McIlheran Watch: What a jerk--of the knee, that is

A quick look at the calendar will tell you that it's Wednesday, which means the Milwaukee Journal Sentinel is befouled--even more than usual--by the knee-jerk Bush-booster Pat McIlheran. Today, he's off about Wisconsin Senator Russ Feingold's complaints about Bush Breaking the Law, and, even if he was reasonable last week, today Pat is back to his usual pattern of distortions, lies, and hypocrisy.

The title of today's column--which, admittedly, may not be McIlheran's doing--is "A standing-tall president and a senator's stand-up shtick," clearly meant to draw the line between Bush's wanton law-breaking and Feingold's ability to crystalize the legitimate concerns of a nation into a few good zingers. Russ has been just about everywhere on this issue, continuing to be the leading voice for civil liberties in the Senate. That's where Pat starts his criticism:

Feingold's been popping up on television with easily digested quips--how original of him to realize that the deplored monarch and the current president have the same first name!--as he tries to confect national outrage about news that the president has asked the nation's radio eavesdropping agency to monitor cell phones.

This is a return to Feingold's first strength. The man won his seat with witty television ads. Only later did he follow the senator-from-Wisconsin tradition of becoming a one-issue drone. Commies and earth-hugging already had been done, so he made a point of being a "maverick," which is advocating positions just because they are novel. As a result, we have campaign finance laws somehow more convoluted and incumbent-protecting than before.

But that glow is fading. Feingold must find new feedstock for his outspokenness. Derailing the USA Patriot Act over the sanctity of library logs satisfied his base, those people who pet themselves with the label "progressive." The wet blanket that The New York Times threw over the triumph of the Iraqi election, this revelation the feds were spying on possible terrorists, provides a wider audience.

So Feingold rants about abuse of power. Democrats fall in line, since nothing unites them so much as dislike of the president. Some Republicans do, too, since congressmen distrust presidential prerogative. Finally, some serious thinkers have valid doubts about the wisdom of federal eavesdropping.

There's typically a fish-in-a-barrel feeling that comes from critiquing McIlheran's prose, and today's colum--even just this passage--is no exception:

• National outrage exists over the revelations of domestic spying in violation of the law, and it would exist without Russ Feingold. The Idaho Statesman, for example--not a paper you might associate with the loony left or one that likely takes its cues from Feingold-- called for a "serious" investigation into the legality of the matter. The Idaho frickin' Statesman!
  
• I'll save the campaign-finance fight for another day, but Pat mocks Russ for being a "maverick," insults generations of Wisconsin senators as "one-issue drones." With the death of William Proxmire still fresh on our minds, it's a little insulting to dismiss the kind of principled consistency Proxmire pioneered and Fiengold maintains. (Joe McCarthy's single-mindedness was a result of drinking-induced paranoia, but that, as they say, is another show.) If Feingold's positions were truly "novel," the Congress would not have passed campaign-finance and Bush would not have signed it. A large, bipartisan group of senators would not have acted in concert last week to stop the renewal of the P.A.T.R.I.O.T. Act. Sounds to me like Russ is a leader, not a novelty.
  
• The New York Times did not publish the story of warrantless domestic wiretaps to throw a "wet blanket" over anything, let alone to boost Russ, as he implies. "The publication was not timed to the Iraqi election, the Patriot Act debate, Jim's forthcoming book or any other event," [Times publisher Bill Keller said in a statement. "We published the story when we did because after much hard work it was fully reported, checked and ready, and because, after listening respectfully to the administration's objections, we were convinced there was no good reason not to publish it."
  
• Where was McIlheran when nothing united the right so much as dislike of Clinton? Maybe he could have stopped that impeachment, too . . . And it's very clever how Pat dismisses the concerns of such petty Congress critters as Arlen Specter and Lindsay Graham as a "distrust of presidential prerogative." Maybe McIlheran needs to re-read his Constitution (Congress gets Article ONE on purpose, yo) and the Federalist Papers, to get a flavor of what real "distrust of presidential prerogative" sounds like.

McIlheran then launches into a spirited, if misguided, defense of Bush's indefensible lawbreaking:

Considering those doubts in a grown-up way begins with clarity about what was done. [. . .] Had NSA eavesdropped on suspects who were both outside the U.S., there'd be no issue. The hallmark attack of the present war on jihadists took place here. Our troops in Afghanistan and Iraq have found cell phones and computers and slips of paper with contact numbers in the U.S. So lawmakers now denouncing this "domestic spying" as a power grab need to explain why it's acceptable to spy on al-Qaida overseas but not when one of the al-Qaida suspects is here.

Of course the government was wiretapping suspects. This revelation was surely a reassurance to the majority of Americans who, sensibly, can distinguish between a government that spies for political advantage and one that spies on cross-border belligerent conspiracies. The former is the baseless insinuation by the president's foes; the latter is the president's obligation under the Constitution--something asserted with equal vigor by President Clinton--and under Congress' explicit instruction in the wake of 9-11.

Nor can Feingold's threat of a special prosecutor be taken as a sign of adulthood. The claim that President Bush broke the law ignores entirely Bush's legal justification for ignoring the Carter-era law that his critics are talking about.

So now he's calling Feingold juvenile? That's mighty grown-up behavior for a big-boy columnist, isn't it? He also takes the grown-up tactic of the false analogy: Spying overseas is not like spying at home--which isn't really supposed to happen (though someone needs to tell the FBI and the DoD.) And no one, particularly not Russ Feingold, has criticized the right of the administration to gather intelligence abroad--as long as it is not gathered--as that other "maverick," John McCain, has requested--through torture.

Instead, Americans and their Congress critters are concerned about spying on "U.S. persons," as they're called, including citizens of these United States. The rights of "U.S. persons" are protected by this thing called the Constitution, and under statutes passed by the U.S. Congress, including the now-infamous FISA. McIlheran makes two points in the quoted section (and a third that I'll quote in a moment), that Clinton did it (for hating Clinton so much, the right seems to use him as justification an awful lot) and that Congress authorized the questionable program. Both are, whaddyacallem? Lies.

Clinton's executive order "requires the Attorney General to certify [that] the search will not involve 'the premises, information, material, or property of a United States person.' ” That's kind of the opposite of the situation we're talking about now. And Congress did not explicitly allow the president to circumvent the FISA courts in its 2001 use of force authorization. Attorney General Alberto Gonzales cited that resolution in defending the program that he no doubt green-lighted as White House Council. But when pressed, Gonzales admitted "that the administration discussed introducing legislation explicitly permitting such domestic spying but decided against it because it 'would be difficult, if not impossible' to pass." In other words, Congress, thinking it was voting to authorize war on Afghanistan and al Qaeda, would have rejected explicit language giving the president the authority to do what he's doing now.

McIlheran then cites a widespread defense of the program: "Bush makes the case, as have previous presidents, that the Foreign Intelligence Surveillance Act 'could not encroach on the president's constitutional power,' as it was put by federal judges ruling on the issue in 2002." Surprisingly, I'm turning to a conservative legal scholar here, Orin Kerr:

So the argument, as I understand it, is that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power, a judgment made, I suppose, by the President himself.

I have been unable to find any caselaw in support of this argument. Further, the argument has no support from the cases cited in the government's brief. In all three of those cases--Butenko, Truong, and Keith--the Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch.

Kerr even quotes one of the Supreme Court cases the FISA court--the court that produced the quote in the blast-fax talking points McIlheran has cribbed from. The Justices wrote (my bold), "the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance." In other words, there may eventually be a question of whether FISA itself is unconstitutional, but the administration seems not to have advanced that argument.

Remember, the FISA statutes are very broad: There is nothing that prevents immediate and expeditious surveillance, as long as the administration goes to the court within 72 hours for a retroactive warrant. And given that the FISA court's warrant approval rate is literally like 99.99%, it seems like there shouldn't be any problems there. That the administration just decides it doesn't feel like it needs to follow that law (though Bush dissembled about it in 2004) is just scary. Makes you wonder why they bother to fight Congress on any law, if they think they can just ignore them anyway. (Also see Ben's “They feel they’ve participated in a Potemkin court.”)

McIlheran saves my favorite part for last:

Had Congress, whose leaders knew about this surveillance all along, been serious about the law, they would have asked why our eavesdroppers found it impossibly cumbersome to get the warrants critics say are so easily granted. Bush says the law, which predates cell phones, imposes unacceptable delays, and the 9-11 commission cited it as an ongoing roadblock.

This administration does nothing quite so well as blame Congress. It never fails to amaze me how a Republican president can blame so much on a Republican Congress. For example, a month ago, when the administration was taking flak over the abuse and misuse of intelligence in the run-up to Iraq, they said "Congress saw the same intelligence we did." That, of course, was a lie. The whole "Congress knew all along" about the wiretaps is just as much of a lie. See, for example, statements from Sen. Rockefeller or leader Pelosi. I like Harry Reid's statement best:

First, it is quite likely that 96 Senators of 100 Senators, including 13 of 15 on the Senate Intelligence Committee first learned about this program in the New York Times, not from any Administration briefing.

I personally received a single very short briefing on this program earlier this year prior to its public disclosure. That briefing occurred more than three years after the President said this program began.

The Administration briefers did not seek my advice or consent about the program, and based on what I have heard publicly since, key details about the program apparently were not provided to me.

Under current Administration briefing guidelines, members of Congress are informed after decisions are made, have virtually no ability to either approve or reject a program, and are prohibited from discussing these types of programs with nearly all of their fellow members and all of their staff.

Moreso, here's the big flaw in McIlheran's argument: He is contradicting himself. Either FISA can't stop the administration from doing this wiretapping, in which case Congress can't do a thing, or FISA prohibits the administration from doing it, and Congress needs to remove the "ongoing roadblock." Make up your mind, Pat, and once you've done that--and gotten your facts straight--try again.