Thursday, December 29, 2005

FISA vs. the Constitution

FISA vs. the Constitution

Can Congress usurp the Constitutional powers of the President? The answer is "No" barring a Constitutional amendment. Have they tried anyway? Robert F.Turner, writing in the WSJ, says the answer is "Yes":
Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line.
Turner argues that the delegation of war powers to the President is clear and cannot be overridden by any law passed by Congress, even though signed by the then-sitting President:
Keep in mind that while the Carter administration asked Congress to enact the FISA statute in 1978, Attorney General Griffin Bell emphasized that the law "does not take away the power of the president under the Constitution." And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: "Our seeking legislation in no way should suggest that we do not believe we have inherent authority" under the Constitution. "We do," she concluded.
Intelligence gathering is implicitly a part of these powers and the need for secrecy, including secrecy from Congress, was noted by Benjamin Franklin "
In 1776, Benjamin Franklin and his four colleagues on the Committee of Secret Correspondence unanimously concluded that they could not tell the Continental Congress about covert assistance being provided by France to the American Revolution, because "we find by fatal experience that Congress consists of too many members to keep secrets."
Turner concludes as follows:
Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.

Wednesday, December 07, 2005

The CIA's Not-So-Secret War with George Bush

John Hinderaker in the Weekly Standard - Leaking At All Costs:

THE CIA'S WAR against the Bush administration is one of the great untold stories of the past three years. It is, perhaps, the agency's most successful covert action of recent times. The CIA has used its budget to fund criticism of the administration by former Democratic officeholders. The agency allowed an employee, Michael Scheuer, to publish and promote a book containing classified information, as long as, in Scheuer's words, "the book was being used to bash the president." However, the agency's preferred weapon has been the leak. In one leak after another, generally to the New York Times or the Washington Post, CIA officials have sought to undermine America's foreign policy. Usually this is done by leaking reports or memos critical of administration policies or skeptical of their prospects. Through it all, our principal news outlets, which share the agency's agenda and profit from its torrent of leaks, have maintained a discreet silence about what should be a major scandal.
The article focuses on the CIA leaks behind stories in the New York Times and the Washington Post about secret CIA renditions of terror suspects. Unlike the Plame Kerfuffle where the leak had little consequence to either the safety of Ms. Plame or national security, these stories clearly put people in danger - the Post said "is not publishing the names of the Eastern European countries involved in the covert program, at the request of senior U.S. officials.". As Mr. Hinderaker notes:

The twin leaks to the Times and the Post have severely impaired the agency's ability to carry out renditions, transport prisoners, and maintain secret detention facilities. It is striking that top-level CIA officials are evidently willing to do serious damage to their own agency's capabilities and operations for the sake of harming the Bush administration and impeding administration policies with which they disagree.
With respect to the Plame affair, Cliff Kincaid, writing for Accuracy in Media notes two columns on the same topic:
In a November 3 column in the Washington Post, Jim Hoagland confirmed that the Joseph Wilson affair was a CIA plot against President Bush.
Also writing about the Plame Kerfuffle that day was Victoria Toensing in the Wall Street Journal:
Toensing said that "The CIA conduct in this matter is either a brilliant covert action against the White House or inept intelligence tradecraft." The latter was a reference to the fact that Valerie Wilson could not possibly have been a true undercover CIA operative, and if it was the CIA position that she was, then the agency's methods for concealing its agents are laughable or incompetent.
Hinderaker's colleague at Powerline, Scott Johnson, had also written about the CIA-leak aspects of Plame back in early November - Three Years of the Condor:
THE SENATE INTELLIGENCE COMMITTEE REPORT on pre-war intelligence devotes 45 pages to intelligence on Saddam Hussein's possible efforts to acquire uranium yellowcake from Niger; of these, roughly 8 pages are devoted to events relating to Wilson's trip to Niger in February 2002. The report rebuts the claims Wilson peddled--first on background to Walter Pincus of the Washington Post, Nicholas Kristof of the New York Times, and others, in May and June of 2003, and then publicly under his own name, beginning with his Times op-ed column in July 2003.

According to Wilson, the oral report he made to the CIA discredited the evidence of any Iraq-Niger yellowcake deal and showed related documents might have been forged. Wilson to the contrary notwithstanding, the Senate Intelligence Committee report concluded that, "For most analysts, the information in the report [of Wilson's trip to Niger] lent more credibility to the original Central Intelligence Agency (CIA) reports on the uranium deal"--although the State Department disagreed.

In any event, Vice President Cheney had not been advised of Wilson's findings. As for the forged documents, according to the Senate Intelligence Committee Report, the intelligence community didn't acquire them until October 2002, long after Wilson's oral accounting on his trip. According to the "additional views" section of the Senate report (written by Senator Pat Roberts), Wilson had baldly fabricated his alleged disclosure of the forged documents:
On at least two occasions [Wilson] admitted that he had no direct knowledge to support some of his claims and that he was drawing on unrelated past experiences or no information. For example, when asked how he knew that the Intelligence Community had rejected the possibility of a Niger-Iraq uranium deal, as he wrote in his book, he told Committee staff that his assertion may have involved "a little literary flair."
Mr. Johnson asked the CIA why Mr. Wilson was not required to sign a standard non-disclosure agreement regarding his work and why CIA Analyst Michael Scheuer was granted permission to publish his anti-Bush tract "Imperial Hubris".

If Plame is old news, Thomas Joscelyn, also writing in the Weekly Standard, looks at some anti-Bush CIA spin - Anatomy of a Leak - How anonymous CIA sources spun the interrogation of Abu Zubaydah :
IN THE CIA's continuing campaign against the Bush administration, the agency has found the leaking of classified information to be a potent weapon. This is especially true with regard to the spinning of intelligence connecting Saddam's Iraq and bin Laden's al Qaeda. Consider, for example, the case of Abu Zubaydah, a top al Qaeda operative captured in March 2002.

despite the fact that the CIA had circulated the debriefing of Zubaydah "within the American intelligence community last year . . . his statements were not included in public discussions by administration officials about the evidence concerning Iraq-Qaeda ties."
And then we get this whine from an anonymous intelligence official:
". . . things pointing in one direction were given a lot of weight, and other things were discounted."
So let me get this straight - you have two pieces of intelligence - one says one thing and the other says the opposite - and you have to ...(this is tough) one as more likely than the other? You just can't say both are true just because they're contradictory? Isn't this the job of the CIA - to look at sometimes contradictory intelligence reports and decide which is more likely? Yet the CIA is complaining that this is being done - and by non-professionals! But what are they doing? Are they spinning things the way they want it to be?

IT TOOK MORE THAN A YEAR to learn the answer. On July 7, 2004 the Senate Intelligence Committee published its "Report on the U.S. Intelligence Community's Prewar Intelligence Assessments on Iraq." Many of the report's passages, including those related to Abu Zubaydah's debriefings, were ignored. Here is the complete passage regarding Zubaydah's testimony:

The CIA provided four reports detailing the debriefings of Abu Zubaydah, a captured senior coordinator for al-Qaida responsible for training and recruiting. Abu Zubaydah said that he was not aware of a relationship between Iraq and al-Qaida. He also said, however, that any relationship would be highly compartmented and went on to name al-Qaida members who he thought had good contacts with the Iraqis. For instance, Abu Zubaydah indicated that he had heard that an important al-Qaida associate, Abu Mus'ab al-Zarqawi, and others had good relationships with Iraqi intelligence. [Redacted sentence(s)] During the debriefings, Abu Zubaydah offered his opinion that it would be extremely unlikely for bin Ladin to have agreed to ally with Iraq, due to his desire to keep the organization on track with its mission and maintain its operational independence. In Iraqi Support for Terrorism, Abu Zubaydah's information is reflected as:

[Redacted] Abu Zubaydah opined that it would have been "extremely unlikely" for bin Laden to have agreed to "ally" with Iraq, but he acknowledged it was possible there were al-Qaida-Iraq communications or emissaries to which he was not privy. [emphasis added]

Abu Zubaydah's denial was, therefore, not nearly as clear cut as the Times's anonymous sources would have had us believe. (snip)

Zarqawi would, of course, go on to become the face of al Qaeda in Iraq and Zubaydah was in a position to know him well. Just a few years prior to his capture, at the turn of the new millennium, Zubaydah planned attacks with Zarqawi against targets in Jordan.

Tuesday, December 06, 2005

Cool Facts about Dick Cheney

From Ace of Spades HQ - some little known facts about Vice President Dick Cheney. Some good ones:

On his first interview as Vice President of the United States, he was asked what his leadership qualifications were. He answered, "My pimp hand is strong!"

When a new senator places his hand on the book to be sworn in, very few realize it is actually the Necronomicon until Cheney laughs and tells them "you're mine now".

Best ones are here.

Rumsfeld Fighting Technique

Fist of the West Side Posted by Picasa

See them all here.