Newsbusters and the Wall Street Journal: Dumb and Dumber

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During the recent right-wing howling over the British terror plot once again the fringe right has proved itself incapable of having a intelligent discussion about national security and the Constitution. This is from a wing-nut site called Newsbusters, dated 9-11-2006, Thank NSA Wiretapping for Foiled Terror Plot?

Will the New York Times write stories on how eavesdropping is what alerted U.S. authorities to the terrorist airplane attack? Time magazine reported in an exclusive that the “U.S. picked up the suspects’ chatter and shared it with British authorities.”

The operation involved cooperation between British and American authorities.

Britain’s MI-5 intelligence service and Scotland Yard had been tracking the plot for several months, but only in the past two weeks had the plotters’ planning begun to crystallize, senior U.S. officials tell TIME. In the two or three days before the arrests, the cell was going operational, and authorities were pressed into action. MI5 and Scotland Yard agents tracked the plotters from the ground, while a knowledgeable American official says U.S. intelligence provided London authorities with intercepts of the group’s communications.

The Wall Street Journal says media and Democratic opposition to the programs now looks foolish after the foiled terror plot.

The plot was foiled because a large number of people were under surveillance concerning their spending, travel and communications. Which leads us to wonder if Scotland Yard would have succeeded if the ACLU or the New York Times had first learned the details of such surveillance programs

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It looks like Newsbusters is run by someone only capable of winning arguments with small frail straw-man. No Democrat, let me repeat that, NO Democrat of any prominence has said that we shouldn’t spy on suspected terrorists. Our laws allow for spying on the British and any communications going into and out of Britain. That is not even an issue. None of the plotters as far as we know were in the US or US citizens. Newsbusters and the editorialists at the WSJ are simply lying sacks and not speaking to the real issue. President Bush and conservatives want to spy on any American citizen in America anytime they want without a warrant. Newsbusters and the WSJ are liars when they state the issue in any others terms. The NSA can by law spy on the British and the Pakistanis all day without restriction and no Democratic member of Congress or the Senate has voiced any objection to that. No one has any objection to spying on suspects in the US if they are non-US citizens. We have no objection to the spy first arrangement in FISA whereby the NSA may spy on someone for 72 hours before getting a warrant. Either Newsbusters and WSJ are simply the most immoral of liars or they cannot grasp the constitutional issues involved. If the first case is true this will not be the first or the last time that our nation will pay the price for conservative’s slim grasp of morality and the truth. If the second is true, one could say that whatever they have to offer by way of opinion on constitutional issues are just the irrelevant rantings of mentally deficient nationalists that could care less about the rule of law and the common good.
The Suit Challenging the NSA’s Warrantless Wiretapping Can Proceed, Despite the State Secrets Privilege: Why The Judge Made the Right Call

It seems possible that Judge Walker’s decision might be upheld by the Supreme Court (though by a slim majority) if it ever reaches there. For not only the Rasul and Hamdan decisions, but also a decades-old Supreme Court decision, Reynolds v. United States, support the idea that the Executive simply does not have the one and only say-so when it comes to the state secrets privilege.

In Reynolds, decided in 1953, the Court already foresaw that the Executive might try to get a rubber stamp from the courts for state secrets claims, and said that no such stamps would be forthcoming. The Court stressed, instead, that “[t]he court itself must determine whether the circumstances are appropriate for the claim of privilege….” (Emphasis added.) This language clearly implies that the court can’t just accept the Executive’s word for it when it claims that privilege is warranted in a given case or situation; it must undertake an independent factual inquiry of its own.

It’s just this kind of independent factfinding that has been anathema to the Bush Administration, which would prefer to make, for instance, its “enemy combatant” certifications without any judicial review at all. Failing that, the Administration has sought a rubber stamp from courts, asking them to simply review affidavits from executive branch officials containing conclusory claims that a given person is an enemy combatant.

But Reynolds makes no bones about what the legal rule is: When it comes to the state secrets privilege, independent factual determinations by the court are absolutely necessary, and rubber stamps must be thrown out the window.

That should be no surprise: What’s surprising is the Bush Administration’s position that it should be able to “certify” facts that the federal courts cannot question, rather than submitting to courts’ basic function of assessing evidence for themselves.

In our constitutional system, courts are not puppets, but independent actors in their own right. As Judge Walker put it, “the court has a constitutional duty to adjudicate the issues that come before it.” And “adjudication” means hearing evidence, and making independent decisions — not just reading papers that are filed, and dismissing a case whenever the government asks you to.