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.