Big Wiretapping Controversy in America Too!

he WASHINGTON POST carried a front page article Friday saying Bush Authorized Domestic Spying

President Bush signed a secret order in 2002 authorizing the National Security Agency to eavesdrop on U.S. citizens and foreign nationals in the United States, despite previous legal prohibitions against such domestic spying, sources with knowledge of the program said last night.

The super-secretive NSA, which has generally been barred from domestic spying except in narrow circumstances involving foreign nationals, has monitored the e-mail, telephone calls and other communications of hundreds, and perhaps thousands, of people under the program, the New York Times disclosed last night.

The aim of the program was to rapidly monitor the phone calls and other communications of people in the United States believed to have contact with suspected associates of al Qaeda and other terrorist groups overseas, according to two former senior administration officials. Authorities, including a former NSA director, Gen. Michael V. Hayden, were worried that vital information could be lost in the time it took to secure a warrant from a special surveillance court, sources said.

But the program's ramifications also prompted concerns from some quarters, including Sen. John D. Rockefeller IV (W.Va.), the ranking Democrat on the intelligence committee, and the presiding judge of the surveillance court, which oversees lawful domestic spying, according to the Times.

The Times said it held off on publishing its story about the NSA program for a year after administration officials said its disclosure would harm national security.

The White House made no comment last night. A senior official reached by telephone said the issue was too sensitive to talk about. None of several press officers responded to telephone or e-mail messages.

ALL OF AMERICAN BLOGGERDOM will probably weigh in on this story before it's over (which actually broke in the New York Times in a bylined front page article by JAMES RISEN and Eric Lichtblau earlier Friday). This issue might take some time to work itself out, from the sound of Main Stream Media reporting on it, and the vociferousness of the initial salvoes being fired off into the atmosphere. In a sign that the Main Stream Media in America is finally "getting it" about the power of the bloggers, the NEW YORK TIMES Gets Strong Blog Response to Holding, and Running, Domestic Spying Story--As Keller Offers Explanation -- (via Editor and Publisher) --

NEW YORK The New York Times’ revelation on Friday of a presidential order signed in 2002 allowing the National Security Agency to spy on hundreds of people inside the U.S.—and the newspaper’s decision to hold off on the report for a year at the request of the White House--has inspired a wide reaction, including at the paper’s Web site itself.

For one of the first, if not the first, time with a major story, the Times has included a prominent link right under a bombshell story that takes readers to a variety of postings by bloggers. The Washington Post online has been carrying blog reactions for some time.

The bloggers who get links at the Times today include conservatives Glenn Reynolds (“a major shift in U.S. surveillance policies”), Hindrocket of Powerline and Michelle Malkin (she denounces the “civil liberties Chicken Littles” at the paper), as well as a sampling of liberals. The paper does not link to Matt Drudge, who today has been accusing the paper of only publishing the story now because co-author James Risen has a book on this general subject coming out soon.

Indeed, MICHELLE MALKIN is madder than RED HELL at the New York Times for breaking such a "treasonous" story. She does some high wattage ranting and reporting of other people's opinions, foibles and scoops and colorizes MATT DRUDGE who believes the New York Times released the story in order to plug a new book just published.

MEMEORANDUM has the best coverage of reporting and commentary from the Main Stream Media and Bloggerdom commentary on this developing story. The usual PALEOLIBERAL vs. NEOCONSERVATIVE rift has opened up like the Grand Canyon in the various positions, which may harden as this gets confounded with the whole, "What do we do about Iraq?" dilemma that will consume America FOR DECADES TO COME.

STOP THE ACLU also has a great roundup of opinion and commentary from all around Bloggerdom.

DAILY KOS has a roundup from a different Corral in the evolving showdown. (OK?)

For the careful and reflective in Bloggerdom, who've learned to control their passions and illusions about having a "worldwide" audience, I offer the humble reflections that Philippine Commentary has done on an issue that involves our deepest held principles of HUMAN LIBERTY AND FREEDOM wrapped up in an apparent conundrum with equally deep principles of NATIONAL SECURITY AND DEFENSE. The realities of recent political history have forced such reflections upon us all. Reflections that have come from the gruelling GLORIAGATE controversy that has consumed the Philippines for the last six months. The exact situations are very different and its adjudication will take different courses in the two countries. But I think the general principles of Democracy, Liberty and National Security are all the same, and so the debate there will take on a very familiar complexion and complexity as it evolves. We have had a HEAD START on American Bloggerdom on the issue, having lived through Gloriagate of the last 6 months. Recently these weighty issues and principles have been considered in these recent essays at Philippine Commentary:

The Right to Privacy and the Public's Right to Know

Dilemma of the Poisoned Fruits

Fingerprinting the Human Voice

Was the Adam and Eve of All Tapes Digital?

Long Live the Anti-Wiretapping Law!

Fourteen Soldiers Are Hostages of ISAFP

Stunning Break in Gloriagate Case

Also, NATIONAL SECURITY in a different time and a different war was recently contemplated here in

The Day After Pearl Harbor

It looks like I shall have occassion to return to more focussed considerations of America now, (the land of my birth and Anglospheric being) and her painful dilemmas, which are apparently the same on the Continent as in the Archipelago, and bear the same grave consequences for Liberty and Security.

In a related story, GLENN REYNOLDS of Instapundint, thinks it was a good decision for Congress not to reauthorize the U.S. Patriot Act --

I think this is a good decision. While my earlier fears about the Patriot Act haven't really been borne out, my earlier instinct that this was a bureaucratic wish-list masquerading as antiterrorism seems to have been well-founded. Are these things necessary? I don't know, but the proponents of the bill haven't met their burden of proof.

He quotes ORIN KERR to put this in perspective --

For those of us who think of the Patriot Act as actual legislation rather than a symbol of the Bush Administration, this is rather puzzling stuff. The dirty little secret about the Patriot Act is that only about 3% of the Act is controversial, and only about a third of that 3% is going to expire on December 31st. Further, much of the reauthorization actually puts new limits on a number of the controversial non-sunsetting provisions, and some of the sunsetting provisions increased privacy protections. As a result, it's not immediately obvious to me whether we'll have greater civil liberties on January 1, 2006 if the Patriot Act is reauthorized or if it is allowed to expire.

PAJAMAS MEDIA (of which Instapundit is a big part) puts it a lil differently -- DEMS WHACK PATRIOT ACT.


WIRETAPPING IN AMERICA WITHOUT A COURT ORDER?

ISN'T THAT WHAT HAPPENED HERE TOO?

BUT ARE THEY THE SAME THING?

Yes and No. But it will take some time to explain...with Christmas coming too!

UPDATES:

(0700) THE POLITICAL ANIMAL, Kevin Drum, has a legal and moral point or two about those similarities and differences as found in US legislation and case history (eg Foreign Intelligence Surveillance Act) that may have stunning relevance to the CONFUSED Archiplago residents caught up in the mental maze of Gloriagate, more relevance perhaps than to their kith and kin on the American Continent. Check it out! It's same beautiful TIGHTROPE ACT that Senator Lorenzo Tanada walked with the Philippines' 1965 Anti Wire Tapping Law, Republic Act 4200! and its seminal idea: The line between the Right to Privacy and the Public's Right to Know, is the line against self-incrimination, except in cases of offenses against national security such as treason, espionage, etc. Whether or not any case so qualifies, is what the "Court Orders" and its exceptions are all about!

Filipinos will find the following quote from above article to be full of amazing resonances with the particulars of Gloriagate. I don't know if the claims in it about Pres. George W. Bush are true, but read it with President Gloria Macapagal Arroyo in mind. --

WASHINGTON MONTHLY (Dec. 16, 2005) Kevin Drum Guest Hilzoy: "...This is against the law. I have put references to the relevant statute below the fold; the brief version is: the law forbids warrantless surveillance of US citizens, and it provides procedures to be followed in emergencies that do not leave enough time for federal agents to get a warrant. If the NY Times report is correct, the government did not follow these procedures. It therefore acted illegally.

Bush's order is arguably unconstitutional as well: it seems to violate the fourth amendment, and it certainly violates the requirement (Article II, sec. 3) that the President "shall take Care that the Laws be faithfully executed."

I am normally extremely wary of talking about impeachment. I think that impeachment is a trauma for the country, and that it should only be considered in extreme cases. Moreover, I think that the fact that Clinton was impeached raises the bar as far as impeaching Bush: two traumas in a row is really not good for the country, and even though my reluctance to go through a second impeachment benefits the very Republicans who needlessly inflicted the first on us, I don't care. It's bad for the country, and that matters most.

But I have a high bar, not a nonexistent one. And for a President to order violations of the law meets my criteria for impeachment. This is exactly what got Nixon in trouble: he ordered his subordinates to obstruct justice. To the extent that the two cases differ, the differences make what Bush did worse: after all, it's not as though warrants are hard to get, or the law makes no provision for emergencies. Bush could have followed the law had he wanted to. He chose to set it aside.

And this is something that no American should tolerate. We claim to have a government of laws, not of men. That claim means nothing if we are not prepared to act when a President (or anyone else) places himself above the law. If the New York Times report is true, then Bush should be impeached.

President Bush will have ample defenders, but I wonder how the Malacanang Palace will duck this UNCONSCIOUS but DIRECT indictment of what has allegedly transpired in the Archipelago?

(0800) GLENN REYNOLDS WONDERS:

I can't see any very compelling reason to bypass the courts here, especially given that warrants in these cases are almost always granted. Which makes me wonder what's up.

(1100) MSNBC has coverage of White House and US Congressional reactions to the published news stories.

(1300) The point raised by Glenn Reynolds about there being no problem usually in getting Court Orders and Warrants for covert surveillance seems to be confirmed in this further report from WAR AND PIECE quoting Erick Umansky --

that he's just spoken to NSA expert James "Bamford, who says that in the FISA court's 20 year history it has only rejected one warrant request. That was then kicked up to a FISA appeals court (the only time that court has ever convened) and that court in turn approved the request... In other words, what was the point in avoiding the courts?

NEW YORK TIMES DOT COM has a really good roundup of the most thoughtful COMMENTARY on a controversy that may last for a while now looking at the battlements and signal flares going up. Lots of the serious players in Bloggerdom are there today.

(1545) The CORNER AT NATIONAL REVIEW ONLINE has by far the most intelligent, comprehensive, informative and varied commentary. Go there and learn a lot.

(2000) YAHOO NEWS carries this Associated Press dispatch in which a "senior intelligence analyst" talking on condition of anonymity, talked about the covert operation --

a senior intelligence official told The Associated Press that the eavesdropping was narrowly designed to go after possible terrorist threats in the United States.

The official said that, since October 2001, the program has been renewed more than three dozen times. Each time, the White House counsel and the attorney general certified the lawfulness of the program, the official said. Bush then signed the authorizations.

During the reviews, government officials have also provided a fresh assessment of the terrorist threat, showing that there is a catastrophic risk to the country or government, the official said.

"Only if those conditions apply do we even begin to think about this," he said. The official spoke on condition of anonymity because of the classified nature of the intelligence operation.

"The president has authorized NSA to fully use its resources — let me underscore this now — consistent with U.S. law and the Constitution to defend the United States and its citizens," the official said, adding that congressional leaders have also been briefed more than a dozen times.

Considering the subject matter, I am going to let Rizalist cross post this item over at that new-fangled place -- THE ARCHIPELAGO CALLED EARTH.