The NY Times is going to have to rethink its strategy, and its rationale, in the NSA terrorism surveillance episode.
- John Hinderaker at Power Line cites cases and precedents - several - that support the position of the President that his actions in ordering the NSA surveillance of communication between terrorism suspects and contacts in the United States is legal.
Those cases are pre-FISA, of course, and the Times says that FISA is the statute the administration "violated." So maybe the Times would argue that the pre-FISA cases don't apply. Such a claim would be unpersuasive on its face, since Congress cannot by statute or otherwise strip the executive branch of its constitutional powers. But there is, in fact, a post-FISA case that specifically addresses the question whether the passage of that statute could have changed the pre-existing principle that the President has constitutional power to order warrantless surveillance for foreign intelligence purposes. Since that case is directly on point, surely the Times discussed it. Right? Wrong. The Times never mentions In re: Sealed Case No. 02-001, decided in 2002 by the Foreign Intelligence Surveillance Court of Review, the very court which is responsible for interpreting and applying FISA.
[...]
The problem is, you can't base a technical legal argument on what you think the law ought to be. You can only base a technical legal argument on what the law actually is. And the current state of the law, as uniformly articulated by the federal courts, is that the NSA's international surveillance program is a legal implementation of the President's constitutional powers.
The Times still has some moves left, but it is futile. This game will end in checkmate.
In other glances:
- John Kerry is blogging again, this time with a Huffington Post editorial beating the drums further for the Alito filibuster. There is a lot of hyperventilating, but not much wind produced, certainly not enough to windsurf on Samuel Alito's nomination. Some excerpts:
Will it matter if we speak up after the Supreme Court has granted the executive the right to use torture, or to eavesdrop without warrants? Will it matter if we speak up only after a woman's right to privacy has been taken away? Will history record what we say after the courthouse door is slammed in the faces of women, minorities, the elderly, the disabled, and the poor?...
After reviewing Judge Alito's writings as a Department of Justice lawyer and a federal judge, I have no doubt why he is so heralded by the most extreme Republicans. There is no doubt about the kind of Justice Samuel Alito will be. He will make it harder for the most disadvantaged members of our society to have their day in court. He will allow the President's power to grow far beyond what the Framers of the Constitution intended. He will roll back women's privacy rights. Empty promises made in the heat of a highly-charged and exceedingly political confirmation battle cannot erase a twenty year record...
The problem you face, Senator, is that your fellow Democratic Senators on the committee turned the hearings into name calling and farce, and were unable to assail the legal rationale behind the rulings to which they objected. You rail as if simple conservatism is "out of the mainstream." It isn't, and the public knows it. - Cindy Sheehan continues to cozy up to Venezuelan 'President' Hugo Chavez, even as he calls for overthrow of the US government. This comes pretty close to the textbook definition of treason.
CARACAS, Venezuela - Cindy Sheehan, who gained international fame when she camped outside President Bush's ranch in an anti-war protest, plans to pitch her tent again, Venezuela's president said Sunday as he urged activists worldwide to help bring down "the U.S. empire." - I'm pretty sure Hamas will moderate itself in the wake of the Palestinian elections of last week. Yeah, sure, I can see it. Not.
1/30/06 1840: Another furtive glance:
- Carnival of the Clueless up over at Right Wing Nut House. It's the "what would Jack Bauer do" 24 edition. Mr. Moran postulates that, faced with a TV ad that needs trimming, so kids don't get the wrong idea, Jack Bauer would "would kidnap the marketing director for Nike and torture him until the cluebat took the ad off the air." Oh, and Bauer doesn't wear Nikes. Good man.
