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December 17, 2005

TOM MAGUIRE has questions for the New York Times.

UPDATE: Lots more here. And there's this: "I cannot remember the last time, or first time, this newspaper reported a leak that was helpful to our war effort."

ANOTHER UPDATE: Much more here. Plus, "Frog-marched to the hoosegow?"

And Sen. John Cornyn is criticizing the Times rather harshly. In a later post, Tom Maguire finds some other members of Congress "annoyingly hypocritical," and observes:

News flash - we are still a representative democracy, despite the evident unwillingness of our opposition party to bestir itself. If this secret program was so outrageous, the Senate and House Democrats who had been briefed on it should have spoken up. Instead, we get profiles in courage as, per the Times, Reid, Rockefeller, and others are unavailable for comment.

My take: This story was bad for Bush on Friday, but it'll be bad for a lot of other people by next week. My earlier post on this topic is here.

MORE: Glenn Greenwald says that the Cold Fury post to which I link above misquotes the statute. [LATER: Al Maviva of Cold Fury says that Greenwald is misquoting him.]

I'm still hoping for a lengthier analysis by Orin Kerr. I've taught FISA in the past, but it's been a couple of years and I'm busy grading Administrative Law exams. Of course, Orin's probably got his own stack of bluebooks. In the post of Orin's that I linked to before, he noted that the area is very complex and unclear, and suggested that people read this District Court opinion. But note that it's only a District Court opinion.

It's also worth noting that there are two distinct issues here: Whether the wiretapping (or other interception) was legal, and whether the leak was legal. The leak almost certainly violated the law. The wiretapping is not so clear: Most people fail to appreciate how limited their protection against government surveilliance is, both under statutes and under constitutional law. And that's doubly so where international communications are concerned. (And, except for the small possibility of a constitutional-tort action, the main remedy for unconstitutional surveillance can be found in the exclusionary rule, which only comes into play if someone is prosecuted and the government tries to introduce the surveillance into evidence -- meaning that, as with the exclusionary rule in general, the remedy is worthless if you're never charged with anything, say because you're innocent.) Nor is this a phenomenon that can be blamed on the Patriot Act or the Bush Administration, particularly -- the protections are just quite limited indeed, and prone to technical parsing on such questions as whether the communications were "stored," even momentarily, en route. (For a non-FISA example of that kind of parsing, read the Steve Jackson Games opinion from 1994, long before the Patriot Act). You may find these legal interpretations offensive -- I do -- but they're the law as it is.

And this observation seems to be correct: "What is clear is that this is not some Watergate-type rogue operation, as seemingly hoped by some. In addition to repeated congressional notification, the program has been heavily lawyered by multiple agencies, including the Department of Justice and NSA and White House, and is regularly reviewed. Attorney General Alberto Gonzales and Secretary of State Condi Rice have both insisted that program is legal. The fact that some might disagree with whatever legal advice and conclusions the president has received does not make them right or the program illegal. But at this point, we, the public, don't really know what these news stories are really about, do we?"

MORE: Dafydd Ab Hugh has more questions for the Times. I think that there will be a lot of those.

FINALLY: Matt Rustler has advice for people on the left and right.