblau report today that

Secretary of State Condoleezza Rice on Sunday defended President Bush’s decision to secretly authorize the National Security Agency to eavesdrop on Americans without seeking warrants, saying the program was carefully controlled and necessary to close gaps in the nation’s counterterrorism efforts.

In Sunday talk show appearances, Ms. Rice said the program was intended to eliminate the “seam” between American intelligence operations overseas and law enforcement agencies at home.

“One of the most compelling outcomes of the 9/11 commission was that a seam had developed,” Ms. Rice said on “Meet the Press” on NBC. “Our intelligence agencies looked out; our law enforcement agencies looked in. And people could – terrorists could – exploit the seam between them.”

The article goes on to quote a number of lawyers and security experts who say they have no idea what Rice was talking about. In an emergency, warrants can be obtained in minutes from the secret FISA court, and can even be obtained after surveillance has begun. Either the Bushies are hiding something, or they just don’t like to mess around with paperwork.

I Couldn’t Watch

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I sat through three of the four “pre-Iraqi-election” Bush speeches. I should get a medal for that. I can’t take any more, though.

Commentary can be found here: Ezra Klein, AMERICAblog, and firedoglake.

Here’s a post by Amanda at Pandagon that’s not about the speech, but read it anyway.

Update: Steve Gilliard has two speech posts, here and here. That second one is gonna really piss off the wankers.

Update update: Oliver Willis asks, “Can anyone tell me why he looked like he was directing airline traffic?” I didn’t watch, but other recent Bush TV appearances made me wonder if they’ve adjusted his meds.