Libertarian Leanings

Legality of the surveillance leak

For a while now, MacRanger has been saying that the Justice Department is very interested in Senator Jay Rockefeller.  Most recently, the Mac cites this American Spectator blog post.  According to the Spectator Senator Rockefeller may have some company.

CLOSING IN
Word out of the Defense Intelligence Agency and law enforcement sources has the FBI and the Department of Justice comparing notes and dates on who in the U.S. Senate received national security briefings on both the overseas terrorist prisons and the NSA overseas terrorist monitoring programs, and when those briefings took place.

"The number of Senators who received briefings is not as large as people think," says one law enforcement source. "These were programs with a limited 'Need to Know" list on Capitol Hill."

Federal investigators looking into the leaks of both those programs to the press are zeroing in on the Senate, and are expected to continue to hold interviews of both Senators and their senior staff in the coming days. "This investigation is moving forward at a pretty fast clip," says the law enforcement source. "We're not looking at a two-year probe. We're talking about moving fast."

As yet, cooperation from the media outlets -- the Washington Post and the New York Times has been minimal, but investigators aren't sure they will need full cooperation to make the case. "The Hill may be all we need," says the source.

Focus of the investigation remains on the staffs of two Senators, Sen. Jay Rockefeller and Sen. Dick Durbin, as well as committee staff for the Senate Intelligence Committee and career intelligence staff detailed to U.S. Senate offices and committees. Last week, it was revealed that on February 17 Senator Rockefeller had sent a letter to the White House claiming that the Bush Administration had illegally leaked classified materials to Washington Post reporter Bob Woodward for a book project he was working on with cooperation from the Bush White House.

A number of people of Capitol Hill and in the intelligence community interpreted the letter as an attempt by Rockefeller to play defense should it be revealed that his office or staff tied to him on the Intelligence Committee are somehow involved in the serious leak cases.

Note the wording that federal investigators will "continue to hold interviews of both Senators and their senior staff in the coming days."

Legality of the NSA surveillance

Victoria Toensig says that listening in on our enemies has never been against the law.

In Article II, the Constitution establishes the president as commander in chief. As such he has inherent authority to conduct warrantless surveillance for the purpose of acquiring foreign intelligence information. He does not have the authority to close banks, seize steel mills, or raise our taxes; he does have it to get battlefield information about an enemy who has killed thousands of us on our soil and threatens to do so again.

No court opinion denies this constitutional authority to the president. All federal appellate courts that have considered the issue, including the FISA appeals court, have recognized such authority. The Supreme Court, over three decades ago, emphatically specified in the Keith case that it would leave this issue to another day. In doing so, the Court provided a clear indication that foreign surveillance is not domestic surveillance.

The Keith Court held that the president does not have authority to conduct warrantless searches of entities that are "domestic," i.e., where "[t]here is no evidence of any involvement, directly or indirectly of a foreign power." This decision, the Court stressed, makes "no judgment on the scope of the president's surveillance power with respect to the activities of foreign powers, within or without this country." (Emphasis added.) Keith made clear that "domestic" wiretapping is a legal term of art that does not turn on whether the surveillance takes place in the United States. Media misuse of that term to characterize the NSA surveillance, where one party is foreign and linked to al Qaeda, indicates an absence of legal sophistication or an attempt to prejudice the issue, or both.

I hesitate to speculate on their legal sophistication, but clearly the media hope to prejudice the issue.  Read the whole thing.

Power play

In an analysis of the shrine crisis in Baghdad, Mohammed of Iraq the Model concluded that a religious power play is under way.  I made a similar speculation yesterday, little more than cynical conjecture on my part, but Mohammed has personal observation to back up his point.

So…the protests were not spontaneous like clerics want us to think; in fact the only spontaneous protest was the one in Samarra itself!  I live here and I've seen the whole thing. The demonstrations in Baghdad began after the fatwa and I saw how shop keepers unwillingly closed their shops when the men in black with their arms and loudspeakers ordered them to do so "in the name of the Hawza" and I saw the sad look on the faces of people abandoning their only source of income for a time that could go indefinitely.

One might ask why would Iraqis obey such orders?

I say, Imagine yourself standing in front of your shop watching the police retreat from the street while angry men with arms come and order you to leave your shop and join the "spontaneous protests"!  Believe me you will find no other choice but to join the mob or face the risk of being considered an infidel traitor. I'd also like to point out the provoking language that was used in the calls for many protests. In one example I heard in person, the guy holding the mic said "today they attacked your Imam's shrine and tomorrow they will take your women, so rise up".

The reactions and protests were far from spontaneous like clerics claim they were. The protests were organized and under supervision of commanders who have clear goals and those commanders were intent on provoking a reaction that carries clear signs to the Sunni, secular and moderate parties...

Mohammed sees two positives:

However, it seems there are also some positive outcomes from this incident and its aftermath; the first one in my opinion was the performance of the Iraqi army which had a good role in restoring order in many places. Actually the past few days showed that our new army is more competent than we were thinking...

The other positive side is represented by the line we've seen drawn between clerics and politicians.  In spite of the attempts of clerics to look like as if they were the defenders of national unity with all their meetings, joint prayers and hugs, the political leaderships got a sense of their growing danger and the meeting at Jafari's home (which al-Hakeem didn't attend) showed that the government is keen to keep the country intact and the government systems as functional as possible to contain the crisis. This meeting indicates that politicians have realized that those clerics whether Sunni or Shia are the origin of the problem and are ready to coup on even their political allies which made the politicians more aware of the danger imposed by clerics on the project of building a state ruled by the law.

Inching closer to success.

Pennichuck still under attack

I recently received email from SmartWater.org informing me of an upcoming meeting of the Nashua Board of Aldermen.  According to SmartWater, Nashua plans to divert education funds to the cause of taking Pennichuck Corporation by eminent domain.  Pennichuck is our water company.  Here is the full text of the SmartWater email.

Tomorrow night, Aldermen will vote on whether or not they'll use money intended for students with disabilities to fund the city's attempted hostile takeover of Pennichuck.

Up for consideration are nearly half a million dollars the State of New Hampshire intended the school district to use to help offset expenditures for the most needy students with disabilities - rather than support Nashua's neediest children, this state money would pay the consultants and attorneys advising Nashua in its eminent domain battle.

Added all up, we're talking $3 million of your money for consultants, who will cash all of these checks, even after the city's efforts are eventually rebuffed, either by the New Hampshire Public Utilities Commission, the courts, or the voters.

So how does this work? Aldermen did some "government accounting" and changed a few words in a resolution to move money intended for a specific purpose into the general fund, enabling them to change its use. What aldermen are doing is arguably clever but unquestionably wrong and not in the spirit of the law. State representatives fought hard to secure this special purpose funding for Nashua's most needy students - not to use the money to pay consultants and attorneys, or for any other purpose.

The consultants and attorneys know this battle is going to continue and cost millions more. It's ridiculous.

We urge you to call your aldermen TODAY and tell them to stop this and VOTE NO to taking money intended for special education to fund an eminent domain battle that three-quarters of residents do not support.

At-Large - David Rootovich - 603-891-0039

At-Large - James R. Tollner - 603-566-1267

At-Large - Steven A. Bolton - 603-886-0205

At-Large - David W. Deane - 603-882-9617

At-Large - Brian S. McCarthy - 603-880-1606

At-Large - Fred S. Teeboom - 603-889-2316

Ward 1 - Mark S. Cookson - 603-892-3207

Ward 2 - Richard LaRose - 603-889-6049

Ward 3 - Daniel Richardson - 603-546-5554

Ward 4 - Marc W. Plamondon - 603-889-7876

Ward 5 - Michael J. Tabacsko - 603-880-4666

Ward 6 - Robert A. Dion - 603-882-9141

Ward 7 - Richard P. Flynn - 603-883-1223

Ward 8 - Dave MacLaughlin - 603-891-2397

Ward 9 - Gregory Williams - 603-881-7109

This takeover has been in the works for more than a year.  My last post on it was back in December of 2004, after the PUC had ruled against Nashua, saying the city could not pursue the taking of any property beyond its borders.  Pennichuck's property is mostly outside of Nashua.  I thought at that time the issue would be dropped, but it wasn't.  Apparently the mayor is determined.

U.S. to blame

Iraq's wave of religious violence has momentarily ebbed as Iraqi religious leaders agreed to stop killing each other. 

Sunni and Shi'ite religious leaders also met Saturday, agreeing to prohibit killings and ban attacks on each other's mosques. The clerics issued a statement blaming "the occupiers," meaning the Americans and their coalition partners, for stirring up sectarian unrest.

"We demand that the occupiers leave or set a timetable for the withdrawal," the clerics said.

I take that to mean they haven't given up hope of imposing a theocracy in Iraq by force.  A crucial first step is the departure of coalition forces before the Iraqi Police and National Guard are up to speed.

Legislative racketeering in Colorado

A Town Hall column by Paul Jacob describes the rough and tumble of politics in Colorado.

After the election, Sen. Hanna learned that the statewide Association of Realtors, of which the Jefferson County group is a member, had endorsed her Republican opponent, Tori Merritts. And not only that, they also contributed $1,400 to Merritts's campaign.

Hanna won, so there was really no need to rub anybody out. Still, the Senator was peeved. She fired off a letter to the Realtors Small Donor Committee, the political action committee of the statewide Association of Realtors, suggesting that "$1,400 in post-election debt relief" might be a wise move on their part "in order to set things straight."

The not-so-subtle threat worked, to a degree. The realtors soon sent Sen. Hanna a check for $400. But of course loan sharks don't accept less than full payment. Why should politicians? So, Sen. Hanna demanded the rest.

Did I say demand? Let's just say she humbly requested the rest. Her follow-up letter to the Realtors Small Donor Committee read:

My reparations request stands. It seems a rather small price to pay for creating a fracture in my relation with your organization. It is my hope that you will make our relationship whole again. There are going to be some very important issues ahead of us. You have a choice. So do I.

Senator Deanna Hanna (D-Lakewood) will face a probe by Colorado's Senate Ethics Committee that was requested by Senate Majority Leader Ken Gordon (D-Denver) after Hanna's strong arm fund raising was reported in the Rocky Mountain News.

...Steve Welchert, a top Democratic political consultant and lobbyist, offered something of a defense of Sen. Hanna. He asked rhetorically, "Did Deanna Hanna push the envelope a little too far?" And answered, "Maybe so. But it's an everyday occurrence at the legislature. I've seen it. I've heard it. I've witnessed it."

Oh, he's certainly got a point, it's just the ho-hum, everyday, run-of-the-mill racketeering one would find in any capitol . . .

As the envelope expands, be on the lookout for a new round of campaign finance reform that will codify acceptable new levels of political extortion.

Libertarian v. Conservative

In Sunday's Opinion Journal column, Musings About the Drug War, George Melloan leaned a bit libertarian with his contemplation of a conservative taboo. The legalization of drugs.

Economist Milton Friedman predicted in Newsweek nearly 34 years ago that Richard Nixon's ambitious "global war against drugs" would be a failure. Much evidence today suggests that he was right. But the war rages on with little mainstream challenge of its basic weapon, prohibition.

We've come to view alcoholism as a disease, but still seem to consider drug addiction a moral failing.  The real failing is the war on drugs, itself.  The sad part is we've been through all this before.  Prohibition was a failure of disastrous proportions, as it provided the business of crime with optimum conditions to grow and prosper.  It was Prohibition that turned organized crime into very big business.  Huge business.  The war on drugs is a failure of even greater proportions because it has lifted the business of crime from merely big business into the arena of national policy in some countries.

As the Journal's Mary O'Grady has written, a good case can be made that U.S.-sponsored efforts to eradicate coca crops in Latin America are winning converts among Latin peasants to the anti-American causes of Cuba's Fidel Castro and Venezuela's Hugo Chavez. Their friend Evo Morales was just elected president of Bolivia mainly by the peasant following he won by opposing a U.S.-backed coca-eradication program. Colombia's huge cocaine business still thrives despite U.S. combative efforts, supporting, among others, leftist guerrillas.

As the criminal business of drugs enjoys growth and prosperity, so also grows the power of the drug enforcement, both at the expense of personal liberty.  There is strong incentive for continued growth.

The drug war has become costly, with some $50 billion in direct outlays by all levels of government, and much higher indirect costs, such as the expanded prison system to house half a million drug-law offenders and the burdens on the court system.

With a budget of $50 billion you can bet there are a lot of folks who want to keep that gravy train running.  Add to that the immense power vested in drug enforcement through the arbitrary confiscation of property to be used in their fight, and we find we've created a business of fighting the drug war that's nearly as profitable as the drug business itself.

So what's the alternative? An army of government employees now makes a living from the drug laws and has a rather conflictive interest in claiming both that the drug laws are working and that more money is needed. The challenge is issued: Do you favor legalization? In fact, most drugs are legal, including alcohol, tobacco and coffee and the great array of modern, life-saving drugs administered by doctors. To be precise, the question should be do you favor legalization or decriminalization of the sale and use of marijuana, cocaine, heroin and methamphetamines?

The answer is yes, and not just for the sake of personal liberty.  There is a pragmatic case to be made.  By legalizing drugs and making them available to users on something like a prescription basis we could begin to force the criminal participants out of the business.  It may be that the best we can hope for is to reduce their market share, but that would be an improvement over our current predicament.  By using a prescription-like system, we would also be better able to track drug users and improve the chances that some form of treatment would be applied and that the treatment would be effective. 

With so much evidence before us, proving that free countries are prosperous countries, I should think it would be more widely recognized that people are our most precious resource.  Turning only some people into criminals for the disease of addiction is not only unjust, it's an unwise use of resources.

The council has spoken...

As you may or may not already be aware, members of the Watcher's Council hold a vote every week on what they consider to be the most link-worthy pieces of writing around... per the Watcher's instructions, I am submitting one of my own posts for consideration in the upcoming nominations process.
Here is the most recent winning council post, here is the most recent winning non-council post, here is the list of results for the latest vote, and here is the initial posting of all the nominees that were voted on.

Who outed Valerie Plame?

Or perhaps the more pertinent question would be, "Who cares?"  Apparently nobody.

In a most remarkable development, U.S. District Judge Reggie B. Walton has ruled that the defense team for I. Lewis Libby is not entitled to know the identity of a government official who may have been the first to reveal the indentity of Valerie Plame.  In a development that is considered a blow to Libby's defense, Judge Walton decided, according to the Washington Post,

to continue to protect the anonymity of one administration official, whom Libby's attorneys described as a confidential source about Plame for two reporters, one of them apparently Washington Post Assistant Managing Editor Bob Woodward...

Defense attorneys had said they needed to know the official's identity and the details of his conversations with the two journalists to show that Libby was not lying when he testified that many reporters knew about Plame's identity.

But Walton said the source's identity is not relevant, and there is no reason to sully the source's reputation because the person faces no charges.

Last November the Post reported as hard fact what they said was only "apparently" true this morning.  According to Jim VandeHei and Carol D. Leonnig, the Post's own Bob Woodward learned of Plame's identity a month before Robert Novak disclosed it in his famous column.  And Mr. Woodward was willing to say so under oath. 

Washington Post Assistant Managing Editor Bob Woodward testified under oath Monday in the CIA leak case that a senior administration official told him about CIA operative Valerie Plame and her position at the agency nearly a month before her identity was disclosed...

Woodward's testimony appears to change key elements in the chronology Fitzgerald laid out in his investigation and announced when indicting Libby three weeks ago. It would make the unnamed official -- not Libby -- the first government employee to disclose Plame's CIA employment to a reporter. It would also make Woodward, who has been publicly critical of the investigation, the first reporter known to have learned about Plame from a government source.

It was at the urging of the press that Special Prosecutor Fitzgerald was given the task of investigating and prosecuting the individual who leaked the identity of Valerie Plame.  Just to remind ourselves of what he was supposed to be doing, let's refer to the text of his December 30, 2003 letter of appointment from James S. Comey.

By the authority vested in the Attorney General by law, including 28 U. S .C. §§ 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. § 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.

One might conclude Fitzgerald took his appointment seriously.  At his press conference announcing the indictment of Scooter Libby, he emphasized that at issue was a breach of national security.

FITZGERALD: The fact that she was a CIA officer was not well- known, for her protection or for the benefit of all us. It's important that a CIA officer's identity be protected, that it be protected not just for the officer, but for the nation's security.

Valerie Wilson's cover was blown in July 2003. The first sign of that cover being blown was when Mr. Novak published a column on July 14th, 2003.

But Mr. Novak was not the first reporter to be told that Wilson's wife, Valerie Wilson, Ambassador Wilson's wife Valerie, worked at the CIA. Several other reporters were told.

In fact, Mr. Libby was the first official known to have told a reporter when he talked to Judith Miller in June of 2003 about Valerie Wilson.

But that was in October, before our anonymous administration official and Bob Woodward both stepped forward to lend a hand to the Fitzgerald investigation.  So now that the dastardly outing of Valerie Plame has been solved, can we call the investigation a success?  Apparently not.

To understand why not, it might help to know, how the goals of the investigation have changed, since they are no longer clear.  In early February 2004 Fitzgerald requested and received confirmation that the scope of his investigation included,

"any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses;"

This was little over a month into his investigation.  But does this mean he could abandon the original goal altogether?  Not entirely.  In his explaining his decision to force Judith Miller to testify before Fitzgerald's grand jury, U.S. Circuit Judge David S. Tatel called it a matter of national security.  According to the Washington Post:

"While it is true that on the current record the special counsel's strongest charges are for perjury and false statements rather than security-related crimes ... perjury in this context is itself a crime with national security implications," he wrote.

To better understand why "perjury in this context is itself a crime with national security implications" it would help to have more of that quote.  As luck would have it, J.M. Hanes of posted a bit more of it on Quasiblog. 

Insofar as false testimony may have impaired the special counsel’s identification of culprits, perjury in this context is itself a crime with national security implications. What’s more, because the charges contemplated here relate to false denials of responsibility for Plame’s exposure, prosecuting perjury or false statements would be tantamount to punishing the leak.

Judge Tatel keeps Libby's charges closely tied to Plame's exposure.  There may not even be a crime if Libby's actions are not related to the outing of Valerie Plame or its investigation. 

Call me simple minded and unsophisticated, but it seems to me the revelation of another administration official who leaked Plame's identity before Libby was supposed to have done it, supports Libby's supposedly false denial.  One might further think the defense team would be entitled to explore those possibilities, but Judge Walton said the reputation of our anonymous official deserves protection "because the person faces no charges". 

Why not?  Didn't this the person compromise our national security by revealing the identity of Valerie Plame?  Isn't this anonymous official the person Fitzgerald was supposed to be looking for in the first place?  This case has gone beyond bizarre.

Update, December 28, 2010:  Having noticed that this post still gets an occasional hit, I thought I might as well include the answer to the question posed at the top.  It was former Deputy Secretary of State Richard L. Armitage.  Here are some choice bits from a September 1, 2006 Washington Post article.

WE'RE RELUCTANT to return to the subject of former CIA employee Valerie Plame because of our oft-stated belief that far too much attention and debate in Washington has been devoted to her story and that of her husband, former ambassador Joseph C. Wilson IV, over the past three years. But all those who have opined on this affair ought to take note of the not-so-surprising disclosure that the primary source of the newspaper column in which Ms. Plame's cover as an agent was purportedly blown in 2003 was former deputy secretary of state Richard L. Armitage.

Mr. Armitage was one of the Bush administration officials who supported the invasion of Iraq only reluctantly. He was a political rival of the White House and Pentagon officials who championed the war and whom Mr. Wilson accused of twisting intelligence about Iraq and then plotting to destroy him. Unaware that Ms. Plame's identity was classified information, Mr. Armitage reportedly passed it along to columnist Robert D. Novak "in an offhand manner, virtually as gossip," according to a story this week by the Post's R. Jeffrey Smith, who quoted a former colleague of Mr. Armitage.

I'm not so certain I would agree that Armitage passed Plame's identity along "in an offhand manner, virtually as gossip."  In two years prior to his conversation with Armitage, Novak couldn't get the time of day from the guy.  Then suddenly he invited him in for a chat.  Why then?  And why Novak?  But let's go back to the Post article:

It follows that one of the most sensational charges leveled against the Bush White House -- that it orchestrated the leak of Ms. Plame's identity to ruin her career and thus punish Mr. Wilson -- is untrue. The partisan clamor that followed the raising of that allegation by Mr. Wilson in the summer of 2003 led to the appointment of a special prosecutor, a costly and prolonged investigation, and the indictment of Vice President Cheney's chief of staff, I. Lewis "Scooter" Libby, on charges of perjury. All of that might have been avoided had Mr. Armitage's identity been known three years ago.

[...]

Nevertheless, it now appears that the person most responsible for the end of Ms. Plame's CIA career is Mr. Wilson. Mr. Wilson chose to go public with an explosive charge, claiming -- falsely, as it turned out -- that he had debunked reports of Iraqi uranium-shopping in Niger and that his report had circulated to senior administration officials. He ought to have expected that both those officials and journalists such as Mr. Novak would ask why a retired ambassador would have been sent on such a mission and that the answer would point to his wife. He diverted responsibility from himself and his false charges by claiming that President Bush's closest aides had engaged in an illegal conspiracy. It's unfortunate that so many people took him seriously.

Yes, it is unfortunate, and it's even more unfortunate that people still take him seriously.  Hollywood even made a movie about the Wilsons, casting them as heroes.  Pure B.S. of course, as was the whole sorry affair.

The other Iraq

In his Washington Times column Victor Davis Hanson describes an Iraq that remains hidden from the American public.

I recently listened to members of the newly elected Iraqi provincial council in strife-torn Kirkuk. All were enthusiastic about their new responsibilities. They were unabashedly argumentative with one another over security, electricity and oil production -- but still confident they could govern their own affairs. As the meeting broke up, a female council member whispered, "Tell the Americans thanks, but ask them to have patience with us."

He concludes,

It was nearly impossible to remove Saddam, foster democracy in the heart of the ancient caliphate and restore in a relatively short time what took the Saddam's coterie three decades to destroy. Meanwhile, all this must be done surrounded by Iran, Syria and Saudi Arabia in the midst of a larger war against Islamic fundamentalism and under global scrutiny from a largely hostile audience.

What amazes is not so much the audacity of even thinking the United States could attempt such a thing but that it may just pull it off after all -- if only we remain patient.

I've been a believer from the start.  I can be patient.