A FISA Quotabull

Liability protection is critical to securing the private sector’s cooperation with our intelligence efforts. … The Senate has passed a good bill and it has shown that protecting our nation is not a partisan issue.

— President Bush, Feb. 13.

In a presidency of hypocrisy — an administration of exploitation — a labyrinth of leadership — in which every vital fact is a puzzle inside a riddle wrapped in an enigma hidden under a claim of executive privilege supervised by an idiot — this one … is surprisingly easy. President Bush has put protecting the telecom giants from the laws … ahead of protecting you from the terrorists. He has demanded an extension of the FISA law — the Foreign Intelligence Surveillance Act — but only an extension that includes retroactive immunity for the telecoms who helped him spy on you.

— MSNBC commentator Keith Olbermann, Jan. 31.

The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. . . .

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. . . . The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. . . .

The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times.

— from the U.S. Supreme Court decision in Youngstown Co. v. Sawyer, 343 U.S. 579 (1952); the decision involved President Truman’s attempt to seize control of steel mills that were gripped by strikes.

Some people around here get cold feet when threatened by the administration.

— Sen. Patrick Leahy, D-Vt., who sought a “a much more restrictive set of surveillance measures”; Feb. 13.

Congress’s overriding goal here is to further hamstring our intelligence war-fighters with legal rigidity and complexity, but to do so in a way that dodges its own oversight duties by passing the buck to FISA judges. White House lawyers know this is unconstitutional, but intelligence officials say it’s more important to have Congress’s blessing for these wiretaps. And because the telecom companies won’t cooperate without immunity, Mr. Bush is being bullied into trading away some of his own power to get that immunity.

— Wall Street Journal editorial, Feb. 11.

“Just trust us” is not an acceptable substitute for the rule of law in this democracy.

— San Francisco Chronicle editorial, Oct. 23.

In addition to providing a get-out-of-court-free card for companies such as AT&T and Verizon, the bill also largely legalizes Bush’s secret wiretapping program, by letting the NSA spy inside American telecom and internet infrastructure without getting court approval or having particular targets in mind.

— Wired’s Threat Level; Feb. 13.

The fact that the Supreme Court has never found a commander-in-chief function that could not be regulated by Congress does not mean, of course, that there are no limits on Congress’ power. If Congress sought to micromanage the war by assigning authority to lead the troops to someone outside the president’s chain of command and subject to congressional removal, for example, its actions would likely be unconstitutional. But the notion that Congress cannot protect the privacy of Americans during wartime by requiring the president to obtain a warrant before spying on Americans is entirely unprecedented—unless, that is, you consider the bare assertions of Richard Nixon a precedent.

— from “The Nixon Doctrine” by David Cole of Slate; Feb. 13, 2006.

The House’s failure to pass the bipartisan Senate bill would jeopardize the security of our citizens. As Director McConnell has told me, without this law, our ability to prevent new attacks will be weakened. And it will become harder for us to uncover terrorist plots. We must not allow this to happen.

— President Bush, Feb. 13.

Simply put, it was wrong for the president to suggest that warrants issued in compliance with FISA would suddenly evaporate with congressional inaction. Instead — even though Congress extended the Protect America Act by two weeks — he is using the existence of the sunset provision to cast his political opponents in a negative light. For this president, fear is an easier political tactic than compromise. With FISA, he is attempting to rattle Congress into hastily expanding his own executive powers at the expense of civil liberties and constitutional protections.

— commentary by Richard A. Clarke, former head of counterterrorism at the National Security Council, Feb. 1; emphasis added.

Mr. Bush and his team say they have safeguards to protect civil liberties, meaning surveillance will be reviewed by the attorney general, the director of national intelligence and the inspectors general of the Justice Department and the Central Intelligence Agency. There are two enormous flaws in that. The Constitution is based on the rule of law, not individuals; giving such power to any president would be un-American. And this one long ago showed he cannot be trusted.

— New York Times editorial, Oct. 14.

Today we watched dozens of senators, including many Democrats, capitulate to a lawless, weakened, lame duck President by passing a dangerous and unconstitutional FISA bill that allows warrantless government eavesdropping on Americans.

— ACLU Blog, Feb. 12.

Q: They don’t have to have warrants to wiretap?
MS. PERINO: That’s not what this is about, Helen. Anyone in America who would require a wiretap that — you have to go through the process of getting a warrant. This was about dealing through the FISA court to make sure that our intelligence gaps remain closed when dealing with phone calls overseas.
Q: But were the telephone companies told that it was legal to wiretap six months before 9/11?
MS. PERINO: The telephone companies that were alleged to have helped their country after 9/11 did so because they are patriotic and they certainly helped us and they helped us save lives.

— exchange between correspondent Helen Thomas and press secretary Dana Perino at a Feb. 12 press briefing.

Let’s start with a little reality check here. Much of what the NSA and the intelligence community does is in violation of some law somewhere. Indeed, much of what the military does is as well. When the NSA intercepts a communication from France to Afghanistan, it probably violates the privacy and electronic surveillance laws in both countries. When it installs alligator clips on a phone in Turkmenistan, it probably violates some local burglary or trespass law. Espionage — the staple of the CIA — is a felony in almost every nation, and a capitol offense in the U.S. In fact, it is part of the intelligence community’s job to try to get people to commit treason. So we are hardly shocked or offended that our government or any government is violating the law. What the so-called NSA domestic spying scandal addresses is whether the process violates U.S. law.

— Mark Rasch, columnist for Security Focus, Jan. 11, 2006.

Our runner-up, conservative water carrier Laura Ingraham, who just flat-out lied about The New York Times. She told Fox Noise that a Times editorial about the FISA law had included that, quote, “We should not update the surveillance law to meet current advances in technology. We are now in a blackout with some of this intelligence because of what The New York Times and what the Democrats have done.” Except that’s not what the Times editorial said. It said, in fact, the exact opposite. It insisted on updating the law to meet current advances in technology. The Times wrote, quote, “Instead of asking Congress to address this anachronism, as it should, the White House sought to use it to destroy the 1978 spying law.” This just in, conservatives don’t know how to read. They merely skim.

— MSNBC commentator Keith Olbermann, awarding Laura Ingraham runner-up as “Worst Person in the World“; Aug. 6; emphasis added.

Telecom immunity should have never taken this long to approve. The immunity covers companies who received assurances from the Department of Justice that their cooperation broke no laws, and they cooperated to help defend the US from attack. Their reward for trust and assistance should not be billion-dollar class-action lawsuits, which would have been nothing more than a back-door attempt to kneecap intelligence operations that kept this nation safe for more than six years after 9/11.

— Ed Morrissey at Captain’s Quarters blog, Feb. 12.

Congress insists still on micromanaging the president — and he, by failing to assert his authority early on, is now reduced to bargaining with Congress over minutia that will soon be as obsolete and dangerous as the underlying act is today. John Locke, no sometime civil libertarian, put it well when he observed that the foreign affairs power “is much less capable to be directed by antecedent, standing, positive Laws, than [by] the Executive.” The Federalist’s authors, James Madison, Alexander Hamilton and John Jay, all agreed. The remedy for executive incompetence or recklessness in foreign affairs is political — not legislative, much less legal. Congress, to say nothing of the courts, can no more manage such affairs than it can the economy. What better evidence than these surveillance fits and starts?

— from a Jan. 28 commentary in the Wall Street Journal by Roger Pilon, founder and director of Cato’s Center for Constitutional Studies.

Quotabull is a weekly feature of Scholars & Rogues.

8 replies »

  1. Two quick thoughts. First, whatever the editors at the WSJ are smoking, it ought to be illegal. Second, Dana Perino is dumb as a sack of hair.

  2. Aw, man. Can’t we just forget all this and talk about what’s really important? Like steroids in baseball?

  3. Congress, to say nothing of the courts, can no more manage such affairs than it can the economy.

    What, and the President can manage the economy? In what parallel universe?

  4. Sam,

    Wasn’t it to you that I said that every time I hear the Pistols’ “Pretty Vacant,” Dana Perino leaps immediately to mind?

    These neocons and their spineless, craven enablers have done more to damage our country than al-Qaeda could or would in Osama’s wildest fantasies. Somewhere he’s laughing at us and how far we’ve fallen.

  5. Great set of quotes. I’m still digesting.

    “And the Constitution is neither silent nor equivocal”

    Too bad Congress is both silent and equivocates.

  6. “. . . letting the NSA spy inside American telecom and internet infrastructure without getting court approval or having particular targets in mind.”

    Browsing for terrorists.

  7. And another thing. . .

    Am I the only one in whom the unprepossessing figure of Mike McConnell does not inspire confidence in protecting us from terrorists?