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January 22, 2006


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Actually the FISA thing does intrigue me, mostly for the question stated above:

"...I'd ask what the real idea was, you know, why not use FISA, why not get warrants after the fact..."

Why not use FISA? What was the benefit to the programme in cutting FISA out? From all accounts it would not have been a massive pile up in beaurocracy. Within the context of the programme why did bypassing FISA seem to attractive?

I note that the legality argument is still flying around and I should state my 'bias' as such right away: so far I have not been convinced of its legality by the various 'debunkers' out there in blogland. At the same time I have not been convinced that it was illegal, though I am tipping more that way having read Gonzales' spiel.

Winston Smith

That's the point, isn't it? As long as they were doing what they said they were doing, there isn't a reason in the world NOT to comply with FISA. WTF?

I miss this place.


av would disagree maybe, or now that I've said that disagree that he disagrees, or posibility disagre about the fact I'll say he disagreed about disagreeing... but I'm not that prone to conspiracy theories.

But this looks like a power move plain and simple, you have a secret court for getting warrants, what more could you possibly need? Either you plan to break the law, that's why, or you plan to obey the law... BUT prove you don't have to answer to anybody.

Winston Smith

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/25/AR2006012502270.html> The Bush administration rejected a 2002 Senate proposal that would have made it easier for FBI agents to obtain surveillance warrants in terrorism cases, concluding that the system was working well and that it would likely be unconstitutional to lower the legal standard.


seriously, I don't want to think they did it "just to prove they could"... is there ANY other explanation? Especially considering these current revelations about the 2002 review?

what other reason? It was not like they couldn't get warrants... it's not like there is evidence yet they are spying on people they couldn't get warrants to spy on. There is no evidence in this of paperless corruption... even without the warrant papers are being signed, a beurocracy is recording the actions... as far as we know...

WHY? Why do you need around such a statute considering you can get warrants after the fact?

I can't think of an explanation except to increase the power of the executive.


While I understand the concern over warrantless wiretaps, I do believe there is enough question as to whether or not it is legal that this should never have been leaked. The leaking is more dangerous yet you and the folks posting here don't seem bothered by someone leaking secrets to the media. That as well is scary. There are mechanisms to deal with this behind the scenes. And I imagine you wonder why some on the right believe there are traitors among the president's detractors.


J, I don't think the leaking was more dangerous. I think that is where the difference lies. There is nothing traitorous about it (well not for me, that is impossible). The thing is, to determine whether the leak was illegal one would have to determine whether the tapping was illegal - that hasn't been done yet. If it turns out that the tapping was illegal then the leakers actually were obliged to report it (though perhaps not to the media) otherwise they could have been considered complicit in a crime.



You've made your point in a reasonable, tone, that I appreciate, but just because someone says it may be legal doesn't make it uncertain.

Just saying, "it's fine!" doesn't make it a legitimate controversy in the sense that it's a judgment call that individuals should just ignore for that reason.

We need good people in our system that are willing to buck it if it becomes corrupt... that's what it means to live in a Democracy. It all makes sense if we realize that no, the hierarchy doesn't automatically know or do the best, it requires the scrutiny of citizen individuals.


I for one don't wonder why some on the right believe there are traitors among the president's detractors. There will always be a subset of fools on the fringe, left or right. Judging from his comments on "This Week" 1/29, you would have to label Chuck Hagel (R- Chairman Intelligence Committee) a detractor in regard to the recent executive branch wiretapping. Are you calling him a traitor, or justifying someone else doing so? I take it that you don't call these detractors traitors or you would have couched your remarks in the first person. On the other hand, you would appear to extend more empathy for those that would call others traitors, than, for example, I would. Or have I misunderstood your point? Do you think that a subset of the President's detractors are traitors, and if so, what are your criteria for judging these people guilty of a capital offense punishible by death? Just wondering.


The Dems have promised to fight on this most important battle for years, YEARS, they have scared many a vote on it... they have said last year they would "save" themselves for this fight.

They lied. They didn't fight. Mind you, we are not talking about civil war here, this is a political fight we are imagining, were imagining, where the dems could take a stand, which they clearly don't do. It just amounts to putting down their feet that certain issues are crucial to the nation. Even demanding a week of debate ending in an up or down vote would show us where Dems stand. Maybe the Dem Leaders are scared to show us where they stand.

They have lost an opportunity... they have foiled the Democracy by squandering an important chance to engage in The Great Public Debate which should characterize the political life of a democracy.


I don't think that the issues revolving around the wiretapping have fully incubated yet, much in the same way the Valerie Plame story took months. The democrats have had alot on their plates lately, the Alito hearings taking precedence last week. It's probably not in their interest politically to look like they're negative on multiple simultaneous issues. I agree that they don't seem particularly adept at getting the message out, for example in regard to the Indian money and the inaccuracies revolving around their (not) accepting Abramoff money. They should have pounded on that. Instead, they seemed more willing to allow the bloggers and e-mailers to take up the sword for them, as with the WAPO Ombudsman ridiculousness. I listen occasionally to the far right ranting of Limbaugh and Hannity on AM radio and for the life of me can't figure out why these yahoos aren't routinely lambasted and relegated to their corners like yapping terriers by someone on the other side in the media. They are such easy targets. Part of the approach should be to attack the messengers.


I can't think of an explanation except to increase the power of the executive.

I'd like to make a general point here, which is: just because you can't think of any other explanation doesn't mean that the one you've settled on meets an acceptable standard of evidence. Explanations should be examined on their own evidences - in other words, they should not be better received if competing explanations are particularly bad. When there are no good explanations, there is always another option: to say "I don't have a good explanation."

Of course, in politics this can be deadly, because uncertainty is identified with fence-sitting, and fence-sitting is identified with weakness of will. But that doesn't make the uncertainty go away.

Why should we adhere to this rule? Because it is a check on our biases. It is too easy to let ourselves believe a favorable explanation without sufficiently strong evidence - we must discourage ourselves from any inclination to do this, or we will never be able to "separate the wheat from the chaff," so to speak.

And pyrrho, while you claim that you don't want to believe the executive branch would do this "just to prove they could," it does fit in with a more general model which says that Bush and friends are trying to extend the powers of the executive branch - a model you hold to be true, yes? So, in a sense, it is a favorable explanation.

I'm really not trying to be combative, here - issues of bias and the ethical prescriptions necessary for learning interest me because they are at the nexus of politics and the philosophical underpinnings of the science I practice when I go to work.

On the other hand, this:

They have lost an opportunity... they have foiled the Democracy by squandering an important chance to engage in The Great Public Debate which should characterize the political life of a democracy.

- is spot-on, I think.

Winston Smith

J., if "The leaking is more dangerous," I'd be interested to know what, specifically, you think a terrorist plotter might have done differently as a result of the disclosures of the NSA wiretapping?

In other words, how specifically could plotters have been helped?


Winston, your question is frankly, not relevant. Were the left to be intellectually honest about this, they would have the same, if not greater, levels of outrage over this leak, which compromises a highly secret active intelligence program as they did with the alleged outing of an allegedly covert agent in l'affaire d'Plame.

And, by the way, pyrrho, just because you cannot think of a reason does not mean that a compelling reason does not exist.

It is not necessary to prove some demonstrable type of harm for this to cause damages within the NSA.


JD you may well be right, I don't know. But I think an important thing to keep in persepctive is the difference between the two cases.

In the Plame case the outing of Valerie Plame was in itself an illegal act apparantly committed to cause harm to an 'enemy' of the administration. i.e. nasty little vendetta (not necessarily sanctioned from on-high). We can argue over whether she was undercover - recent records suggest that she definitely was.

In the case of the NSA programme the leak was to expose a potentially illegal operation (certainly illegal in some people's minds) perpetrated by the administration. Highly secret it might have been, highly illegal it also might have been. I have heard people say that perhaps the leakers could have taken other measures to air their grievances, agreed, but what if they had? We don't know if they tried and got nowhere. Personally I think it unlikely and rather they wanted to keep their jobs and so leaked it instead. Honorable? Maybe not, but I can understand why they did it the way they did.

As for what you said afterwards, I agree and it follows nicely with what G-Do said.

Winston Smith

Now wait just a second, JD. The accusation has been made that disclosing the NSA spying program “damaged national security.” You yourself assert—without evidence, purely as an presumption—that the disclosure “compromises a highly secret active intelligence program.” Well, how?

“It is not necessary to prove some demonstrable type of harm for this to cause damages within the NSA.” Well, sorry to be logical, but it certainly IS necessary to show some type of harm if you’re going to run around saying there’s been harm. It can’t be presumed. And if you’d like us to just take the Administration’s word for it, well, their track record for candor is quite poor.

Here’s yesterday’s exchange. I can’t speak for you, but I felt my intelligence was being insulted:

BIDEN: “. . . General, how has this revelation damaged the program? I'm almost confused by it but, I mean, it seems to presuppose that these very sophisticated Al Qaida folks didn't think we were intercepting their phone calls. I mean, I'm a little confused. How did it damage this?”

GONZALES: “Well, Senator, I would first refer to the experts in the Intel Committee who are making that statement, first of all. I'm just the lawyer.
. . . .

I think, based on my experience, it is true -- you would assume that the enemy is presuming that we are engaged in some kind of surveillance.

But if they're not reminded about it all the time in the newspapers and in stories, they sometimes forget.”

So, JD, do you think the damage the disclosure inflicted was that it REMINDED terrorists their lines are probably tapped? You are an intelligent man. You can’t possibly believe this.



great points on speculation, and I supposed I can think of some alternate explanations not much more palatable but certainly different with different implications (e.g. perhaps there was some judge or official on the FISA chain of approval they felt was obstructing their desires, etc).


JD, I acknowledge that my lack of imagination does not make a conclusion... and in the future I acknowledge this as well, when I say "I can't think of another explanation" one can assume I mean and would admit "but maybe that's lack of an imagination (or lack of further facts)".

But I disagree about the leak, because Plame was not doing something illegal. A whisteblowing leak is different, because we rely on this for the rule of law.

I don't see how knowledge of this is supposed to harm the program unless by stopping it because the program is illegal. If it's legal as Bush claims, then knowing about it should not make a material difference. That is... you can't know if there has been a FISA warrant in the first place, now that one is not "needed" you know no more about if you are being tapped, but you will have to assume it's more likely. Some may not this means you'll be "more careful" but I'll not that means their communication is dissrupted as they cannot speak as freely.



"Were the left to be intellectually honest about this..."
JD: It appears that you would like to frame this issue Rush Limbaugh- style to marginalize your opponent. Only that doesn't work here because of the number of conservatives in congress who have criticized this activity. Warrantless wiretaps. I'd say that maybe you need to roll those two words around on your tongue for awhile and see what they taste like when the other political party has executive power. You know little or nothing about the extent of this activity but are willing to defend it. What's up with that? Let's not characterize it as intellectually anything.


Kav - If the leaker thought the program was illegal, there is a process, generally through the IG process, where the complaints can be heard. Were their actions honorable? Not at all. Illegal. Yes. Blatantly. Unequivocably.

However, each individual is not entitled to make their own determination as to how they choose to disseminate classified materials. One is not allowed to sit at their desk and say, "Hmmm, I think this is outside of the acceptable boundaries. I think I will call the NY Times". That is simply not how it works.

Winston - would you care to explain to me how the leaking of a classified program to the NY Times does not cause damages? If not, what is the freaking point of even bothering to have classified information ? In intelligence, the harm would be presumed, otherwise it would not have been classified to begin with.

darkhorse - I can be partisan, and certainly in the minority around here, but frankly, I was not trying to paint one side into a lesser position. I was simply pointing out that l'Affaire de Plame was made out to be some national security crisis, while the blatant leaking of a highly classified program is pooh-poohed. If you took it differently, I apologize.

I know little or nothing about the extent of the "domestic spying" and am willing to defend it, though I do not recall doing so, let us accept your characterization. The converse would be that you know little or nothing about the "domestic spying", and yet you are willing to declare it illegal.

Fact is, that with my past experience in Military Intelligence, I suspect that there is far more to this issue than what we know now, and suspect that what we know now is colored by the motivation of the leaker. I am willing for this to play out over its natural course in the Courts. Is it possible that the Courts will disagree with the Administration's position? Sure. However, there appears to be many legally compelling cases supporting their postion as well.


However, each individual is not entitled to make their own determination as to how they choose to disseminate classified materials. One is not allowed to sit at their desk and say, "Hmmm, I think this is outside of the acceptable boundaries. I think I will call the NY Times". That is simply not how it works.

I can agree with this to a point. Except I think that your 'quote' trivialises the issue. They did not think it was just "outside of the acceptable boundaries" they thought it was illegal. A crime. A crime that if not reported would have made them complicit, no? In fact they did have a duty to report this. But, and here is where I will agree with you, they should have reported it to the authorities using the appropriate procedure, not to a newspaper. That is how the system ought to work. Consequently, although if this programme does turn out to have been illegal, they should be prosecuted for their actions - it is the rule of law and it does not matter that they will have done their country a service by exposing this. I am serious.

I can sympathise with them for the way they did it. None of us knows their motives and so we each project a motive that is palatable to our view. I could speculate that the leaker(s) looked at a situation where the executive branch appeared to be gathering power to itself, above the established oversight of the courts. In a situation like that it would not be a stretch to imagine that they had no faith in the normal procedures. But it is just speculation, just as one could speculate that their sole reason for doing what they did was to damage the Bush administration.

To to reiterate, I am glad that the leaker(s) leaked as it has brought what might turn out to be a crime into the spotlight. At the same time they broke the law and should face the appropriate consequences for their actions.


As an aside I find it incredible that any terrorist might 'forget' that s/he is being monitored. If it were me I would be highly paranoid and would not make the mistake of using open communications to discuss a plot in open language. I am constantly amazed (and pleased) that there are dumb terrorist out there that do this. Apparently out of the 1000s of calls monitored, 10 leads (or individuals, I am not sure) were developed. Although this means that the pick up rate of the programme is very low there were still at least 10 instances where the terrorists were more stupid than normal.

In addition, why is the AG not under oath? Why is it not standard practice to put everyone who is questioned in one of these sessions under oath? If there are questions that he cannot answer for security reasons surely he can say that? To me as joe normal, the fact that someone elects not to be placed under oath suggests that s/he is going to hide something pertinent. Now there may well be a very good reason that I am unaware of, but how many others are unaware of it also?


So we have it that there was no effort to address this via other channels? Sorry I missed that. Or is that speculation?

Winston Smith

JD, you need to say what the presumption is.

Is it presumed that ANY disclosure of secrets damages national security? If so, what's Karl Rove doing out of jail, much less with a valid security clearance?

US security's far more likely to have been damaged by a CIA dummy front company (Brewster-Jennings) being outed as a consequence of outing Valerie Plame, than it was from the New York Times shocking the world by disclosing that terror plotters should expect phone taps.


Kav : I intended to trivialize it. There are procedures in place to deal with these, ie. the Inspector General process. You are right, they have a duty to report it within the structural framework of the environment where they work. They do not have a duty to report it to the NY Times. A mere lack of faith in the process does not absolve them of not availing themselves of the process.

Kav - Yes, there are questions that he cannot answer for security reasons. I do not know if that is why he was not under oath.

You are right, darkhorse. I was speculating / assuming that the other available avenues were not utilized. Given what they were willing to print about this program, I cannot imagine that aspect would have been conveniently left out of the reporting, and subsequent informatin drops.

It has not been shown that Karl Rove leaked national security information. Even Fitz has not been able to show that. Nice try.

The presumption is that classified materials, in this specific case likely TS-SCI information, is assumed to cause a harm if not properly secured. You are a bright fellow. They do not go around making programs like this classified for no apparent reason, ie. there are reasons why the information is so valuable as to require it to be classified.

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