The Joe Klein Smackdown
I never got around to blogging this story (though many others, including our friends AJ, Sister Toldjah, and the MinuteMan, covered it well). Still, I can’t resist pointing you to the remarkable piece by Joe Klein of TIME, who positively skewers the Democrats over their own deception and weakness regarding the NSA and the Patriot Act.
Said Klein (but read the whole thing, it’s good):
House minority leader Nancy Pelosi, the California Democrat, engaged in a small but cheesy bit of deception last week. She released a letter, which quickly found its way to the front page of the New York Times, that she had written on Oct. 11, 2001, to then National Security Agency director General Michael V. Hayden. In it she expressed concern that Hayden, who had briefed the House Intelligence Committee about the steps he was taking to track down al-Qaeda terrorists after the 9/11 attacks, was not acting with “specific presidential authorization.” Hayden wrote her back that he was acting under the powers granted to his agency in a 1981 Executive Order. In fact, a 2002 investigation by the Joint Intelligence Committees concluded that the NSA was not doing as much as it could have been doing under the law—and that the entire U.S. intelligence community operated in a hypercautious defensive crouch. “Hayden was taking reasonable steps,” a former committee member told me. “Our biggest concern was what more he could be doing.”
The Bush Administration had similar concerns. In the days after 9/11, it asked Hayden to push the edge of existing technology and come up with the best possible program to track the terrorists. The result was the now infamous NSA data-mining operation, which began months later, in early 2002. Vast amounts of phone and computer communications by al-Qaeda suspects overseas, including some messages to people in the U.S., could now be scooped up and quickly analyzed.
The release of Pelosi’s letter last week and the subsequent Times story (“Agency First Acted on Its Own to Broaden Spying, Files Show”) left the misleading impression that a) Hayden had launched the controversial data-mining operation on his own, and b) Pelosi had protested it. But clearly the program didn’t exist when Pelosi wrote the letter. When I asked the Congresswoman about this, she said, “Some in the government have accused me of confusing apples and oranges. My response is, it’s all fruit.”
A dodgy response at best, but one invested with a larger truth. For too many liberals, all secret intelligence activities are “fruit,” and bitter fruit at that. The government is presumed guilty of illegal electronic eavesdropping until proven innocent. This sort of civil-liberties fetishism is a hangover from the Vietnam era, when the Nixon Administration wildly exceeded all bounds of legality—spying on antiwar protesters and civil rights leaders.
Pelosi certainly fooled me at the time (or at least had me wondering). Klein continues:
Pelosi made clear to me that she considered Hayden, now Deputy Director of National Intelligence, an honorable man who would not overstep his bounds. “I trust him,” she said. “I haven’t accused him of anything. I was, and remain, concerned that he has the proper authority to do what he is doing.” A legitimate concern, but the Democrats are on thin ice here. Some of the wilder donkeys talked about a possible Bush impeachment after the NSA program was revealed.
The latest version of the absolutely necessary Patriot Act, which updates the laws regulating the war on terrorism and contains civil-liberties improvements over the first edition, was nearly killed by a stampede of Senate Democrats. Most polls indicate that a strong majority of Americans favor the act, and I suspect that a strong majority would favor the NSA program as well, if its details were declassified and made known.
In fact, liberal Democrats are about as far from the American mainstream on these issues as Republicans were when they invaded the privacy of Terri Schiavo’s family in the right-to-die case last year.
But there is a difference. National security is a far more important issue, and until the Democrats make clear that they will err on the side of aggressiveness in the war against al-Qaeda, they will probably not regain the majority in Congress or the country.
The article is clear, and so is the message: don’t put partisan politics over the national security of our nation…
How does this disclosure do anything to damage national security? That’s what I still don’t understand. Surveillance with warrants vs. surveillance without warrants, surveillance is happening, and those seeking to do us harm must have known that anyway. I haven’t heard anything coming close to a reasonable argument for why this has damaged national security.
It’s not the wiretaps disclosures, but rather the existence of the data-mining program. Klein has this to say in the article:
It would have been a scandal if the NSA had not been using these tools to track down the bad guys. There is evidence that the information harvested helped foil several plots and disrupt al-Qaeda operations.
There is also evidence, according to U.S. intelligence officials, that since the New York Times broke the story, the terrorists have modified their behavior, hampering our efforts to keep track of them—but also, on the plus side, hampering their ability to communicate with one another.
If it’s against FISA, which is a law, then I’d have to say that the principle of executive accountability trumps the “ease” argument. If it’s such a valuable tool, the President shouldn’t have had a problem getting it past the Congress.
Two points:
1. It is clear (at least to me) that the Administration believed that the law didn’t apply in this case.
2. Given our highly charged political atmosphere it stretches credibility to assert that the President “shouldn’t have a problem getting it past the Congress.” (although I’m reading “shouldn’t” to mean wouldn’t).
You honestly think that everybody who opposes Bush does so to such an extent that they wouldn’t be able to see a program that could legitimately benefit the national security as just that? I respectfully disagree, sir.
Well, we have the recent example of the renewal of the Patriot Act as an indicator of what happens when these questions arise in the public, political environment.
Unfortunately, I feel this issue may hurt the Republicans in the election with the recent relevation that the DOHS has been opening international mail, like the professor’s mail. I am not sure where I found the news article, but I’m sure you will be able to find it if you look.
I would like to pose the following two questions:
1) Bush has claimed that the Afghanistan resolution passed shortly after 9/11 gave him the authority to conduct warrantless wiretaps because he was given all necessary power to fight terrorists. If you agree with him, do you also feel that the resolution gives him the authority to declare martial law? If not, why is he justified in violating the FISA requirements but not justified in declaring martial law?
2) Some posters have suggested elsewhere that the Times should have legal exposure because they published classified information regarding the NSA programs. Yesterday (Saturday?) the Times printed a classified report which stated that combat deaths in Iraq could have been reduced by as much as two thirds if the troops had stronger body armor. (They conducted a survey of the causes of death, and found that armor which covered a greater part of the body and which was constructed of stronger material would likely have dramatically reduced deaths from ordnance. The more effective armor is now partially used by the Marines and not yet used by the Army).
Forget, if you can, the shamelessness of an administration which fights strenuously for tax breaks for the wealthiest Americans and sends soldiers to battle in second rate equipment. The question I would like to ask is this: was the Times justified in publishing government secrets to reveal this information? If yes: then why weren’t they justified in printing the NSA stories? If not: why shouldn’t the public know this?
“Forget, if you can, the shamelessness of an administration which fights strenuously for tax breaks for the wealthiest Americans and sends soldiers to battle in second rate equipment.”
Peter, you makes good arguments at times, but you would do much better if you used your “edit” button once in awhile. You know – less hyperbole and mock outrage, more facts to chew on.
As Mies Van De Rohe famously said, “less is more.”
“Well, we have the recent example of the renewal of the Patriot Act as an indicator of what happens when these questions arise in the public, political environment. ”
Exactly put, Too Many Steves.
peter, sorry, the tax breaks and the armor are two different issues; you assume that in the absence of the tax cuts, the soldiers would have had the armor. Clearly that is not the case – this administration spends like a drunken sailor, does it not? I think without a doubt other issues must be blamed for the body armor problem, if such it is (I don’t doubt it is, mind you, but I haven’t read the Times article you refer to yet).
I’m not sure your question number 1 invites an honest answer – it appears to be a hypothetical with no basis in reality – when you consider the conditions that might warrant martial law, it’s hard to see how a war fought overseas could possibly lead to such conditions, at least in the absence of a draft – but I’ll play along, sort of…if conditions were such that martial law were warranted, than the President would be justified in declaring it (that’s the only way I can answer such a loaded question – I should be advising Alito in the hearings, no?).
Question two I’m going to answer this way: I don’t believe the Times faces legal exposure for either story – but I sure as hell think the leakers do. As we’ve discussed in other threads, you wanna whistleblow, there are ways to do it, and running to the NY Times is not the legal way. Every government entity has established whistleblowing procedures now that legally protect the whistleblower, from city governments to the feds. If a person wants to be a hero and splash the story all over the front pages, fine; just know that there are consequences.
One final thought – it is one thing to say the Times legally could publish; it’s quite another to say they should have published – each situation is different…
Mies van de Rohe said “less is more?” And I thought it was Charmin Ultra…
I think it is legitimate to conflate tax breaks and body armor, just as I think it is legitimate to ask why we are giving tax breaks while cutting money for student loans or energy supplements to poor people. The government has a finiate amount of resources to allocate. The administration chose to allocate resources to provide tax relief and did not choose to allocate resources to body armor. I think it should be held responsible for the results of those decisions.
The point of the first question is this: some have suggested that a terrorist threat justifies anything the President does in the name of national security. If this is the case, does it also justify martial law? You indicate that you believe that the answer is yes — provided it were warranted. That’s a consistent position, but I think it is wrong, because I don’t think that any situation justifies the executive unilaterally declaring martial law (with one exception: in the immediate aftermath of an unexpected catastrophe, such as a nuclear attack, for the limited amount of time until Congress can reconvene). Otherwise, the President could declare martial law whenever he chose too and suspend the constitution indefinitely — and what’s the difference between that and a banana republic?
The point about martial law is that it basically suspends the entire Bill of Rights, as well as a good chunk of the rest of the Constitution. If you feel that the President can decide by himself (or, come 2009, herself) when he can jettison the Constitution, then I’ll respectfully disagree. Moreover, I think the “strict constructionist” brigade (the real ones, anyway) would certainly disagree.
As for the second question: I, for one, would want to know if the government is not providing the troops with adequate equipment. Whatever else it may be, this information is clearly embarrassing to the administration, and it is the sort of thing which the government will classify as a national security secret to avoid disclosure. Don’t you think this is something the public has the right to know? And if so, why would you punish the person in the Pentagon who revealed it?
Peter…
“…and sends soldiers to battle in second rate equipment.”
Even leaving aside how irrelevant this is to the post topic… are you serious?? Second to what? What nation’s equipment would you consider “first rate”??
What you’ve observed is our military changing its equipment in response to changing threats — doing so vastly more quickly than any other nation’s armed forces could possibly match — and declaring it to be a sign of something that’s deeply wrong. That’s ludicrous.
As to your final question about when it should be OK to publish classified information… compare and contrast these two cases:
(1) Robert Novak calls the CIA’s public affairs office and asks whether Valerie Plame’s identity is a serious national security concern, and publishes the info when he’s told it’s not a major concern.
(2) The NYT editorial board is told repeatedly, including by the President and legislators from both parties in a meeting in the White House, that publishing the information in the NSA story would be damaging to national security, and so decides to delay publication until they can synchronize it with their reporter’s book on the subject.
The difference should be obvious.
Peter-
Again, just to be clear, lighter armor was a deliberate (and correct, in the context of the conventional phase of the war) military decision, not a way to save money.
The optimal way to defend yourself depends strongly on what you are defending against. When defending against a Republican Guard tank column, it’s crucial that your humvee be light enough to outrun it (and that you have the aerial surveillance to spot it well out of weapons range). Similarly, when equipping a soldier to be well defended against an attack by a platoon of “irregular” enemy soldiers hiding in a crowd of school children, lighter body armor allows a soldier to reach cover much more quickly. It’s only in the more recent roadside-IED environment that heavier armor would provide a better defense — and in response to that environment, our military produced a classified study determining that to be the case, put that heavier armor into production, and as you point out, has the new equipment in use. That’s exactly what’s supposed to happen.
The lead paragraph from Saturday’s Times: “A secret Pentagon studynhas found that as many as 80 percent of the marines who have been killed in Iraq from wounds to the upper body could have survived if they had extra body armor. Such armor has been available since 2003, but until recently the Pentagon has largely declined to supply it to troops despite calls from the field for additional protection, according to military officials.”
The article further describes how this is definitely not a case of “our military changing its equipment in response to changing threats — doing so vastly more quickly than any other nation’s armed forces could possibly match” — quite the opposite. “The vulnerability of the the military’s body armor has been known since the outset of the war … Still, the Marine Corps did not buy the additional plates to cover the sides of their troops until last September,” and the Army has yet to order them. The military has been aware of the problem since 2002 — the equipment was available in 2003 — and nothing was done until late 2005. How can you not be outraged?
Re the second point: if the Times was told that printing the NSA article would damage national security, then it would be helpful if the government told the rest of us why this is the case. Everybody knows we monitor Al Qaeda’s phone calls — the only new information which the Times revealed was that this was done without court authorization and in violation of the law. I have yet to hear anyone explain why a terrorist would act any differently with or without a warrant. Citing national security is a convenient excuse to hide the things which a government does not want revealed — in my opinion, the public’s right to know that the executive is flouting the law outweighs whatever (negligible) effect it may have on national security.
Well, I think this is something that’s deeply wrong (and to dmac: it’s real outrage, not mock outrage). I can’t think of anything more wrong than sending American soldiers to harm’s way without making every effort to give them the best equipment which is available. This is far more important than tax cuts, bridges to nowhere, prescription drug benefits, or anything else I can think of.
I freely admit, as I alluded to before, that I don’t know enough about the armor story to wade into that very deeply…certainly, our troops deserve the best equipment possible, and I need to read the Times article, and I appreciate you bringing it to our attention, peter. However, the NSA thing – I have to state once again that this is not about tapping phones, it’s about a new technique and new technology – Klein’s article (unfortunately, just referring to intelligence sources – I would like more sourcing) said that there is evidence that al-Qaeda’s tactics have changed since the story broke. Of course they knew certain phones were tapped – but obviously something changed – after all, peter, don’t you find it interesting that no Democratic congressman or woman has suggested that the program stop, even as they question the legality and blast Bush for not consulting them properly? Clearly, that wouldn’t be the case if this was just about conventional wiretaps.
I ‘m not surprised that there is unanimity among Democrats to continue to wiretap — no serious person would argue against wiretaps per se.
The issue is whether the government should wiretap without warrants or judicial oversight. That’s a far different question.
I’m not sure how this is a “new technique and new technology,” unless you are referring to the data mining project (as opposed to wiretaps directed at specific individuals). As noted elsewhere, I think the data mining is worthwhile and does not seem to pose constitutional problems (i.e., similar to a camera at a traffic intersection to catch people running red lights).
As for Klein’s statement that “there is evidence that al-Qaeda’s tactics have changed since the story broke:” sounds fishy to me. There is no evidence in the article to support this, and it intuitively seems wrong (why would a terrorist care about warrants? and how would you behave any differently if you knew that there was data mining?) Unless Klein’s sources include terrorists, presumably he was told by someone in the government that this is the case. Since this is obviously self-serving and does not come with anything to back it up, I don’t see why we should accept this –
The Bugging Tap Dance
“The practical effect of the Dems’ approach is to extend the protections of the U.S. Constitution to any dodgy character anywhere on the planet who has a U.S. telephone number in his Rolodex.”
peter, yes, I’m referring to the datamining – and I still say that obviously something new is going on here, or else we wouldn’t be having all this fuss…
In my mind, there is a huge distinction between data mining and conducting wiretaps of specific individuals without warrants. I don’t think there is a fourth amendment issue with data mining, because I don’t think it is a search (or seizure). I think it is a blind and neutral device similar to the camera at a traffic light — it catches whoever is caught in its net, but is not directed at any specific individuals.
Not that there is anything wrong with eavesdropping on specific individuals — only that it requires a warrant.
I also think the Times is on shakier ground revealing the data mining operation, because I think the balance between the public’s right to know and national security is more in the middle. I think it is much more important for the public to know if the executive is violating the law — this is at the heart of our system of government — than to learn about a new program which seems (to me, anyway) to be constitutionlly legit. However, I’m puzzled why the disclosure would have any practical effect — I would be shocked if terrorists use phones when there are more secure ways of communicating, and I don’t see how they would act any differently with the knowledge that this program exists.
That’s why I wish Klein had sourced his statement better – but then again, if it is true that we have evidence of terrorists changing their behavior, it’s probably not the best idea to say HOW we know that…
Here’s the link to the story on body armor Peter was referring to: http://www.nytimes.com/2006/01/07/politics/07armor.html
You’ll notice there’s nothing in there indicating this body armor problem is the result of a lack of money brought on by tax cuts. Peter, your arguments would be more formidable if it didn’t appear you reached your conclusions first and worked backwards.
You seem to agree that if it’s data-mining we’re talking about, than that’s probably legit, but if it’s more traditional taps done without a warrant, that’s a problem. The indications so far seem to be that it is data-mining we’re talking about, or something along those lines.
I asked you once before why you thought President Bush would deliberately skip the warrant process if it was such a simple and easy thing to do, and your answer was along the lines that it’s because he’s an imperial president bent on grabbing power. That’s really begging the question. Unless you assume Bush is evil, there’s no logical reason why he would skip warrants for traditional wiretaps, if they are so easy to get. That says to me it’s even more likely we’re talking about new technology.
Now maybe I’m wrong and then you’ll be able to say “I told you so” to everyone in your gulag cell someday, but I’m guessing the nation will not be crushed under the iron first of the president over the next three years.
The Iraqi war has been fought on the cheap since day one, since Eric Shinseiki warned that the invasion would require more personnel and he was demoted as a result. Today’s Times quotes Paul Bremer saying that he told Bush that the security situation required many more soldiers, and his request was denied. The body armor issue is similar to when the soldier asked Rumsfeld why they had to put scrap metal on their vehicles to make them safer. One could speculate that the armor and better protected vehicles were not purchased to save money, or as a result of inertia, or due to incompetence. I’m not suggesting that it was an explicit decision (“let’s see, should we get armor or a tax cut?”), but rather part of a pattern by the Bush administration to avoid the full costs of fighting the war successfully. It seems to me that in any decision, you should err on the side of protecting the troops – however it appears to me that the Pentagon and the administration chose the opposite path.
I don’t think Bush is evil at all. However, that doesn’t necessarily imply that “there’s no logical reason why he would skip warrants for traditional wiretaps, if they are so easy to get.” I think he skipped the warrants because he finds them inconvenient and sees little value in the checks and balances of our system. His administration has placed people in indefinite confinement at Gitmo without charging them with anything; he has used recess appointments more than any other recent President, often to appoint people who would not have been approved by Congress (e.g., John Bolton); his administration has ignored treaties which we have signed. These acts are all emblematic of an administration which is disdainful of the other branches of government and ignores them when convenient to do so. Whether this is logical or not, I leave to you to decide.
Peter-
“In my mind, there is a huge distinction between data mining and conducting wiretaps of specific individuals without warrants.”
Agreed. Can you point me in the direction of ANY evidence that the latter has been occurring (within the U.S.)?
I’ve seen many articles that insinuate that this happened, but in each case vaguely enough that it could be referring to something totally innocent — like data mining, or signal intelligence on foreign soil.
peter – hate to be a nitpicker – but I’m gonna pick a nit anyway…do you have anything to back up the assertion that Bush has made more recess appointments than any other modern president? Seems like I read somewhere that that is not the case…
Well, we could go on and on about this, but please tell me why the MSM missed this little story that happened over the weekend –
http://www.turkishpress.com/news.asp?id=93048
Of course, nary a word from the high horse of pre – eminent authority on the world at large -namely, the NYT.
More NSA/FISA, please.
To Mark: to be precise, Bush is on track to have more recess appointments than anyone else (Clinton had 140 appointments in eight years — when this article was printed last August, Bush had 106):
http://www.latimes.com/news/nationworld/politics/wire/sns-ap-recess-appointments-glance,1,3699037.story?coll=sns-ap-politics-headlines
To Clint: it was published in the Times — when I get home tonight I will find a link, and to dmac: I’ll take a look at the Turkish article when I get home
peter, thanks for the link, I’ll check it out…
the link for Clint:
http://www.nytimes.com/2005/12/16/politics/16program.html?ei=5090&en=e32072d786623ac1&ex=1292389200&partner=rssuserland&emc=rss&pagewanted=all
to dmac: I would think that terrorist suspects get picked up all the time — I’m not sure what your point is here
Peter-
Again, your assertion was: “ conducting wiretaps of specific individuals without warrants.”
What part of the NYT piece you cite says that we are or were doing that?
It’s in the first paragraph — is this a trick question?