Pleased To Meet You

Pajamas Media is covering the hearings on the legality of the NSA's Terrorist Surveillance Program. Be sure to check out the 'NSA Files.' meanwhile it appears that Senator Dick Durbin (D-IL) has been introduced to us.

Durbin: What outfit are you with?
[Paul] Mirengoff [of Power Line]: Power Line and Pajamas Media.
Durbin: 'Jamas Media?
Mirengoff: No. Pajamas Media.
Durgin: Oh, Pajamas Media. I'm not familiar with that publication.

[More exchange about Mirengoff's question. Apparently Durbin didn't want to answer]

Durbin: I don't know who you are.
Mirengoff: Well, Dan Rather knows who we are.

[LAUGHTER from the crowd.]

(Thanks to Roger L. Simon)

UPDATE: Watch the video.

Comments

[guruoo]

Here's what President Bush had to say about these wiretaps during the '04 Presidential campaign:

http://media.putfile.com/Bush-On-FISA

[Tully]

The exchange was hilarious.

But even funnier (to me) was the exchange leading up to it!

I then asked why, if the Democrats disagree with the administration's understanding of what AUMF authorizes, they don't present clarifying legislation telling the administration that its interpretation is incorrect. This would enable the Senate to vote on whether it thinks listening to calls from al Qaeda to the U.S. is a necessary and proper measure to prevent another attack.

Indeed. Why not, eh?

[Justin]

The funniest thing about the exchange is the rosharch (spelling??) test-like aspect to it. Conservatives tend to think it makes Durbin look silly, but I've seen the same exchange posted on liberal blogs (eschaton, for one) and use it to make Powerline look like tools for the administration.

[baldilocks]

Justin:

I noticed that. Rorschach, indeed. (I didn't look it up so my spelling might be wrong too.) ;-)

[guruoo]

Wow! Even President Washington?
I knew about Lincoln from Artimus in Wild Wild West, but Washington?

Attorney General Alberto Gonzales:
"President Washington, President Lincoln, President Wilson,
President Roosevelt have all authorized electronic surveillance
on a far broader scale."
Video:
http://media.putfile.com/Gonzales-Washington-Lincoln-wiretaps

[Tully]

The problem with presenting the exchange as illustrating Power Line as a "tool" of the admin is that it highlights Dan Rather & the MSM as tools of the Dems.

I don't think it made Durbin look silly--not any sillier than any other posturing politico, anyway--but it did nicely point up that it's not being treated as a substantive issue in Congress, but as a chatter point. Durbin (or ANY Senator) can introduce "corrective" legislation if they so desire, rather than just waving the bloody flag and rabble-rousing. But they don't.

[justin]

Yeah, but gururoo, Congress passed a law in 1978 that governed such behavior, and the President is being accused of violating that law. What Washington or Lincoln did is sort of irrelevant (although it may be relevant to a discussion of Article II powers, which may be what Gonzales means).

Baldilocks, your spelling looks more likely to be correct than mine :-)

[Tully]

That's exactly what Gonzales meant, Justin, though I gotta admit that Washington authorizing electronic surveillance is indeed a hoot. :-D Maybe Ben Franklin was in on it....

Lincoln did, though. Both sides in the Civil War tapped the telegraph lines. Washington authorized the opening and copying of all mail going to the British side of the lines. Preferably untraceably, with the mail resealed. It gave him an enormous intel advantage.

Congress can pass any laws they like, but if they encroach the powers of abother branch they're unconstitutional. And the executive has not just the right but the duty to ignore or refuse to enforce laws he considers unconstitutional, even if he fails to veto them. See Myers v. US & Freytag v. Commissioner & INS v. Chadha (among others).

Which is why a legitimate "powers" dispute is generally not criminally actionable, and the remedies are purely political.

[Justin]

Tully--I'm very familiar with both of those cases and I don't think that either is on point--one has to do with appointing a postmaster (President's appointment power)and one has to do with the legislative veto, but of which powers have a very strong basis in the text of the Constitution (and the debate leading up to ratification) as being Presidential powers.

Congress specifically passed FISA to curtail executive abuses, especially Nixon's. Just because President's did something before the law was passed that the law made illegal doesn't mean that Congress is trying to take away the President's constitutional powers. Now, we have the Executive branch unilaterally deciding to disobey an act of Congress by relying on very difficult and thorny Consitutional interpretations. The Administration may be correct in its interpretation, but it is irresponsible on their part to force the issue for absolutely no reason as they (i) could have went to Congress and (ii) there appears to be no real-world reason for them not to have followed FISA.

It's good the see the Congress finally asserting itself as an appropriate check on the Executive, although I'm a little miffed that they let Gonzales get away without giving sworn testimony.

So, was Franklin's famous electricity experiments really an early attempt at developing electronic surveillance?? (-;

[Tully]

Congress specifically passed FISA to curtail executive abuses, especially Nixon's.

Um, since Nixon was out of office by then, would you care to rephrase? Or do you believe that Congress was worried about him spying on Americans from the House o' Disgrace in Yorba Linda, in his capacity of private citizen?

Now, we have the Executive branch unilaterally deciding to disobey an act of Congress by relying on very difficult and thorny Consitutional interpretations.

Contentious hyperbole, Justin, assuming facts not in evidence. As you admit in the next sentence! It's not "unilateral" if there's precedent--and there is. Indeed, they could hardly "disobey" in any fashion BUT "unilaterally," no? But it's not "disobeying" if any one of their interpretations or justifications are correct.

Both of your alternatives, I note, are fallacious reasoning. The first is simply irrelevant--you do not need to ask permission if you already possess the authority. That would be a courtesy, not a requirement. The second is false-to-fact, from what little we know of the actual intercept program and the realities of FISA compliance. As has been noted over and over again from people who've had to comply with it. And indeed, it leads us right back to the first--if you are not in violation of the underlying statute, or if the statute itself is unconstitutional in the application, then there is no reason to use the process. Like intentionally wearing a leg cast when your legs are healthy. Why?

And yes, cases about Congress over-reaching ARE on point. As are cases about the executive intentionally ignoring unconstitutional statutes.

Whether or not the statute itself is unconstitutional in restricting executive authority in the particular disputed application turns on facts and circumstances we don't know. But if the executive has a reasonable basis to conclude it encroaches Article II authorities in application, and that his own constitutional duties require that he exercise those encroached authorities, then he has the duty to exercise those Article II authorities regardless of the statute. I note this leads us back to the point that it's not truly a criminal dispute but a powers dispute, and that the principles of the cases cited are indeed relevant.

Now, the arguments offered by the admin leave Congress an "out," among other options. Congress can simply accept the powers argument--not likely. Congress can decline to enter a "powers" fight, and accept the statutory exclusion interpretation. [Both are ways of folding without showing cards, and avoiding showdown, but the first sets a constitutional precedent.] Or they can reject both the exclusion interpretation--which is a weak case for them (as it's a reasonable interpretation, though not definitive) and challenge by "clarifying" legislation, and challenge the powers interpretation. [Call and raise, all in.] Which is what Mirengoff's question related to. Or they can bluster and posture, without showing cards. [Call and bluff, wait for the next card to be dealt.]

But if they accept the statutory interpretation by not challenging it, they avoid the powers fight, no real powers precedent is set, and only a very narrow statutory one--one that can be ignored or extinguished by legislation in the future if they wish. That's the "out." It leaves them able to write AUMF legislation differently or to clarify Congressional intent through further legislation. As they wish, without conceding any precedents.

So far it looks like #3, while dithering over whether or not to take the out.

LOL. Given Franklin's methods, one would have to assume that his "electronic surveillance" was indeed somewhat presumptous in challenging a higher power!

[Justin]

Um, since Nixon was out of office by then, would you care to rephrase?

No, FISA was partially, if not almost entirely, in response to Nixon's abuses. I think that's pretty convential wisdom, do you really disgree with that?

It's not "unilateral" if there's precedent--and there is.

Um, by definition it is unilateral in that the actions were not blessed/authorized by a court or the congress. Powerline may have authorized it too, but that doesn't count ;-)

Whether or not the statute itself is unconstitutional in restricting executive authority in the particular disputed application turns on facts and circumstances we don't know.

Agreed, so the administration should release it's internal legal reasoning for their unilateral decision. Why are they so secretive, and why won't Gonzales be sworn in?

Matt Yglesias is on point. I think:

Beneath all the smokescreens what they're really trying to say is that they think FISA is unconstitutional, so they ought to be allowed to violate it. What I can't understand is why they won't just say so and see if they can get a court to agree. Are the legal arguments here so terrible that there's no chance even the new, Alito-ified court won't agree?

I agree with you that point #3 may be the most likely, but I do not think it is the most desirable. And what is the precedent? That the Executive Branch can determine whether statutes are unconstitutional and congress will re-write a statute to comply with the Executive's wishes? Also, how do you think the debate will go the next time a President asks for authorization to use force? Not well, I'd imagine.

Bottom line is that this statute has been around for 30 years, and now all of the sudden there are arguments that it is unconstitutional? Maybe it is, but this is an attempt to expand the power of the President (how much is obviously up for debate), and my bias is too always come down against a powerful Executive, no matter what party the President is in.

As for the cases--no one would argue that Congress cannot restrict a power given to the President by the Constitution (e.g., removing executive appointees from office), but that just leads us in a big circle back to the question about whether the searches are a Constitutional Presidential power in the first place.

[Tully]

RE: Nixon--A joke falls flat. I was egging you about your tenses. :-)

Agreed, so the administration should release it's internal legal reasoning for their unilateral decision.

The supporting authorities statement is here. As for releasing their internal discussions, I would say that's a straw man begging the issue of executive privilege, which would lead us back to powers and authorities, and we've already done that circle. Thomas Jefferson started that dance back during the Burr trial.

Gonzalez did not resist swearing in at all. He said "Fine. My answers won't change." Your question should be adressed to Specter, who refused to have him sworn.

Yglesias misses the point that the courts decide on cases, not hypotheticals. Can't bring it to 'em without the cases.

By that definition of unilateral, absolutely everything the executive branch does that is not specifically blessed or authorized by a court or congress in advance would be "unilateral." That would wipe out most of the entire body of federal adminstrative regulations.

Yep, we're going in circles. Nothing left but to discuss logical fallacies, or wait for more info.

[Justin]

RE: Nixon--A joke falls flat. I was egging you about your tenes. :-)

I never said I was quick witted :-)

[DeoDuce]

That's FREAKIN AWESOME!