Attorney General Alberto Gonzales, appearing in front of the Senate Judiciary Committee, has been testifying today about the NSA surveillance program.  He gives a legal defense of the program in this morning's Wall Street Journal and then concludes:

The NSA's terrorist surveillance program is narrowly focused on the international communications of persons believed to be members or agents of al Qaeda or affiliated terrorist organizations. The terrorist surveillance program protects both the security of the nation and the rights and liberties we cherish. As the president said in his State of the Union speech, "the terrorist surveillance program has helped prevent terrorist attacks. It remains essential to the security of America." When I testify before Congress today, I will tell them not only that the president had the authority to use this effective antiterror tool, but that it would have been irresponsible for him not to employ this weapon to prevent another attack on our country.

Ann Althouse says we've heard it already:

We already know this is the argument. We also know the argument of those who oppose the program. What will be interesting today will be to see how well Gonzales will be able to defend the program under hard questioning and how far the Senators will be willing to go when they know that part of the answer, explicit or insinuated, will inevitably be that if they oppose the program they do not care enough about national security. 

Meanwhile, conservative radio host Neal Boortz is undecided on the issue.  Although he agrees with Gonzales that the program may be necessary, he remains unconvinced on its legality.  He still manages to take a few shots at the Democrats for their partisanship on the issue and asks two questions for those who are adamantly opposed to the surveillance program:

1.  Do you think that it is OK for our intelligence agencies to monitor enemy communications while we're at war?
2.  If you think that it is OK to listen to enemy communications, do you then withdraw your approval if the enemy happens to be communicating with an American citizen?

From the left, Matthew Yglesias is also concerned about partisanship.  But he wonders whether it's gotten so bad that the Republicans are prepared to sign their authority over to the White House. 

Glenn Greenwald has been live-blogging the hearings and gives high marks to Sen. Patrick Leahy for his questioning.  At the Volokh Conspiracy, law scholar Orin Kerr weighs in on Gonzales' claims concerning the president's inherent authority to conduct surveillance.

Hugh Hewitt says he hopes the Senators are forced to vote on the matter.

Posted by Nick Nordseth at 03:44 PM | Email Author | Permalink

The Los Angeles Times does not have a reputation for producing poll results that tend to favor President Bush. And indeed, their new poll does have plenty of bad news for the president, especially when you look at how self-described independents respond to various questions about his handling of a whole host of issues. Bush has clearly lost a decent amount of support from this group over time, and I don't think that comes as a surprise to anyone.

However, the most interesting results are found when you look at how these same self-described independents respond to questions about national security and about Congress. Here are a few examples:

> When asked who they "trust to do a better job of protecting the nation against terrorism"  Independents favored Bush over Democrats in Congress by 19 points.

> When asked whether they agree with those seeking to reauthorize the Patriot Act, 55% of Independents said they agree with reauthorization, 42% said they disagree.

> When asked whether people "should be willing to give up some of their civil liberties so the government can keep the country safe from terrorism", 50% of Independents responded "yes" while 43% said "no."

> 54% of Independents think hearings should be held to investigate the NSA program, but only 41% think impeachment would be warranted if those investigations concluded the President broke the law (that number is 39% overall).

> Independents give Congress nearly as low of a job approval ratings as self-described Democrats do, 32% vs 30% respectively, but when asked about favorable and unfavorable ratings for the two parties, Independents give Congressional Democrats a only a 31% favorable rating (41% unfavorable) while they give Congressional Republicans a 38% favorable rating (34% unfavorable).

> When asked which party in Congress had "higher ethical standards," Independents gave both parties low marks (Republicans 8%, Democrats 5%) with 79% concluding there is "no difference" between the two. That was 11 points higher than overall.

To summarize, based on the results of this poll (and keep in mind it is only a single poll, though it does comport with other data we've seen recently) Independents aren't thrilled with President Bush and they don't have particularly warm feelings toward Republicans in Congress. However, they seem to have an even lower regard for Congressional Democrats and, even worse, they seem to continue to lack confidence in the Democratic party on matters of national security.

Posted by Tom Bevan at 08:51 AM | Email Author | Permalink

Yesterday I promised to offer some more thoughts on the NSA story. The thing that's been nagging me about this story is the timing. We know Risen brought the story to his editors at The New York Times in October 2004 and they took a pass. Given that by that time the NSA surveillance program had already been active for somewhere between one and two years, only a complete fool would believe the timing to be a coincidence. Obviously, the intention was for the story to have maximum impact on the Presidential election. That leaves us with three basic options:

Option 1: Russell Tice, who has now come forward as one of Risen's sources and a "whistleblower" in the case, wanted to damage Bush's reelection. This explanation doesn't make sense for a number of reasons. Tice may have had a bone to pick with the NSA, but so far there doesn't seem to be any evidence he harbored ill will directly toward President Bush. Nor do we have evidence so far that Tice was partisan in any way – unlike fellow "whistleblower" Joe Wilson.  Furthermore, if Tice's main motivation was to damage President Bush, he could have easily gone public or leaked his story to any number of other media outlets that would have published the story prior to the election.

Option 2: James Risen had motives for the timing of the story. This is certainly plausible, and Risen's reasons could have been either political (wanting to see John Kerry elected) or professional (he saw increased odds of winning a Pulitzer by dropping such an explosive story during a time of high interest). Or maybe it was a little of both.

Option 3: Some as yet unidentified source or sources engineered the timing of the story.

If we are looking for the motives behind a story intended to do political damage, and we work under the assumption that all parties involved in this affair were acting rationally and in their own self interest, then it follows that the people most likely to be involved would be ones who care most about political outcomes - in other words, partisan operatives and politicians.

We’ve already established that there is little evidence so far suggesting Russell Tice is a partisan, and while James Risen may not have been a big fan of Bush and was complicit in the timing of the story, it’s safe to assume his primary self interest was to get a big scoop with his name on it into print. That leaves us pondering who else among Risen's dozen or so sources would have partisanship as a compelling interest.

Given that this was such a secretive program, the list of people who would have had the knowledge of the NSA surveillance operation and the motivation to put Risen onto this story would be pretty short.

We know, for example, that the White House only briefed a handful of Congressional leaders on the matter. We also know that two of the Democratic members who were made aware of the NSA program, Senator Jay Rockefeller and Congresswoman Nancy Pelosi, wrote and sealed letters at the time expressing their concerns and objections.

Finally, we also know from a strategy memo discovered in late 2003 written by a staffer of the aforementioned Senator Rockefeller – the ranking member on the Senate Intelligence Committee – that Democrats were actively exploring options to damage President Bush’s reelection by “pulling the trigger” on an independent counsel investigation on intelligence-related issues in 2004.

This is, of course, nothing more than informed speculation. But the timing of all the different elements surrounding the NSA story suggests Risen was fed this story by people with partisan motivations. Hopefully the Justice Department investigation will help get to the bottom of it all.

Posted by Tom Bevan at 03:52 PM | Email Author | Permalink

Gabriel Sherman of the NY Observer reports on the behind-the-scenes machinations of James Risen and the New York Times on the NSA story:

Ever since the appearance of Mr. Risen’s Dec. 16 piece, co-written with Eric Lichtblau, rumor and speculation have surrounded the relationship between the article and Mr. Risen’s book, State of War: The Secret History of the C.I.A. and the Bush Administration, which was published early this month. The Drudge Report implied that the paper had timed the wiretapping scoop to promote Mr. Risen’s book; the Huffington Post fueled criticism on the left that The Times had stifled the story for a year out of deference to the Bush administration.

 

In fact, sources familiar with the Times’ Washington bureau describe a more complicated relationship than either scenario: When they decided to send the long-gestating N.S.A. piece to press in December, Times editors couldn’t confirm whether Mr. Risen’s manuscript contained the wiretapping story or not. In the end, they didn’t see the book until a week before it was in bookstores.

 

Through several months in late 2005, Mr. Risen and bureau chief Phil Taubman had clashed over whether Times editors would get a preview of the book’s closely guarded contents, sources said. It was not until Dec. 27—11 days after the wiretapping story had run—that Mr. Risen relented and allowed Mr. Taubman to see the manuscript. Mr. Risen insisted that senior editors who viewed the pre-publication copy sign nondisclosure agreements and agree not to discuss the book’s contents.

Posted by Tom Bevan at 06:42 AM | Email Author | Permalink

Words of sanity - and caution - on the NSA surveillance investigation from a partisan Democrat:

"It [the NSA story]could play to the image of a president who is overreaching and not succeeding -- going to war without a clear purpose or credible proof in retrospect, isolating America, wiretapping," Democratic pollster Doug Schoen said.

But he said without evidence of a broader pattern of domestic surveillance by the administration the issue was unlikely to play a big role in November's elections, when control of Congress will be at stake.

"We're a long way away from saying this is a front-burner, hot-button issue that would have an impact on the elections," Schoen said.

"If it is just about Al Qaeda and terrorism, I'm not sure it is a positive for the Democrats. If there is a degree of overreaching by Bush that goes beyond that, then we have an issue," he said.

Many Democrats foolishly assumed from the beginning - without knowing anything more than the vague outlines initially reported by the New York Times - that the NSA surveillance story was a serious negative for President Bush. It just had to be.

Despite not having a clue about the depth or the scope of the program - or any well-founded sense about how the average American would react to it - prominent Democrats like Howard Dean raced forward to say insane things like, "We haven't seen this kind of abuse of power since Richard Nixon."

One the worst (but most frequent) mistakes made in politics is to jump to unfounded conclusions and overplay your hand. Democrats have turned this into something of a high art during the Bush presidency, and we're well down the path to see it happening again.

The more prudent course for Democrats would have been to abstain from making snap judgments based on news reports, wait and see what sort of details come out at the hearings, and then decided whether to blow the issue up. But that would require patience and the ability to focus on something less immediate than trying to damage Bush in the next round of headlines - neither of which have been the Democrats' strong suit in recent years.

Posted by Tom Bevan at 11:50 AM | Email Author | Permalink

Unbelievable.  Yet more top secret, national security related programs leaked to the press. This time, U.S. News & World Report does the deed:

In search of a terrorist nuclear bomb, the federal government since 9/11 has run a far-reaching, top secret program to monitor radiation levels at over a hundred Muslim sites in the Washington, D.C., area, including mosques, homes, businesses, and warehouses, plus similar sites in at least five other cities, U.S. News has learned. [snip]

The nuclear surveillance program began in early 2002 and has been run by the FBI and the Department of Energy's Nuclear Emergency Support Team (NEST). Two individuals, who declined to be named because the program is highly classified, spoke to U.S. News because of their concerns about the legality of the program. At its peak, they say, the effort involved three vehicles in Washington, D.C., monitoring 120 sites per day, nearly all of them Muslim targets drawn up by the FBI. For some ten months, officials conducted daily monitoring, and they have resumed daily checks during periods of high threat. The program has also operated in at least five other cities when threat levels there have risen: Chicago, Detroit, Las Vegas, New York, and Seattle. (emphasis added)

This is insane. Can we not settle the legality of these types of programs in private? Or must we reveal every method we're employing for national security to the world, handicapping our ability to protect ourselves because of the willingness of one or two people to leak highly classified information out of "concerns" that may or may not turn out to be valid? As with the NSA case, the leakers should be rounded up and prosecuted to the full extent of the law. Past war-time Presidents must be spinning in their graves over what is happening today.

Posted by Tom Bevan at 11:37 AM | Email Author | Permalink

Former Clinton Associate Attorney General John Schmidt says Bush's decision to authorize NSA eavesdropping is perfectly legal. John Hinderaker of Powerline cites Schmidt before asking the reporters from the New York Times to clarify whether they are aware of current case law and if they can cite any authority to back up their implication the NSA's program is illegal.  Hinderaker is pulling together a post which should make clear the legality of the program under current case law is beyond dispute. We'll post it when we get it.

UPDATE: Here are parts two and three to Powerline's discussion of the legality of the NSA program. 

Posted by Tom Bevan at 04:26 PM | Email Author | Permalink

Posted by Tom Bevan at 03:56 PM | Email Author | Permalink

This might seem like a silly question, what with Congress just now starting to gnash its teeth and gearing up to launch hearings on the NSA program. But consider the following items:

Item one: this morning James Risen and Eric Lichtblau follow up their "blockbuster" story last Friday by reporting that it's likely a few fully domestic calls have been snared during the course of the NSA's secret program:

But in at least one instance, someone using an international cellphone was thought to be outside the United States when in fact both people in the conversation were in the country. Officials, who spoke on condition of anonymity because the program remains classified, would not discuss the number of accidental intercepts, but the total is thought to represent a very small fraction of the total number of wiretaps that Mr. Bush has authorized without getting warrants. In all, officials say the program has been used to eavesdrop on as many as 500 people at any one time, with the total number of people reaching perhaps into the thousands in the last three years.

The article does nothing to further the impression that the Bush administration has been involved in widespread, abusive eavedropping that is somehow trampling on the civil liberties of average law-abiding Americans. In fact, it does the opposite, suggesting that 1) the NSA has been very judicious in its use of resources and 2) it is an exceedingly difficult job for even the most advanced experts we have to try and keep up with possible terrorist-related communications in today's complex technology environment.

Item two: Drudge is headlining a report that while in office both Clinton and Carter signed executive orders authorizing domestic surveillance without a court order. Needless to say, revelations like this - which never seem to be reported initially - tend to strip the sensationalist shine off the NSA surveillance story rather quickly and put it more context.

Item three: Having been scooped on the NSA story altogether, the best the Washington Post can do today is to report that a Clinton-appointed FISA judge submitted his resignation yesterday - possibly as a protest to revelations about the NSA program. This story may be news, but the fact the Post slapped it above the fold on A1 instead of on A10 where it belongs suggests a rather forced effort to 1) join the frenzy and 2) give this story some additional legs.

Where does this leave us? The story certainly isn't going away any time soon, but that doesn't mean it may not end up filed away in the "more heat than light" category in retrospect.  Some Congressional Democrats have predictably (and foolishly) jumped out to far edge of the political envelope with loose talk about impeachment (as have liberal members of the media like Joe Conason) but that's nothing more than a deranged fever-swamp fantasy.

Where this story goes depends on the details, of course, many of which we won't know for some time. But if the administration is on even the thinnest plot of Constitutional ground (my impression is that they are, though I'm not a legal expert), then it's hard to see the story going very far.  What's more, Vice President Cheney may be right about the final result: "So there's a backlash pending, I think the backlash is going to be against those who are suggesting somehow we shouldn't take these steps in order to defend the country."

Posted by Tom Bevan at 08:11 AM | Email Author | Permalink

Liberal blogger Will Bunch says "Bush gamed the media to get re-elected in 2004" and suggests that by not running the NSA story the New York Times helped him win last November:

It's too early to gauge reaction, but we expect that it [the NSA story] will be highly negative, not just from the usual suspects on the left but also from the vast political middle -- the heartland types who just barely propelled Bush to re-election in 2004.

And there lies the real story behind the story. Because it appears it may have been possible for the Times to publish at least some of the details of the Bush-ordered domestic spying before Nov. 2, 2004, the day that the president nailed down four more years. Although Bush won by 2 percent nationally, a switch of just 59,302 Ohio voters from Bush to John Kerry would would have put the Democrats back in the White House.

Would Bush won the election if the extent of his seemingly unconstitutional domestic spying had been known? We'll never know.

Here we see more evidence that the left is much closer to being divorced from reality than it is to being "reality-based."  Not to beat a dead horse, but as John has now stated twice in the last two days (here and here), liberals really don't have a clue how bad of an issue this is for them politically.

If the New York Times had published this story prior to the 2004 election it would have been a disaster for John Kerry. Kerry would have looked weaker than ever spouting legalisms and spinning the nuances of Constitutional law while Bush stood there telling the folks he was doing everything he could to protect them from the evil-doers. 

How do we know this is so? Because the election in November was fundamentally about strength on national security, and the country judged Bush superior to Kerry in that regard. Remember the lead Bush jumped out to after the Republican National Convention and the anniversary of September 11? Now imagine what Zell Miller would have said about John Kerry opposing an NSA program to monitor suspected terrorist-related calls.

Remember also that even as the race tightened down the stretch, the final nail in Kerry's coffin was the appearance of a videotape of Osama bin Laden.  Kerry tried to counter the tape with some macho mumbo-jumbo about tracking bin Laden down himself, but it was too little too late. The public simply didn't trust John Kerry to do as good of a job protecting the country as Bush. The NSA surveillance story would have only made the choice that much more clear to voters and, contra Bunch's suggestion, it probably would have showed in the results.

A final bone to pick: the implication being made by Arianna and others that the New York Times was somehow in the tank for the Bush administration gives the word "ludicrous" a bad name. This the same paper that blacked out the Swift Boat Veterans story for more than two and half weeks before running a front page story attacking the connections between the Swiftees and Karl Rove. If memory serves it's the same paper that colluded with CBS News on the timing and publication of the National Guard fake document story that exploded into Memogate. And it's the same paper that dumped the dubious, anonymously-sourced story of al-Qaqaa on the front page just eight days before the election.

Liberals can fume over The Times' decision to sit on this story, but all likelihood Keller & Co. did Democrats a favor by not running it before last year's election.

Posted by Tom Bevan at 05:31 PM | Email Author | Permalink