Here are all of Mark’s comments on NRO The Corner since the NY Times Dec 16 eavesdropping story first broke.

December 16
EAVESDROPPING INS AND OUTS [Mark R. Levin]
Some brief background: The Foreign Intelligence Security Act permits the government to monitor foreign communications, even if they are with U.S. citizens — 50 USC 1801, et seq. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.

The reason the President probably had to sign an executive order is that the Justice Department office that processes FISA requests, the Office of Intelligence Policy and Review (OIPR), can take over 6 months to get a standard FISA request approved. It can become extremely bureaucratic, depending on who is handling the request. His executive order is not contrary to FISA if he believed, as he clearly did, that he needed to act quickly. The president has constitutional powers, too.

It’s also clear from the Times piece that Rockefeller knew about the government’s eavesdropping, as did the FISA court. By the time this story is fully fleshed out, we’ll learn that many others knew about it, too. To the best of my knowledge, Rockefeller didn’t take any steps to stop the eavesdropping. And he’s no friend of this administration. Nor is he above using intelligence for political purposes, as his now infamous memorandum demonstrates.

But these leaks — about secret prisons in Europe, CIA front companies, and now secret wiretaps, are egregious violations of law and extremely detrimental to our national security. They are far worse than any aspect of the Plame matter. The question is whether our government is capable of tracking down these perpetrators and punishing them, or will we continue to allow the Times and Washington Post determine national security policy. And if these wiretaps are violative of our civil liberties, it’s curious that the Times would wait a year to report about it. I cannot remember the last time, or first time, this newspaper reported a leak that was helpful to our war effort.
Posted at 12:06 PM

December 17
NSA HYSTERICS [Mark R. Levin]
I notice the Los Angeles Times and other newspapers are using carefully cherry-picked “experts” from the ranks of the ACLU and the former Clinton administration to provide comment on the president authorizing the NSA to do what the NSA does, i.e., spy, among other things. Many of these “experts” — joined by a few uninformed, media-obsessed politicians like Arlen Specter and Russ Feingold — have claimed shock at the eavesdropping and have either suggested or pronounced the president’s acts illegal or even unconstitutional.

Now, what exactly do we know from these hysterical reports? Not very much. As I wrote yesterday, the FISA permits the government to monitor foreign communications, even if they are with U.S. citizens. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power. Today’s Los Angeles Times writes that the program “was designed to enable the NSA to monitor communications between Americans in the U.S. and people overseas suspected of having ties to terrorist networks.” Fine. That’s not illegal or even unusual. And these “experts” know it. But the truth is that we have no idea of the contents of the president’s executive order and, therefore, we have no idea what conduct we’re supposed to be offended about. Perhaps the executive order expanded the authority of the NSA or expedited the processing of wiretaps. We just don’t know. Unfortunately, the administration’s hands are tied for while revealing the executive order’s contents to the public might well demonstrate the appropriateness and legality of its conduct, thereby deflating the effort to create a scandal, it may well be too damaging to ongoing operations.

But clearly many members of Congress who have not spoken on the record do know about the program. As the president said today, Congress has been consulted, and often. It’s remarkable that the New York Times, Los Angeles Times, and the Associated Press failed to uncover this fact. Indeed, they did the opposite. In addition to cherry-picking experts from the ACLU and the Clinton administration, the media are cherry-picking from their favorite politicians to give the opposite impression, i.e., that Congress was in the dark. And who better to react hysterically to hysterical reporting than Arlen Specter. The fact that Specter may not have been consulted, as he doesn’t serve on the Senate Intelligence Committee, is of no consequence, except to Specter. He might want to ask his colleagues on the Senate Intelligence Committee what they know before stomping all over their congressional-oversight turf. But for a brief mention of Jay Rockefeller’s knowledge of the program in yesterday’s New York Times, we’ve hear nothing about of from the relevant committee members. Indeed, their silence, if anything, suggests to me their likely awareness of the program, consistent with the president’s statement that Congress was aware.

What is clear is that this is not some Watergate-type rogue operation, as seemingly hoped by some. In addition to repeated congressional notification, the program has been heavily lawyered by multiple agencies, including the Department of Justice and NSA and White House, and is regularly reviewed. Attorney General Alberto Gonzales and Secretary of State Condi Rice have both insisted that program is legal. The fact that some might disagree with whatever legal advice and conclusions the president has received does not make them right or the program illegal. But at this point, we, the public, don’t really know what these news stories are really about, do we?
Posted at 03:21 PM

December 18
NSA, CONGRESS, RESPONSIBILITY & WAR [Mark R. Levin]
So we now know that congressional leaders and the intelligence committees were, in fact, informed of the NSA’s activities. However, Nancy Pelosi says she was reluctant about it, just as Rockefeller reportedly claims to have been, according to the New York Times’s original story. Harry Reid on FOX said he was briefed, but now demands an investigation. I assume there will soon be calls for a special prosecutor–not to investigate serial and damaging national-security leaks to the Times and Washington Post, but the president.

What is the point of briefing congressional leaders and relevant committees about executive-branch operations if they refuse any responsibility for the information they receive, and if they believe the information discloses constitutional, legal, and civil-liberties violations on which they refuse to act? As I watched Meet the Press this morning, I was appalled at the lack of seriousness of the coverage. Within five minutes of the program’s start, Tim Russert invoked Richard Nixon. Sen. Carl Levin was asked if the president might have broken the law. He answered that if he didn’t follow FISA he did. Levin earlier complained that he didn’t know what laws the president may be using to justify the NSA program. Keep in mind; at this point we don’t know what violations are even being asserted in any of this discussion. (This is the same Levin who has led efforts to conceal the Barrett Report, which allegedly includes stunning findings about the misuse of the IRS by the Clinton administration. I noticed Russert didn’t bring this up.)

Russert continually referred to domestic spying on U.S. citizens. Neither he nor we know what’s involved here. Some of those monitored may be citizens, they may not be. Some may also be receiving communications from al Qaeda operatives abroad, in which case warrants aren’t required and their citizenship is irrelevant. Some may be covered by the warrant requirements of FISA, some of the operations may not be. My guess, and that’s all it is, is that the NSA ran into difficulties tracking individuals who were able to elude surveillance (and the FISA warrant requirement, if applicable) by moving from place to place and switching between and among various communication technologies. The secret FISA court, and many of its procedures, isn’t exactly secret to anyone, including the enemy. If so, or if I’m close, the claims that the president authorized domestic eavesdropping on U.S. citizens is the most hysterical and, frankly, reckless face to put on this. Moreover, the likelihood that top lawyers at the Justice Department (including career attorneys) and other agencies would have conspired to break the law, and kept it secret for years, for the purpose of intercepting communications among law-abiding U.S. citizens is truly far-fetched.
I said yesterday that it would probably serve the president’s political interests if he could release his executive order; however, doing so might endanger certain national-security operations. Russert and Levin demanded repeatedly that Condi Rice spell out the legal basis for the president’s authority. I expect, sadly, that national security will give way, once again, to public disclosure, as the only way to get past this latest attempt at scandal.

(Booking suggestion to Meet the Press: If you want to ask for administration officials familiar with FISA, book Attorney General Alberto Gonzales, who is apparently thoroughly competent to discuss it; if you want to ask senators about the NSA program, book senators who were actually briefed and are aware of the program, not the likes of Levin, who is as clueless as Arlen Specter, for neither sit on the Senate Intelligence Committee).

Finally, with allegations of lying about pre-war intelligence, exposing prison “rendition” in Europe, demanding withdrawal from Iraq, undermining aggressive interrogation of al-Qaeda terrorists, killing key aspects of the Patriot Act, and now eavesdropping, is it just me, or is there an unrelenting attack on core aspects of our post-9/11 homeland security efforts? I have no doubt we will win the war on terrorism overseas, as long as we succeed in overcoming the same domestic elements–among them, media, academia, anti-war left–which brought defeat in Vietnam. After all, 9/11 was no distant act of war, the polls indicate the American people see much of this as partisan politics by the Democrats, and it reinforces the view that Democrats are weak on national security.

Perhaps it’s time to more aggressively scrutinize the motives and tactics of the war’s opponents–rather than mostly react to their allegations. So far, the opponents have largely received a pass. It is often assumed that they mean well, that they want us to win the war, that they would never put politics before country, and so forth. Yet, many on the Left–including Democrat leaders in Congress–feel no similar obligation when they accuse the president of lying, authorizing torture, and violating the Constitution. Besides, they are undermining our war effort.
Posted at 02:11 PM

INVESTIGATE [Mark R. Levin]
Let me join my friend Michael Ledeen in calling for a criminal investigation into this latest leak of classified information to the New York Times Company, which presumably would inevitably lead to James Risen, et al, appearing before a grand jury like, say, Judith Miller. I assume the Times won’t object, having so eloquently and repeatedly demanded such an investigation in the Plame matter. It was only a matter of time until the monster the Times helped unleash would turn on it. I know the big media only care about the Plame case because they hoped it would ensnare Karl Rove, but the NSA and Justice Department need to get to the bottom of this leak, or at least try — media bias and hypocrisy to the contrary.
Posted at 07:28 PM

OH MY. [Mark R. Levin]
What’s this? [Link to ECHELON Program]
Posted at 10:47 PM

December 19
ECHELON AND NOW [Mark R. Levin]
Under the ECHELON program, the NSA and certain foreign intelligence agencies throw an extremely wide net over virtually all electronic communications world-wide. There are no warrants. No probable cause requirements. No FISA court. And information is intercepted that is communicated solely between U.S. citizens within the U.S., which may not be the purpose of the program but, nonetheless, is a consequence of the program. ECHELON has been around for some time. The media and members of Congress didn’t accuse Bill Clinton, under whose administration the program apparently moved into full swing, of “domestic spying” or violating the Constitution. Is ECHELON constitutional? Congress hasn’t defunded it. So, it seems to me this entire current debate, unleashed by the New York Times last week, about expanding the NSA’s eavesdropping authority (exactly what is expanded and how, we still aren’t certain) is, well, disconnected from reality.
Posted at 10:38 AM

December 20
LISTENING IN [Mark R. Levin]
George Will says in today’s column: ” … Congress, if asked, almost certainly would have made such modifications of law [respecting surveillance] as the president’s plans required. …”

In his news conference yesterday, Attorney General Alberto Gonzales addressed this.

Question: If FISA didn’t work, why didn’t you seek a new statute that allowed something like this legally?

Gonzales: … We’ve had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be — that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that — and so the decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

The news conference was actually quite useful in explaining a wide variety of issues and decision. Too bad it was all but ignored by the big media.
Posted at 12:33 AM

CLASSIFIED HISTORY [Mark R. Levin]
Maybe if Jay Rockefeller and some of his other colleagues (Richard Shelby and Patrick Leahy come to mind) and their staffers could be trusted more with classified information, his CYA letter wouldn’t have been necessary. This memorandum, laying out a strategy for politicizing U.S. intelligence, comes to mind.
Posted at 10:27 AM

THE ROCKEFELLER FILES [Mark R. Levin]
I am curious about something. Jay Rockefeller has released a letter in which he complains about the NSA program on which he’d been briefed. He said the July 17, 2003 letter had been sealed and secured in the offices of the Senate Intelligence Committee. So, he goes to great lengths concealing his views for to voice them might reveal classified information. In his letter he expresses frustration that he can’t even consult with staff or counsel, and he can’t draw on independent legal or technical expertise. Dianne Feinstein said last night that she has not discussed this matter with Rockefeller because she’s not on the Senate Intelligence Committee and it would be inappropriate for her to do so. Fine so far. But if Rockefeller went to such lengths to conceal his views, and if even Feinstein (a fellow senator) insists that she can’t discuss this with Rockefeller (presumably, then, Rockefeller can’t discuss it with her and other colleagues who weren’t briefed), then from where might the New York Times have reported this tidbit in its original story:

“According to those officials and others, reservations about aspects of the program have also been expressed by Senator John D. Rockefeller IV, the West Virginia Democrat who is the vice chairman of the Senate Intelligence Committee …”

I can’t imagine this trail would be difficult for leak investigators to follow. Who knew that Rockefeller had reservations? Maybe they should start with, say, Rockefeller?
Posted at 05:14 PM

December 21
LEADERSHIP [Mark R. Levin]
I think we’ve been looking at this NSA thing the wrong way. I have a question for Specter, Snowe, Hagel, Boxer, Kerry, Dasher, Dancer, Prancer, and Vixen: Other than declaring war (which it did in two joint resolutions) and raising money to fund an army (which it also has done), what is the role of CONGRESS or the JUDICIARY in making decisions about the prosecution of a war? They certainly don’t have the constitutional authority to seize war-making powers from the president. And the Fourth Amendment, which the president’s and the war’s detractors seek to apply to military operations, is inapplicable as it applies to criminal justice matters. Indeed, every court (for those who demand judicial review) that has opined on these authorities has said that the president has inherent constitutional power when it comes to foreign-intelligence gathering and the prosecution of war. And they are right. Is any senator familiar with the separation of powers doctrine? Neither Congress nor the courts have inherent or any other kind of constitutional power to wage war. And, yes, waging war includes securing intelligence against the enemy, as it always has.

Moreover, where is the historical precedent for a commander-in-chief, especially during war, being required to ask permission from a court to spy on the enemy, including intercepting communications? Did Abraham Lincoln (Civil War), Woodrow Wilson (World War I), FDR/Harry Truman (World War II), Ike (Korean War), and/or JFK/LBJ/Richard Nixon (Vietnam War) use probable cause as the basis for intercepting enemy communications? Did they go to court each time and ask permission from a judge to intercept foreign intelligence? Of course not. And as pointed out by Byron York and others, recent presidents such as Jimmy Carter, Ronald Reagan, and Bill Clinton have all issued presidential orders making clear that while they will attempt to follow FISA, they retain their inherent constitutional authority to gather foreign intelligence, protect our national security, and wage war. The Fourth Amendment doesn’t apply to al-Qaeda terrorists as they conspire to blow up our cities. (Perhaps John McCain will add the Fourth to the Fifth, Eighth, and Fourteenth Amendment guarantees in his al-Qaeda bill of rights. Far-fetched, you say? Don’t believe it.) Frankly, I can hardly believe we are having this absurd debate.

I am also troubled by some very radical and incoherent arguments (or should I say, allegations) put forth by certain law professors and lawyers. If I heard correctly, on the Fox News Channel the other night Jonathan Turley accused the president of committing a federal crime and an impeachable offense by failing to comply with FISA. So, presumably, every president who has exercised his inherent constitutional powers during war (and, by the way, President Bush has done so in an extremely limited way compared to many past presidents in past wars) exercised power they didn’t have? And it’s only after the creation of the FISC in 1978 that intercepting enemy communications became lawful? You have to be kidding. Bruce Fein has things so backwards that he accuses the president of seizing congressional authority when, in fact, it’s the other way around.

As for the politics of all of this, I will leave that to others. To write, as George Will did recently, that the president should have gone to Congress for authority to do what he already had the power to do is all well and good. But the suggestion that doing so would have, in this case, limited the political fallout is, I believe, simply wrong. This is a Congress, particularly a Senate, which is growing increasingly irresponsible when it comes to keeping our nation’s secrets (Jay Rockefeller, Dick Durbin, Ron Wyden, Richard Shelby, and Patrick Leahy have all been involved in leaks and leak investigations). And it includes among its big accomplishments the al-Qaeda bill of rights and gutting the Patriot Act. Let me go so far as to say that this Senate is weak on national security. No, it hasn’t cut-off funding for the war. And it won’t because the American people support their troops. However, it is chipping away at the tools the president is using to fight the enemy, bit by bit, as if implementing the ACLU’s legal strategy against the war. More and more aspects of the war are being litigated and decided by judges, and the present demand that the president bow to the judiciary is part of the effort.

The president has not acted in a reckless or lawless way. He has sought and received extensive legal advice from scores of legal experts, many of whom are no doubt civil servants. He has numerous internal checks built into the process, requiring a constant review of procedures. And despite the pronouncements of some on the Hill, certain members of Congress were briefed, i.e., it’s not as if they weren’t aware of the program. Sometimes a president has to do what’s right in his eyes and be prepared to defend it, as Bush is now. We used to call that leadership.
Posted at 09:47 AM

RE: CONWAY & FISA [Mark R. Levin]
Let’s look at George Conway’s excellent post. He cites this for Congress’s authority pass FISA and set forth the conditions under which the president, as commander-in-chief, is to prosecute the war: “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, . . . To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces;…To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

George appears to argue that Congress has much broader power over the conduct of war than the Constitution provides through the necesssary and proper clause. But it is well settled that Congress does not have the authority to micro-manage military operations, and there’s no reason intercepting foreign intelligence should be any different. This is an excessive view of the clause. Respecting the issues relevant to this debate, Congress’s authority includes the power to declare war; to make laws relating to POWs and detainess; to raise and fund a military; and to make laws regulating the armed forces. These are the powers to which the necessary and proper clause applies in the context of our debate. George appears to focus on the language dealing with regulating the armed forces.

Congress does, in fact, regulate the armed forces in many respects. It can decide on uniforms, salaries and pensions, age requirements, set up a military justice system, etc. But Congress has no authority to command the armed forces. That is clearly an Art. II, Sec. 2 power conferred on the executive. And the way these clauses have been squared, and can only be squared, is fairly straightforward — military tactics and techniques, including, I would argue, the collection of intelligence on the enemy, are left to the executive branch. They always have been. Indeed, FISA is a relatively new (1978) and rare effort by Congress to regulate an activity that, in my view, belongs within the president’s broad authority. See Federalist No. 69.

The necessary and proper clause does not, and cannot, be read as excessively as George suggests without neutralizing to a significant extent the president’s commander-in-chief authority. The framers understood that in Congress they were creating a legislative body incapable of making timely and flexible military decisions especially during war. So, yes, Congress can regulate the military, but it cannot lead it.
Posted at 04:39 PM

December 22
DA COURTS [Mark R. Levin]
So, we should turn to the Supreme Court for clarity on search and seizures? I fear not. I say to the judiciary and Congress, keep your hands off the president’s commander-in-chief powers.
Posted at 05:10 PM

December 23
ATTENTION GEORGE WILL AND CHARLES KRAUTHAMMER. [Mark R. Levin]
The president did seek congressional suppport for gathering foreign intelligence but was rejected. As the statutory route was blocked, he exercised his constitutional authority. Now, that doesn’t mean, as Tom Daschle asserts, he therefore didn’t believe he had the constitutional authority to act. It simply means he thought it would be better if Congress supported his efforts to protect the nation.
Posted at 11:59 AM

December 26
YOO AND PRESIDENTIAL POWER [Mark R. Levin]
John Yoo, a brilliant lawyer, played an important role in writing major aspects of the administration’s legal policies respecting detentions and surveillance. So, not surprisingly, he has been under attack for several years now. Today’s Washington Post has an article in which the first paragraph states: “John Yoo knows the epithets of the libertarians, the liberals and the lefties. Widely considered the intellectual architect of the most dramatic assertion of White House power since the Nixon era, he has seen constitutional scholars skewer his reasoning and students call for his ouster from the University of California at Berkeley.”

I reject completely the claim that the Bush administration has pursued “the most dramatic assertion of White House power since the Nixon era.” The fact is the Clinton administration asserted more power than either the Bush or Nixon administrations. Despite the Supreme Court’s precedent in United States v. Nixon, compelling President Nixon to turn over evidence relevant to a criminal investigation (including the tapes), Clinton threw up phony roadblock after phony roadblock claiming presidential authority to obstruct the Starr investigation, all of which ultimately failed. He claimed attorney-client privilege (even where he improperly used government lawyers to work on his private legal matters); executive privilege (again, to prevent prosecutors from gaining access to information surrounding his private activities); and Secret Service protective function privilege (a concoction of the Reno Justice Department to prevent the taking of testimony from Secret Service personnel who witnessed Clinton’s wrongdoing). In each case, courts at every level shot down these unprecedented claims.

And, as we know by now, the ECHELON project has been intercepting electronic communications of every sort, gathering them into a giant database and analyzing the communications, for years, including during the Clinton administration. Clinton bypassed FISA by extending warrantless searches to include physical searches. And he used a spy satellite to gather intelligence on a white separatist compound in Oklahoma after the Oklahoma City bombing. We didn’t hear word-one about threats to civil liberties. So much for the intellectual seriousness of the sanctimonious Left.

Since December 16, when the New York Times published the first NSA story, the big media have largely ignored the actions of past presidents in extending warrantless searches via executive orders; a Supreme Court and four circuit court decisions recognizing the president’s inherent constitutional authority as commander-in-chief to order the intercepts; a FISA Court of Review decision acknowledging presidential authority; and the Constitution itself in trying to portray the Bush administration’s NSA program as unlawful. Now, it ignores the Clinton administration’s abuse of power in an attempt to paint Bush as Nixon, i.e., to raise the specter of Watergate and the imperial presidency. And you thought things would get better when Dan Rather left?

John Yoo deserves a medal. He’s a patriot.
Posted at 12:24 PM

December 27
DARE I SAY, MAYBE THE PROBLEM IS THE FOREIGN INTELLIGENCE SURVEILLANCE COURT? [Mark R. Levin]
Its constitutional authority for making war-related decisions is certainly more precarious than the president’s explicit authority as commander-in-chief. Why would we assume that these federal judges are anymore respectful of the limits of their power when serving as FISA judges ruling on foreign intercepts than they are when ruling on, say, most any other issues? If Congress is going to hold hearings on FISA and NSA intercepts, let’s hope their inquiry includes a review of the conduct of the judges as well — who also operate in secret.
Posted at 12:45 PM

December 28
WAR BY LAWYERS [Mark R. Levin]
There has never been a time when lawyers and courts have had so much influence over the conduct of war. This is where the Supreme Court’s decisions in Hamdi and Rasul have taken us, as many of us predicted. And now, when the president exercises his legitimate and traditional constitutional authority during war-time, including ordering the interception of enemy communications, he is said to be acting as an “imperial” president. And the lawyers representing the enemy are lining up for their court dates.
Posted at 08:09 AM

AND IN SUM… [Mark R. Levin]
This is a very good piece and reiterates what we’ve been saying here since this phony scandal first broke on December 16 in the New York Times.

The only remaining issue, as far as I’m concerned, is when will our government investigate those who committed felonies in leaking this classified NSA program?
Posted at 09:45 AM