Wiretap Imbroglio

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Dec. 23 2005 5:44 PM

Wiretap Imbroglio

Bloggers continue to discuss a covert NSA surveillance policy revealed earlier this week. They also cheer plans for limited troop withdrawal from Iraq and boo the Yankees' signing of former Red Sox star Johnny Damon.

Wiretap imbroglio:Amid continued debate over a controversial surveillance policy initiated by President Bush after Sept. 11, former Senate Majority Leader Tom Daschle writes today that the senators who voted to authorize force against terrorism that year were not knowingly authorizing the use of warrantless wiretaps. In fact, he says, the Senate refused a last-minute change, suggested by the White House, that would have granted the president the same kind of war-making authority within the United States as it was granting him without.

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In a long and widely read post at conservative syndicate Power Line, attorney John Hinderaker makes the case for the legality of the wiretapping. "The only constitutional limitation on the President's power to intercept communications by Americans for national security purposes is that such intercepts be 'reasonable,' " he argues. "Is it reasonable for the administration to do all it can to identify the people who are communicating with known terrorists overseas, via the terrorists' cell phones and computers, and to learn what terrorist plots are being hatched by those persons? Is it reasonable to do so even when—rather, especially when—some portion of those communications come from people inside the United States? I don't find it difficult to answer those questions; nor, if called upon to do so, would the Supreme Court," he writes.

Others believe the issue is not so clear-cut. "The legal questions raised by President Bush's wiretapping seem to me complex, not simple," writes eminent legal thinker Cass Sunstein, at the University of Chicago Law School Faculty Blog. In a thoughtful, cautious post, Sunstein warns against rushing to conclusion; he calls the president's case "plausible," if not decisive.

Many liberals follow the lead of law professor Orin Kerr, at Volokh Conspiracy, who tentatively suggested earlier this week that the surveillance program was probably constitutional, but also probably illegal, in violation of the 1978 Foreign Intelligence Surveillance Act. "The issue is not whether the President has this authority to eavesdrop without a warrant but whether it is legal for him to do so in the face of a Congressional law which makes it a crime to engage in such conduct," writes litigator Glenn Greenwald at Unclaimed Territory. "The Administration is claiming not simply that the President has some 'inherent' authority to surveille the enemy in times of war -- a proposition that is undoubtedly correct -- but instead the much broader, more audacious claim that the President has an unregulable authority, such that he may ignore FISA's constraints," argues Marty Lederman at legal collective Balkinization. "Such a sweeping claim of presidential power to ignore all statutes regulating his behavior in warime is radical and profoundly troubling -- and, as far as I know, virtually unprecedented."

Roosevelt-progressive Bull Moose thinks that the fuss is the result of partisan jockeying ("The Moose doesn't think it's 1984"), but says the scandal nevertheless raises significant questions about the applicability of old laws to new technologies. "Now that the controversy is out in the open," he writes, "Democrats and Republicans should work together to improve and clarify the law rather than seeking retribution for past misunderstandings. The bottom line should be strengthening our national security while maintaining our liberties to the fullest extent possible."

Read more about NSA surveillance.

Withdrawal, phase 1:Speaking in Fallujah on Friday, Defense Secretary Donald Rumsfeld announced a small but perceptible reduction in U.S. forces stationed in Iraq, from 17 brigades to 15. Other military officials suggested more reductions could follow in the spring. Most bloggers who note the news are supportive; Nancy in Iraq attended the event.

"The performance of the Iraqi troops during the election and its run-up have given the Pentagon a new sense of confidence in the training of its most experienced troops, confidence shown in the dozen or more transfers of military bases in Iraq to Iraqi control," reports keen conservative Ed Morrissey at Captain's Quarters. The smaller American presence, he says, will provide a support system and act "as a tripwire for the Iranians and the Syrians to consider in their designs on Iraqi sovereignty."

"I think this is probably bigger news than it seems," writes liberal Political Animal Kevin Drum, at the Washington Monthly. "Although the initial troop reduction is small, further reductions are almost inevitable since anything else would be taken as an admission that things are getting worse in Iraq. Once this process is started, it becomes a symbol of progress and there's not much choice except to continue it. … And while I continue to think these reductions would do us even more good if we were more forthright about our plans, I suppose beggars can't be choosers. Whatever the reason, this announcement is good news."

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