HH: John Eastman, a question for you. Does the president of the United States, in time of war, have the authority to order the surveillance of our enemies abroad in touch with their agents operating in the United States?
JE: Of course.
HH: Does he have that authority even if those agents operating in the United States are American citizens?
JE: Yes, he does.
HH: And does he have that authority, even if he does not have a warrant to conduct that surveillance?
JE: Yes, he does, and look. This authority comes directly from Article 2 of the Constitution. Every president going back to George Washington has recognized this. The president that signed the foreign intelligence surveillance act in 1978 specifically, said that of course, this can’t be considered a constraint on the powers that the president has directly under Article 2. That president was Jimmy Carter, not Ronald Reagan or George Bush. This is a pretty well-established incident of war. And what’s most surprising to me is that what the New York Times, and whoever in the Department of Justice, or in the National Security Agency leaked this ongoing tool in that war, have very likely committed treason. I mean, it’s tantamount to somebody in England discovering that Churchill had…and the Churchill administration had figured out the enigma code for the German coding maching, and had revealed that, so that that tool could no longer be used in the prosecution of the war. This really is over the top.
Professor Erwin Chemerinsky disagrees, of course, but the breathless calls for impeachment and assertions of dictatorships in the making are just silly, and transparently so. On Sunday I posted on the Keith case and the undeniable fact that the Supreme Court has refused to assert that there is a warrant requirement for surveillance of the agents of foreign powers operating in the United States even if those agents are United States citizens. Here’s the key admission from Erwin:
HH: So Erwin Chemerinsky, in the case of United States V. United States District Court, did the Supreme Court, in Justice Powell’s opinion, rule that it was specifically not ruling on the president’s authority to conduct surveillance of foreign powers in contact with their agents in the United States, even if those agents were citizens?
EC: That’s correct, though of course….
Powerline has much more, including commentary on the FISA court’s presiding judge’s move to arrange a special meeting of the court to receive a briefing on the NSA program. The Washington Post’s account is full of the stuff that will attract the attention of every power hostile to the United States and interested in our country’s technological capabilities as well as the names of various judges involved in the oversight of those capabilities. This cavalier approach to the most sensitive matters concerning our intelligence operations is stunning, and when the next 9/11 Commission meets to sift through the devastation of the next 9/11 and ask why, pencil in a few days of hearings on how the MSM and leakers grinding various axes compromised the methods and sources of the American intelligence community.
On Tuesday’s program, Newsweek’s Jonathan Alter asserted that the Valerie Plame “outing” was a much more serious matter than the original leak of the NSA program to the New York Times. I don’t doubt Alter really believes that absurd position, but ignorance among journalists as to what they are giving away should not shield the leakers. From my interview with Senator John Cornyn yesterday:
HH: Should the leakers be prosecuted, Senator Cornyn?
HH: And should any investigation be done under seal in the Senate? Or in open hearing?
JC: Well, I don’t know how we can have an open hearing on all aspects of this, since it’s a highly classified program. That’s one reason why I spoke out about the New York Times compromising this, letting our enemies know exactly what we’re doing.
We are watching a meltdown unimaginable on 9/12: The left wing MSM and the partisan opponents of George Bush who couldn’t beat him in November of 2004 are carrying on their campaign against the president and endangering Americans to do so. They went Ahab some time ago, but the evidence of their collective derangement is now undeniable.
From the New York Post this morning:
It is a column by Andrea Peyser on the transit strikers that begins “THE 9/11 terror attacks couldn’t kill his business. No, the villains threatening to rob Jay Park of his livelihood are far more treacherous, selfish and insane.”
As the piece makes obvious, the striking transit workers have destroyed their own reputation in an astonishingly stupid decision to strike in the week before Christmas. Any strike would have been a terrible decision, but the timing of this one will land the union in the hall of fame of stupidity.
The collapse of the United States Senate as a credible institution has been underway for some time, but the escapades yesterday have brought it to a new low. Extending the Patriot Act for six months in a time of war, refusing a vote on ANWR, barely approving a very modest curtailment in runaway entitlement spending –all these events make you think that Senate Democrats have the same advisors as New York’s transit union.
Not that the Senate GOP is in much greater shape. The inability of the Republican majority to force a showdown earlier in the year, or to carry the day on two of the three major items dooms Bill Frist’s presidential campaign, and may have cost Mike DeWine his Senate seat. Watching Bill Frist close the session last night was painful, his rhetoric as tired as his face, and the empty chairs and behind him symbolized the chamber that will not be led. DeWine’s incomprehensible vote against allowing a vote on ANWR –only looney Lincoln Chafee was with him from the GOP side– undid the modest rehabilitation that had been underway since DeWine joined with John McCain and Lindsey Graham in the Gang of 14 fiasco that sent the Senate into its nose dive last spring.
What the various senators do not seem to grasp is that new media has changed their chamber’s visibility. They are unaware that C-SPAN –which has been there forever, they think, and doesn’t much matter– now has an audience of commentators that doesn’t trumpet the center-left line. When various senators stand for long periods saying incredibly stupid things, the world either watches or quickly hears about it. And the conclusion is reached that this is not a group of people we want running the country.
Some of the body’s truly dense menmbers, like Boxer and Durbin, are beyond electoral reach because of their states’ electorates. But others are on the ballot and will find out what the contry thinks about their insouciance in time of war. There are open seats in Maryland and Minnesota, and voters there will have to decide whether they want to add to the number of obstructionist Democrats who would rather shutter the Department of Defense than allow exploration for oil in ANWR. Mark Kennedy and Michael Steele are hardly thorough-going conservatives, but they are responsible men, not given to hysterics of the sort that Robert Byrd belched forth yesterday.
West Viriginia voters are going to have to decide whether the state can afford to keep the comedy show going or whether, perhaps, Senator Byrd is so far down his particular road that he won’t even realize he’s been retired by the voters. New Jersey voters, already used to Democratic Party corruption, will have to ask themselves whether inviting another 9/11 –the result of Democratic Party obstruction– is what they want out of their new senator.
Bill Nelson of Florida and Ben Nelson of Nebraska, and perhaps Kent Conrad of North Dakota, have to worry that their party has asked too much of them. Can Pennsylvania and Montana voters really want to add to the numbers of Democrats in the Senate by retiring either Rick Santorum or Conrad Burns? DeWine’s best chance will be to argue that Sherrod Brown would be an even more feckless choice.
Michigan’s Stabenow, Washington’s Cantwell, and New Mexico’s Bingamen are considered safe, but will these states’ voters endorse the silliness of the national Democrats and the fevers of the party’s hard left caucus?
The 2006 Senate elections will again be a national referendum on whether or not we are in a war, and whether or not we want to be serious about that war. The Democrats are not serious, and some of them are acting as though 9/11 didn’t happen and the jihadists don’t exist. There are serious problems within the Senate GOP to be sure, but they get it right most of the time, even if they cannot summon the numbers to do crucial things in the nation’s defense. In November the voters must do more trimming of the silly senators, and perhaps in 2007 the Senate can resume the hard business of attending to the nation’s defense.
In the end, 40 Democrats were joined by Senator James Jeffords of Vermont and two Republicans, Lincoln Chafee of Rhode Island and Mike DeWine of Ohio, in blocking the bill. Mr. Frist brought the total to 44 when he switched his vote for procedural reasons. Four Democrats supported the drilling.
“I’m glad that my colleagues stood up to say that the legislation and process was wrong,” said Senator Maria Cantwell, Democrat of Washington, who led the opposition.
Senator DeWine of my home state is no Lincoln Chafee. He gets most big votes right, though today he stumbled badly. There is no coeherent argument against exploration in ANWR, so Senator DeWine enters a difficult re-election year branded as the only GOP senator as light in the thinking department as Lincoln Chafee. It isn’t an enviable place to be. If DeWine helps Judge Alito, though, all will be forgiven, though not forgotten.
Senator Cantwell has clearly telegraphed to the people of Washington State that she is from the far side of the left side of American politics. The state is closely divided on political lines. Perhaps it will want some responsible representation in D.C.?