Analysis: White House retreats under pressure on domestic eavesdropping

[DeepModem Mom]

NYT: News Analysis
White House Retreats Under Pressure
By SCOTT SHANE
Published: January 18, 2007

WASHINGTON, Jan. 17 — The Bush administration’s abrupt abandonment on Wednesday of its program to eavesdrop inside the United States without court approval is the latest in a series of concessions to Congress, the courts and public opinion that have dismantled major elements of its strategy to counter the terrorist threat.

In the aftermath of the 2001 attacks, President Bush asserted sweeping powers to conduct the hunt for operatives of Al Qaeda, the detention of suspects and their interrogation to uncover the next plot. But facing no new attack to justify emergency measures, as well as a series of losses in the courts and finally the Democratic sweep of the November election, Mr. Bush has had to retreat across the board.

“I think there’s no question that both politically and legally, the president has been chastened,” said Douglas W. Kmiec, professor of constitutional law at Pepperdine University and generally a supporter of the administration’s interpretation of executive power.

Harold Hongju Koh, the dean of Yale Law School and a critic of the administration’s legal theories, said the president’s strategy might have provoked so strong a judicial and Congressional rebuff that it would ultimately accomplish the opposite of his goal. “I think historians will see it as an exorbitant and extreme theory of executive power that ended up weakening the presidency,” Mr. Koh said.

That would be an extraordinary outcome, and one that is far from assured. In some areas, the administration has preserved its freedom to act, notably in persuading Congress last fall to deny prisoners held in Guantánamo Bay, Cuba, the right to challenge their detention in American courts. The full details of the new approach to the domestic eavesdropping program have not been publicly disclosed....

http://www.nytimes.com/2007/01/18/washington/18assess.html

[shance]

1. Really? How is a "Secret Court" retreating ?

As my friend used to say, don't take wooden nickles.........

;)

[DeepModem Mom]

2. I believe they are "retreating" to the policy in effect from 1978...

until the Bushies abandoned it after 9/11. From the article:

"Among the laws passed in the post-Vietnam, post-Watergate era was the Foreign Intelligence Surveillance Act of 1978, a hard-fought compromise between the security agencies and civil libertarians. The National Security Agency and the F.B.I. could keep eavesdropping on spy and terror suspects in the United States, but only by justifying their actions to a federal judge in secret hearings before the Foreign Intelligence Surveillance Court.

For more than two decades, that compromise served, and government eavesdropping on American soil took place only under court order. But after the Sept. 11 attacks, the White House decided that the court approval process was too slow and cumbersome to match the terrorist threat and that the president had the power to bypass the FISA act and order surveillance on his own authority as commander in chief."

As I recall, the process was not at all slow and cumbersome, as authorities could eavesdrop when haste was required and then, within a limited time period, get retroactive permission from the FISA Court.

[shance]

3. They know and respect no laws. When will we learn?

n/t

[DeepModem Mom]

5. True. Just because they say it doesn't make it so. nt

[Hosnon]

6. The judges of the "secret court" are not secret and will be able to provide

some indication whether or not the new procedures are being utilized.

These guys are not toadies. Remember that one of them resigned in protest when this whole thing originally came to light.

[DeepModem Mom]

7. That's right -- I remember that now. nt

[shance]

8. Really Duncan? Tell us how they are "not secret"? Who are they and how are

the procedures being utilized?

If they aren't secret, then by all means, show us how transparent they are.

[Hosnon]

9. Here's a list of the current sitting judges:

http://www.fas.org/irp/agency/doj/fisa/court2006.html

These judges are judicial branch judges...they are independent of the executive branch. The court is secret in that all of the proceedings are sealed (for national security reasons). I trust these judges as much as I trust any others. If the Bush Administration does not do what it says it will do, I am confident they will make it known.

The actions of Judge James Robertson are a specific source of that confidence. He resigned in protest from the FISA court when the program was first revealed by the Bush Administration:

http://www.cbsnews.com/stories/2005/12/21/politics/main1150626.shtml

That article also points out that additional judges on the court were not pleased with the program either.

Again, I have as much faith in these judges as I have faith in the ability of an independent judiciary to check the power of the President.

[Kagemusha]

4. I'm amazed at the avalanche of bad press over mere wooden nickles.

There's so much of it that the admin is taking damage over a mere head fake.

[Jeffersons Ghost]

10. K&R for...