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Tuesday, February 07, 2006

Diamond not just in the rough, but out of bounds

Pasted below is my new Stanford Review article about Stanford Professor Larry Diamond's lawsuit against NSA spying. (Link.) Diamond is Stanford's version of Richard Clarke, a Democrat who is welcomed into a Republican administration and uses the credibility so gained to turn around and make the most unfounded partisan accusations. When will Republicans ever learn? NO DEMOCRATS.

Some important Review news: The Stanford Review has been indicted by Stanford University for violating Stanford's severe limits on door to door distribution of publications to students, a policy whose main purpose is to stop the Review from being distributed on campus. (Disclosure, I am on the Board of Directors of the Stanford Review). The conflict has gotten very serious and suit against the university is likely. Check the Review's website for the latest. You can also subscribe to the email version of the Review (a list of links to articles) here.

Diamond not just in the rough, but out of bounds

By Alec Rawls, published in The Stanford Review, 2/6/2006

President Bush, explaining the National Security Agency’s policy of spying on international communications in and out of America involving suspected terrorists: “[I]f somebody from al Qaeda is calling you, we'd like to know why.”[1]

Stanford Professor Larry Diamond: “If people from these parts of the world believe, or have reasonable cause to fear, that their communications with Americans will be intercepted by the United States government, will they continue to communicate?”[2]

Earth to Professor Diamond: That is one more reason to hang the traitors who revealed the secret surveillance program to the world, not a reason to sue the government for taking the most obviously necessary steps to protect the nation from terrorist attack.

“[T]he fact that somebody leaked this program causes great harm to the United States,” says President Bush.[3] Indeed, shortly after the program’s cover was blown, suspicious store clerks around the country started alerting the FBI about Middle Eastern men buying fifty and a hundred disposable cell phones at a time, likely in an attempt to evade NSA surveillance.[4]

But Diamond is not angry at the traitors who created problems for his work by revealing top secret surveillance. He reserves his ire for the President, joining in the ACLU’s lawsuit against the NSA’s warrantless spying program. “It is not simply what the president is having the NSA do,” says Diamond, “It is the unilateral and unconstitutional means by which he is doing it.”

Unilateral and unconstitutional? Pure demagoguery, on both counts. First, the Constitution most certainly does give the president the power unilaterally (without the consent of Congress) conduct warrantless surveillance of international security threats. As Attorney General Alberto Gonzales put it in his Georgetown speech last week:
It has long been recognized that the President’s constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States. Presidents have uniformly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice.[5]
Legal precedents on the other side: zero. Congress cannot by legislation limit the president’s constitutional authority to conduct warrantless searches of enemy threats any more than the president can by executive order curtail any of Congress’s constitutional authorities.[6] When Congress established the Foreign Intelligence Surveillance Act in 1981 (FISA), the boundary between Congress’s power and the president’s power on national security issues was bound to come up. In 2002, the FISA Court that was created by the act settled the question as follows:
The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.[7]
Thus President Bush could have acted unilaterally to protect the nation with warrantless surveillance, but in fact he did not act unilaterally. The FISA act includes a provision that:
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.[8]

The presumption was not that any war would only last fifteen days, but that Congress would within those 15 days authorize whatever further powers were called for to enable the conduct of a war, which is exactly what happened. We don’t actually have declarations of war anymore, but we did have, three days after the 9/11 attacks, the Congressional authorizations of power that the FISA act envisioned. The use-of-force resolution (which passed 420-1) authorized the President:
to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.[9]
Justice O’Connor held for the Court in Rumsfeld v. Hamdi that this Force Resolution authorized the normal incidents of military force (including military detainment of enemy combatants like Hamdi).[10] Intelligence gathering is certainly a normal incident of military force, so the Force Resolution empowers the NSA spying. As a result, the question of the exact boundary between congressional powers and presidential powers over warrantless searches is never reached. Congress authorized the president’s uses of power in this case, so there is no conflict to be resolved.

President Bush also briefed Congress regularly on the warrantless spying, and received hardly a protest. Even with all the post-exposure posturing, not one Congressman has called for the program to be stopped.[11] Unilateral? Unanimous is more like it. But Professor Diamond is “disturbed.” As capital “d” Democrats often do when the democratic process leads to results they don’t like, he declares our government’s nearly unanimous backing of warrantless searches “undemocratic.”[12] How can it be democratic, when it bothers him?

“Given the sort of people I am involved with,” he says, “there are strong grounds to believe that some of my telephone calls, and especially e-mail, have been intercepted.” Other people willingly submit to being searched at the airport or singled out for questioning because they understand that these steps must be taken in order to protect us all. Diamond can’t see that bigger picture. He feels put out, and that is what matters. He can’t even stand back far enough to blame his concerns about foreigners not being willing to talk to him on the traitors who exposed the surveillance.

Diamond’s statement on the ACLU website is replete with unfounded accusations of lawbreaking. Does it really not dawn on this professor that presidents have always had the power under our Constitution to intercept enemy communications in time of war? Where is he a professor again? Unbelievable.

No Mr. Diamond, what you say to people who are suspected of being terrorists is not a private matter between you and them. It is a matter of national security. You should have the grace to welcome surveillance, and save your ire for those who betray our secrets, instead of maliciously slandering the President who is working within the Constitution to defend our nation.


[1] In response to question asked by a reporter while the President was visiting troops at Brooke Army Medical Center in San Antonio Texas. Full transcript available at: http://www.whitehouse.gov/news/releases/2006/01/20060101.html.

[2] From “Why Stanford prof is suing Bush over NSA spying,” by Lisa Krieger, San Jose Mercury News, 1/19/2006: http://www.mercurynews.com/mld/mercurynews/living/education/13660737.htm. Quote seems to be excerpted from Diamond’s full statement on the ACLU website: http://www.aclu.org/safefree/nsaspying/23495res20060116.html.

[3] Also from the President’s remarks at Brook Army Medical Center, op cit.

[4] Surge in Sale of Disposable Cell Phones May Have Terror Link, ABC News, 1/12/2006: http://abcnews.go.com/WNT/Investigation/story?id=1499905.

[5] From: “Prepared Remarks for Attorney General Alberto R. Gonzales
at the Georgetown University Law Center, January 24, 2006”: http://www.usdoj.gov/ag/speeches/2006/ag_speech_0601241.html.

[6] A point made by John Hindraker in this excellent early post on NSA spying (Dec. 22nd): http://powerlineblog.com/archives/012631.php.

[7] From FISA court’s Sealed Case No. 02-001, discussed by John Hindraker at: http://powerlineblog.com/archives/012631.php. Hindraker reviews the precedents that Truong was following here: http://powerlineblog.com/archives/012975.php. Also, see the last of his “Ahabs” here: http://powerlineblog.com/archives/012969.php (critiquing NYT’s egregious misrepresentations of law and precedent).

[8] The “notwithstanding any other law” wording is a bit peculiar, since legislation cannot bind future legislation. The implication is that it is clarifying the backwards reference, that this provision is to supersede any existing restrictions on the conduct of surveillance.

This interpretation is backed up by the qualification stated in the section 1809 of the FISA act that a punishable violation has been committed only if the surveillance in question was “not authorized by statute,” indicating an anticipation that the FISA act would work in conjunction with later congressional authorizations. http://www4.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001809----000-.html (Other sources refer to this code section as section 109 of the FISA act. I do not know what accounts for this discrepancy).

[9] CNN, “Congress approves resolution authorizing force,” 11/15/2001: http://archives.cnn.com/2001/US/09/15/congress.terrorism/

[10] Findlaw summarizes the majority ruling:
Justice O'Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. Pp. 14-15. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=03-6696

[11] The few who are complaining are complaining only that they did not specifically authorize the program. (See “Hill seeks oversight of NSA wiretapping,” Baltimore Sun, 1/23/2006: http://www.baltimoresun.com/news/nationworld/bal-te.terror23jan23,1,3346093.story?coll=bal-attack-headlines.) But Congress is not constitutionally empowered to lay out the specifics of the president’s war-fighting. Congress can declare war, but it cannot tell the president how to fight a war. Thus it is the complainers who are seeking to act outside of their constitutional authority.

Diamond, as a supposed advocate for rule of law, should be behind the president, since the Constitution is behind the president. Instead, he acts as if only Congress is elected by the people, and is an agent of democracy. A more ignorant position is hardly conceivable.

UPDATE: an editorial from the NYT 1-29-06 makes the same claim I do about no Democrats having come out against the spying program, only against its supposed lack of proper authorization. Powerline discuses the editorial here: http://powerlineblog.com/archives/012975.php. They quote the Times as writing:
"President Bush believes if Al Qaeda is calling somebody in America, it is in our national security interest to know who they're calling and why," [Karl Rove] told Republican officials. "Some important Democrats clearly disagree."

Mr. Rove knows perfectly well that no Democrat has ever said any such thing....

FURTHER UPDATE: Powerline reports on the Senate’s NSA hearings that as of February 7th, the Democrats are trying many different positions on spying, but still not a one of them is suggesting that we shouldn’t be doing it. http://powerlineblog.com/archives/013073.php

[12] On Diamond’s Democrat party membership, I only have a partial quote, but it seems pretty conclusive. It is from a Commentary article by Joshua Muravchik called “Iraq and the Conservatives” that mentions Diamond, but only a few snippets are accessible without subscription, including the following: “…Although a Democrat, and an opponent of the Iraq war, he was invited by Condoleezza Rice, then Bush’s national security adviser, to join the occupation authority in late 2003 as an adviser on democratization…” I think that can only be a reference to Diamond. (http://www.commentarymagazine.com/Summaries/V120I3P52-1.htm.)

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