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...HH: What year were you in the OLC, Office of Legal Counsel?
CS: In '81, under Carter and Reagan.
HH: Okay, so you actually had to deal with the use of force issue, surrounding the operation that went badly in the Iranian desert. Were you there at the time?
CS: I was there during some of the legal discussion. That's correct.
HH: You see, that's what I thought. And that would give you a very different view. I came into Justice as a special assistant to Smith doing the FISA work afterwards, and it gives me a different perspective on this. Now let's get to FISA. This is the hardest nut to crack, because we don't know the facts. And why are the facts important here?
CS: Well, if the president is just restricted to al Qaeda, and al Qaeda's friends, then he's on very firm ground under the authorization. If, on the other hand, the president has been engaging in wiretapping of people whose connection to al Qaeda is very uncertain and indirect, then the authorization is less helpful for him.
HH: But the Foreign Intelligence Surveillance Act itself, I often hear...today, Lanny Davis, another one, said the president could have just gone to the FISA court. Why didn't he? And Vicki Toensing and others have been trying to explain they have a probable cause requirement, and they have some other technicalities associated with that process that make it cumbersome. Do you find...
CS: I think there are a couple of things going on there. It's not the most cumbersome thing in the world, but it is something that the president, when national security is on the line, isn't excited about having to go through a procedure where it's conceivable he's going to lose...unlikely, but conceivable. There's another point in the background, really, which if you were there, you know, which is that the president believes here that these are very sensitive Constitutional prerogatives. And this isn't a Republican or Democratic thing. This is something that cuts across political affiliations of the president. And so the notion that in a case as sensitive as this one, he is under a legal responsibility to go through something that may be more time consuming than appears, may be more leaky than appears. Even if he doesn't think it's likely to be leaky, that's something that a president is not likely to think is necessary.
HH: So if we assume, and I do, that FISA is Constitutional, if it puts into place an arguably exclusive means of obtaining warrants for surveillance of al Qaeda and their agents in the United States, does the president's avoidance of that necessarily make him a law breaker? Or does it make the FISA ineffective insofar as it would attempt to restrict the president's power?
CS: Yeah. I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11...
Still doesn't stop libs from throwing their crap against the wall to see if it sticks.Kathianne said:More on whether or not the 'authority' was there. Seems clear it was, interview with a 'liberal' pundit: http://www.radioblogger.com/#001248on
on a Hugh Hewitt interview:
NSA surveillance and the contrapositive
December 29th, 2005
In applied mathematics, there is a technique of proving a theorem called taking the contrapositive. When you take the contrapositive, you dont prove that the theorem is true, you demonstrate that the consequences of its being untrue are impossible. Perhaps surprisingly, this technique makes many proofs much simpler then they otherwise would be.
We can apply this to the NSA anti-terrorist wiretaps. President Bushs political opponents and some civil libertarians are upset that he approved wiretaps without a court order. AT and other blogs have already demonstrated that doing so is (a) well within the letter of the law and (b) is in accord with practices of previous presidents. But for those still not convinced, lets try the contrapositive:
President Bush receives information from the NSA or the CIA or the FBI or some other source that a conversation is very likely to be carried on between a suspected terrorist and a foreign source. Suppose the President does not approve this wiretap, or, what amounts to the same thing, suppose he applies to a FISA judge for a court order and the order is refused. What does President Bush do then?
Does he do nothing, which is the position of the civil libertarians? That does not seem satisfactory given the capabilities and objectives of our enemies. Remember that nukes can be as small as suitcases these days and that several nukes going off in several cities could very severely damage, perhaps cripple, the country.
President Bush has taken an oath which exists independently of any court to preserve, protect and defend the Constitution against all enemies foreign and domestic. Can this oath, this responsibility, be delegated? No. And we dont want it to be. A judge is a minor appointed official. The president is the senior elected official and the commander in chief of the armed forces. It is clear, once this contrapositive is used the alternative wherein President Bush does nothing that it is not an acceptable alternative.
Civil libertarians will say that this is the initial edge of the wedge to destroy our rights and implement totalitarianism. This represents a confusion about the situation we face. All democracies have distinguished between an assault on the polity from outside and the normal operation of the polity from within. In normal civil operations, we have legal and procedural safeguards to protect our civil liberties. Indeed, we are willing to have a guilty person go free if the proper procedures have not been followed.
But in an assault on the polity from outside, conditions and risks are different. And, yes, we have to give up some of our civil safeguards to meet it. That we need to do so is not the least of the outrages that our enemies inflict on us. But all democracies in history have observed this distinction.
The term dictator comes from the Roman Republic where a dictator was appointed for a 6-month period to rule the republic by decree during a period of military emergency (thus the Roman meaning was different from the present totalitarian meaning). The British have the Defense of the Realm Act, which was passed in 1914 and in 1940. Its working part says that everyone residing in the UK must put their persons, their services and their property at the disposal of His Majesty for the duration of the war. In other words, the government can commandeer peoples homes, can direct where and how they work and can require service to the state simply by direction of the prime minister.
Abraham Lincoln conceived his responsibility to preserve the Constitution as overriding all other considerations. He ignored rulings from Chief Justice Taney that he thought were not in the best interests of the country and he suspended habeas corpus, meaning he could throw people in jail indefinitely - which he proceeded to do. The declaration of war in World Wars I and II were understood to give the President authority over the economy and the ability to conduct whatever security operations he deemed necessary, including incarcerating ethnic Japanese American citizens in World War II.
The need for a democracy to distinguish between the normal operation of civil affairs and the extraordinary powers that must be exercised when the polity is under threat is a very well trod path, both legally and historically. President Bush is traveling well within the confines of that path.
Greg Richards
