Friday, December 23, 2005
Fisking Former Senator Daschle
Tom Daschle, former Senate Majority Leader, former Senator and current...(what is Tom Daschle doing now?) throws in his two cents on the NSA leaks in the Washington Post today. Here we go then with a real time analysis:
In the face of mounting questions about news stories saying that President Bush approved a program to wiretap American citizens without getting warrants, the White House argues that Congress granted it authority for such surveillance in the 2001 legislation authorizing the use of force against al Qaeda. Here is one clear divide between the parties: The Democrats always describe the targets of the wiretaps as American citizens; Republicans always describe the targets as al Qaeda operatives. On Tuesday, Vice President Cheney said the president "was granted authority by the Congress to use all means necessary to take on the terrorists, and that's what we've done." Yes, the Vice President said that, but it was by by no means the only explanation for the inherent (that is, coming from the Constitution) power the President has to order interception of foreign origin communications.
As Senate majority leader at the time, I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I have no doubt this is true because they never intended to say which types of force the President could use--it was understood that he could use all of them. I did not and never would have supported giving authority to the president for such wiretaps. So, let me get this straight, you gave the President authority to kill al Qaeda members, that is, to take away all their rights--everything they had and everything they would ever have, but the President couldn't listen in on their telephone calls? Ok, I'm clear now. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance. Ah, now I know what Tom Daschle is doing now, he's become the new Kreskin the mind reader. And notice his description of the NSA action, for the second time in the paragraph, as "domestic" surveillance. It is not domestic surveillance, it is foreign surveillance. If he doesn't even know the basics, how can he hope for us to listen to him?
On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda. But, Tom, isn't he specifically surveilling al Qaeda communications? What is your point here? Do you wrongly claim that we're not surveilling al Qaeda? Do you claim that the authorization for the use of 'necessary and appropriate force' does not include the ability to find out what al Qaeda is planning? If you ever were making sense, you've certainly lost me now.
Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.
The shock and rage we all felt in the hours after the attack were still fresh. America was reeling from the first attack on our soil since Pearl Harbor. We suspected thousands had been killed, and many who worked in the World Trade Center and the Pentagon were not yet accounted for. Even so, a strong bipartisan majority could not agree to the administration's request for an unprecedented grant of authority. OK, you didn't add the words 'in the United States.' Once more, the NSA was conducting surveillance of communications which originated outside the United States by known or suspected al Qaeda members. OUTSIDE the United States. Foreign surveillance. I knew that your mistaken belief that it was domestic surveillance would ruin your analysis.
The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress No, the administration argues that the President has inherent power (that is, from the Constitution, specifically Article II, you should read it sometime) to be the commander in chief of the Armed Forces, which have always used scouts and spies to try to learn what the enemy is doing -- but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language. More mind reading and very tepid analysis. Assume the President believed he had the inherent, but unnamed, power as commander in chief to intercept foreign communications, could he not hold that belief and still want as specific a grant of war powers as possible? Just asking.
All Americans agree that keeping our nation safe from terrorists demands aggressive and innovative tactics. I have to doubt this statement; unfortunately not all. The ones who seem unwilling to act prudently and sanely in light of the war being waged against us are largely in Tom's party. They would prefer that our Armed Forces be blinded to foreign threats so as not to give up, even theoretically, some amorphous civil rights. I prefer to retain my inalienable right to life, thank you very much, and so do most right thinking people. This unity was reflected in the near-unanimous support for the original resolution and the Patriot Act in those harrowing days after Sept. 11. But there are right and wrong ways to defeat terrorists, and that is a distinction this administration has never seemed to accept. Little projection going on there, don't you think. Instead of employing tactics that preserve Americans' freedoms and inspire the faith and confidence of the American people, the White House seems to have chosen methods that can only breed fear and suspicion. What a strawman, as if the choice was between preservation of freedom and breeding fear. The choice is between effectively fighting the war without tying our arms behind us and failing to fight the war effectively because of a fear of some future, theoretical abuse of power.
If the stories in the media over the past week are accurate, the president has exercised authority that I do not believe is granted to him in the Constitution, I have to doubt your ability to efficiently analyze the Constitution here, and the entire judiciary, most recently in In re: Sealed Case No. 02:001, is against your mis-analysis here and that I know is not granted to him in the law that I helped negotiate with his counsel and that Congress approved in the days after Sept. 11. What you think of the law is the last place we look for enlightenment, the first place we look is to the words of the law. The idea that a grant of authority to use 'necessary and appropriate force' does not include the ability to intercept foreign origin communications is a stretch, no, it's just plain silly. For that reason, the president should explain the specific legal justification for his authorization of these actions, The administration has explained it (with a little help from law savvy bloggers, many of them law professors) Congress should fully investigate these actions and the president's justification for them, and the administration should cooperate fully with that investigation. Can't the Congress just research the law? It is 100% for the President's position.
In the meantime, if the president believes the current legal architecture of our country is insufficient for the fight against terrorism, he should propose changes to our laws in the light of day. The President doesn't seem to think the current legal architecture is insufficient, the Constitution is clear and the case law all in support of what the NSA was doing. I do admit that the FISA law has not kept up with technological changes but that would be Congress's job to change it, not the President's.
That is how a great democracy operates. And that is how this great democracy will defeat
terrorism. Wow, what a finish. We defeat terrorism by foreswearing our first great advantage, our technology, with which we once secretly listened in to conversations al Qaeda had with operatives here in the United States.
As a final historical note, in WWII we broke the German and Japanese codes--they did not break ours. We listened to their radio traffic and knew almost everything they planned during the war. It was a little bit of an advantage. Did President Roosevelt need a warrant for that listening in? That's precisely what Mr. Daschle is proposing here. We are at war and the Democrats (except Joe Lieberman) just don't get it.
In the face of mounting questions about news stories saying that President Bush approved a program to wiretap American citizens without getting warrants, the White House argues that Congress granted it authority for such surveillance in the 2001 legislation authorizing the use of force against al Qaeda. Here is one clear divide between the parties: The Democrats always describe the targets of the wiretaps as American citizens; Republicans always describe the targets as al Qaeda operatives. On Tuesday, Vice President Cheney said the president "was granted authority by the Congress to use all means necessary to take on the terrorists, and that's what we've done." Yes, the Vice President said that, but it was by by no means the only explanation for the inherent (that is, coming from the Constitution) power the President has to order interception of foreign origin communications.
As Senate majority leader at the time, I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I have no doubt this is true because they never intended to say which types of force the President could use--it was understood that he could use all of them. I did not and never would have supported giving authority to the president for such wiretaps. So, let me get this straight, you gave the President authority to kill al Qaeda members, that is, to take away all their rights--everything they had and everything they would ever have, but the President couldn't listen in on their telephone calls? Ok, I'm clear now. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance. Ah, now I know what Tom Daschle is doing now, he's become the new Kreskin the mind reader. And notice his description of the NSA action, for the second time in the paragraph, as "domestic" surveillance. It is not domestic surveillance, it is foreign surveillance. If he doesn't even know the basics, how can he hope for us to listen to him?
On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda. But, Tom, isn't he specifically surveilling al Qaeda communications? What is your point here? Do you wrongly claim that we're not surveilling al Qaeda? Do you claim that the authorization for the use of 'necessary and appropriate force' does not include the ability to find out what al Qaeda is planning? If you ever were making sense, you've certainly lost me now.
Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.
The shock and rage we all felt in the hours after the attack were still fresh. America was reeling from the first attack on our soil since Pearl Harbor. We suspected thousands had been killed, and many who worked in the World Trade Center and the Pentagon were not yet accounted for. Even so, a strong bipartisan majority could not agree to the administration's request for an unprecedented grant of authority. OK, you didn't add the words 'in the United States.' Once more, the NSA was conducting surveillance of communications which originated outside the United States by known or suspected al Qaeda members. OUTSIDE the United States. Foreign surveillance. I knew that your mistaken belief that it was domestic surveillance would ruin your analysis.
The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress No, the administration argues that the President has inherent power (that is, from the Constitution, specifically Article II, you should read it sometime) to be the commander in chief of the Armed Forces, which have always used scouts and spies to try to learn what the enemy is doing -- but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language. More mind reading and very tepid analysis. Assume the President believed he had the inherent, but unnamed, power as commander in chief to intercept foreign communications, could he not hold that belief and still want as specific a grant of war powers as possible? Just asking.
All Americans agree that keeping our nation safe from terrorists demands aggressive and innovative tactics. I have to doubt this statement; unfortunately not all. The ones who seem unwilling to act prudently and sanely in light of the war being waged against us are largely in Tom's party. They would prefer that our Armed Forces be blinded to foreign threats so as not to give up, even theoretically, some amorphous civil rights. I prefer to retain my inalienable right to life, thank you very much, and so do most right thinking people. This unity was reflected in the near-unanimous support for the original resolution and the Patriot Act in those harrowing days after Sept. 11. But there are right and wrong ways to defeat terrorists, and that is a distinction this administration has never seemed to accept. Little projection going on there, don't you think. Instead of employing tactics that preserve Americans' freedoms and inspire the faith and confidence of the American people, the White House seems to have chosen methods that can only breed fear and suspicion. What a strawman, as if the choice was between preservation of freedom and breeding fear. The choice is between effectively fighting the war without tying our arms behind us and failing to fight the war effectively because of a fear of some future, theoretical abuse of power.
If the stories in the media over the past week are accurate, the president has exercised authority that I do not believe is granted to him in the Constitution, I have to doubt your ability to efficiently analyze the Constitution here, and the entire judiciary, most recently in In re: Sealed Case No. 02:001, is against your mis-analysis here and that I know is not granted to him in the law that I helped negotiate with his counsel and that Congress approved in the days after Sept. 11. What you think of the law is the last place we look for enlightenment, the first place we look is to the words of the law. The idea that a grant of authority to use 'necessary and appropriate force' does not include the ability to intercept foreign origin communications is a stretch, no, it's just plain silly. For that reason, the president should explain the specific legal justification for his authorization of these actions, The administration has explained it (with a little help from law savvy bloggers, many of them law professors) Congress should fully investigate these actions and the president's justification for them, and the administration should cooperate fully with that investigation. Can't the Congress just research the law? It is 100% for the President's position.
In the meantime, if the president believes the current legal architecture of our country is insufficient for the fight against terrorism, he should propose changes to our laws in the light of day. The President doesn't seem to think the current legal architecture is insufficient, the Constitution is clear and the case law all in support of what the NSA was doing. I do admit that the FISA law has not kept up with technological changes but that would be Congress's job to change it, not the President's.
That is how a great democracy operates. And that is how this great democracy will defeat
terrorism. Wow, what a finish. We defeat terrorism by foreswearing our first great advantage, our technology, with which we once secretly listened in to conversations al Qaeda had with operatives here in the United States.
As a final historical note, in WWII we broke the German and Japanese codes--they did not break ours. We listened to their radio traffic and knew almost everything they planned during the war. It was a little bit of an advantage. Did President Roosevelt need a warrant for that listening in? That's precisely what Mr. Daschle is proposing here. We are at war and the Democrats (except Joe Lieberman) just don't get it.
# posted by Roger Fraley @ 7:03 AM 
Comments:
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Having believed I had finally heard the last of Little Tommy, I was heartbroken to discover that some journalist had asked him to weigh in on this topic..
what he had to say, of course, was entirely predictable.
what he had to say, of course, was entirely predictable.
# posted by 
: 8:55 AM
: 8:55 AM
Great job. The Democrats have become chronically hysterical. I hope by now they remind the American public of chicken Little.
I have to wonder though, are the MSM really this gormless? As you point out, they don't even have to go to a law library these days to find a good legal analysis of the issues. I think they would rather stay ignorant.
I have to wonder though, are the MSM really this gormless? As you point out, they don't even have to go to a law library these days to find a good legal analysis of the issues. I think they would rather stay ignorant.
# posted by : 9:21 AM
: 9:21 AM
Roger:
Should there be any limits on the president's powers during wartime? What should these limits be?
Should there be any limits on the president's powers during wartime? What should these limits be?
# posted by : 10:16 AM
: 10:16 AM
" Very well written I must say - Mr Daschle ensures that he remains a "non-event" just like this NSA issue."
One may think the president violated the law or one may think the president didn't violate the law. But anyone who characterizes the issue as a "non-event" is a fool. Hell, the first thing Justice Powell said in the Keith case was "The issue before us is an important one for the people of our country and their government". How often does a Supreme Court opinion start out like that?
A true conservative would agree with that statement, as would anyone else with half of a brain.
One may think the president violated the law or one may think the president didn't violate the law. But anyone who characterizes the issue as a "non-event" is a fool. Hell, the first thing Justice Powell said in the Keith case was "The issue before us is an important one for the people of our country and their government". How often does a Supreme Court opinion start out like that?
A true conservative would agree with that statement, as would anyone else with half of a brain.
# posted by : 2:46 PM
: 2:46 PM
Roger, haven't you heard by now that "fisking" is a term used by homosexuals referring to an action which takes place between one's fist and someone else's posterior? I thought this was a family oriented blog?
# posted by : 2:51 PM
: 2:51 PM
Roger:
Do you admire Joe Lieberman because he's one of the few Democrats to whom the term chickenhawk can be applied? (Joe spent the sixties at home nice and safe under the covers). Obviously someone you can relate to.
Do you admire Joe Lieberman because he's one of the few Democrats to whom the term chickenhawk can be applied? (Joe spent the sixties at home nice and safe under the covers). Obviously someone you can relate to.
# posted by : 2:55 PM
: 2:55 PM
"One of the few"? Please, pray tell, I'm all ears: what did the military service of Harry Reid, Nancy Pelosi, Joe Biden, Chuck Schumer, Dick Durbin, Carl Levin, Cynthia McKinney, Jim McDermott, Sheila Jackson Lee, Howard Dean, Tom Daschle, Jay Rockefeller, or even Bill Clinton consist of? Was Clinton's bombing of Serbia a "chickenhawk" act? Was it supported by any "chickenhawks" among the Democrats in Congress? How about we rename this particular non-argument "the chickensh** defense"?
# posted by : 4:02 PM
: 4:02 PM
You don't understand- a chicken hawk is in favor of war, as long as somebody else, or somebody else's kids
do the fighting. None of those on your list qualify except maybe Clinton. How
many American kids were killed when he was president? Bawk, Bawk, bawk.
do the fighting. None of those on your list qualify except maybe Clinton. How
many American kids were killed when he was president? Bawk, Bawk, bawk.
# posted by : 5:18 PM
: 5:18 PM
Law Professors? I'm a real lawyer, who gets paid real money, by real clients, to go in front of real judges, and make real legal arguments. I've read all the arguments made in support of the president's position that he has unfettered authority to wiretap, and, as we say im my professsion, they don't pass the "giggle test".
# posted by : 5:27 PM
: 5:27 PM
You don't understand-a chicken hawk is in favor of war, as long as somebody else, or somebody else's kids do the fighting. None of those on your list qualify except maybe Clinton. How many American kids were killed when he was president?
So how many voted to authorize the use of force against al-Qaeda? Does that make them chickenhawks? Or is a chickenhawk just someone who is in favor of a military action of which you don't approve? As for the second question, at least 18 in Mogadishu, maybe more, and considering 400,000 were killed in WWII, I doubt that sheer numbers of casualties is a good way of determining whether a given action is acceptable or in the national interest.
Law Professors? I'm a real lawyer, who gets paid real money, by real clients, to go in front of real judges, and make real legal arguments. I've read all the arguments made in support of the president's position that he has unfettered authority to wiretap, and, as we say im my professsion, they don't pass the "giggle test".
You just described a personal injury lawyer. Got any credentials in national security law, Giggles? And would you deign to expound upon the case law cited by those who, like Cass Sunstein, think your position is a laugh riot?
So how many voted to authorize the use of force against al-Qaeda? Does that make them chickenhawks? Or is a chickenhawk just someone who is in favor of a military action of which you don't approve? As for the second question, at least 18 in Mogadishu, maybe more, and considering 400,000 were killed in WWII, I doubt that sheer numbers of casualties is a good way of determining whether a given action is acceptable or in the national interest.
Law Professors? I'm a real lawyer, who gets paid real money, by real clients, to go in front of real judges, and make real legal arguments. I've read all the arguments made in support of the president's position that he has unfettered authority to wiretap, and, as we say im my professsion, they don't pass the "giggle test".
You just described a personal injury lawyer. Got any credentials in national security law, Giggles? And would you deign to expound upon the case law cited by those who, like Cass Sunstein, think your position is a laugh riot?
# posted by : 8:09 PM
: 8:09 PM
I have yet to hear the Democrats explain how the federal government has the time and resources, much less WHY they would want to randomly spy on Americans during a time of war. It must be true -- pot does make people paranoid.
"I have yet to hear the Democrats explain how the federal government has the time and resources, much less WHY they would want to randomly spy on Americans during a time of war. It must be true -- pot does make people paranoid."
I'm not sure what the Democrats say, but Justice Powell did a pretty good job in the Keith case:
"History abundantly documents the tendency of Government- however benevolent and benign its motives- to view with suspicion those who most fervently dispute its policies. Fourth amendment protections become the more necessary when the targets of official surveilance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is accute where the government attempts to act under so vague a concept as the power to protect domestic securirty. Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparant."
I'm not sure what the Democrats say, but Justice Powell did a pretty good job in the Keith case:
"History abundantly documents the tendency of Government- however benevolent and benign its motives- to view with suspicion those who most fervently dispute its policies. Fourth amendment protections become the more necessary when the targets of official surveilance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is accute where the government attempts to act under so vague a concept as the power to protect domestic securirty. Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparant."
# posted by : 10:54 AM
: 10:54 AM
Powell also wrote this in the Keith case:
Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power.
The Keith case had to do with purely domestic organizations, not with foreign terrorists and their American-based operatives.
Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power.
The Keith case had to do with purely domestic organizations, not with foreign terrorists and their American-based operatives.
# posted by : 2:50 PM
: 2:50 PM
"The Keith case had to do with purely domestic organizations, not with foreign terrorists and their American-based operatives"
Not relevant for the issue here. The Lone Ranger raised the issue that we Americans do not have to worry about the government spying on us, because they don't have the time or the inclination during wartime. Justice Powell refuted that idiotic argument.
Moreover, the fact that Justice Powell refused to apply his incredibly strong ruling in favor of the Bill of rights ,to facts not before him, certainly does not allow disingenuious people to use the Keith case to support the president's position. In fact, its pretty easy to argue that Justice Powell's holding applies to an American citizen communicating with someone outside the country as part of an international group), the rationale is identical: except with narrowly defined exceptions not applicable here, the Constitution bars the Executive from eavesdropping on the conversation of American citizens without a warrant.
Appellate courts limit their holdings to the facts before them all the time. But to seize on such a limitation without arguing why the same rational wouldn't apply to the more expansive situation , is meaningless.
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Not relevant for the issue here. The Lone Ranger raised the issue that we Americans do not have to worry about the government spying on us, because they don't have the time or the inclination during wartime. Justice Powell refuted that idiotic argument.
Moreover, the fact that Justice Powell refused to apply his incredibly strong ruling in favor of the Bill of rights ,to facts not before him, certainly does not allow disingenuious people to use the Keith case to support the president's position. In fact, its pretty easy to argue that Justice Powell's holding applies to an American citizen communicating with someone outside the country as part of an international group), the rationale is identical: except with narrowly defined exceptions not applicable here, the Constitution bars the Executive from eavesdropping on the conversation of American citizens without a warrant.
Appellate courts limit their holdings to the facts before them all the time. But to seize on such a limitation without arguing why the same rational wouldn't apply to the more expansive situation , is meaningless.
# posted by : 3:48 PM
: 3:48 PM << Home
