Ezra Klein: Let's Talk About Watergate

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January 07, 2006

Let's Talk About Watergate

The mainstream Democratic position -- and my position -- on the NSA scandal is that wiretapping people reasonably suspected of terrorism is a good thing, but that (1) There needs to be oversight so that the President isn't misusing his power and (2) Bush broke the law in not going through the super-easy FISA court that can even give a retroactive warrant. So if one of our readers happens to be charged with brewing up the official list of Democratic talking points, let me ask you to make some explicit or implicit mention of Watergate. I'm guessing that "We want Bush to wiretap terrorists too -- we just want somebody to make sure he isn't bugging our headquarters" will seem reasonable to ordinary folks. After all, a recent and reviled Republican president did try something like that. It allows us to segue into how easy we made the oversight procedures and how Bush didn't follow them anyway, and it would do wonders in clearing up an issue where confusion (as exemplified in the awful poll question from a week ago) is rampant. It also sets us up pretty nicely in case he did send the spies to snoop on some Democrats.

January 7, 2006 in Bush Administration | Permalink

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"We want Bush to wiretap terrorists too -- we just want somebody to make sure he isn't bugging our headquarters"

That's terrible phrasing Neil and its exactly the sort of statement we see all the time from Democrats in these debates. It follows the "Yes, but ..." formula that allow the Republicans to claim Democrats stand for nothing and the media to ignore the central point entirely. (If you want to see examples just type "Nobody likes Saddam" into google and see all the results you get.)

The phrase starts with an implicit concession ("Of course we agree with Buth that we should wiretap terrorists"). Frames the debate on Bush's terms ("I need to do this to protect you") and ignores the fundamental argument - rule of law is a strength of our democracy, not a weakness.

Bush has used fear as a weapon against the our freedoms. He's asserted for himself the right to strip Americans of their citizenship, the right to ignore treaties, the right to wage war anywhere without notice, the right to torture, and now the right to openly defy the law of the land. He's used these laws to spy on Quaker meetings and peace rallies, placed Senators and children on terror watch lists, tracked down wayward Democratic legislators when they fled to Oklahoma from Texas, and for all that, Al-Qaida still plots, bin-Laden is free, the anthrax attacks are nearly forgotten. Feel safer yet?

Opponents of this power grab need to attack fear with courage. Only when people are shown they can get out from under their beds and face threats in the daylight will the erosion of our civil rights end. If you need talking points, I suggest you start by reading Thomas Paine and Patrick Henry,

Posted by: mikef | Jan 7, 2006 1:07:08 PM

Talking points:

- The administration is being dishonest. The FISA laws only apply to intelligence-gathering on American citizens. There are provisions in the law which allow eavesdropping to being immediately and a warrant filed within 72 hours.

- Eavesdropping on Americans without a warrant means that any information learned cannot be used against them in court. This was seriously handicap any court cases we would bring in the future.

- FISA has been amended before, by President Clinton, when in proved inadequate.

- Bush has had 4 years to ask for changes to the law if he thought it was inadequate.

Maybe these are a little too long, perhaps we can make them a little more punchy.

Posted by: Unstable Isotope | Jan 7, 2006 1:08:06 PM

Good point mikef. If we decided to give up our freedoms, it means the terrorists have already won.

Posted by: Unstable Isotope | Jan 7, 2006 1:09:47 PM

Mike, I'm generally against the "yes, but" on issues where "no" is the right answer. But on the substantive merits, "yes, but" is the right answer. This isn't posturing of any kind. The government needs some authority to wiretap terrorists, and there is no sense in denying them that.

"Rule of law" is the right point, but merely putting it that way lends to confusion. We've got to make clear that we don't think that "Rule of Law" rules out all wiretapping, even with warrants and proper oversight. Lots of people seem to think that this silly and genuinely dangerous position is the Democratic position, and my formulation corrects that error.

Posted by: Neil the Ethical Werewolf | Jan 7, 2006 2:02:30 PM

What "We want Bush to wiretap terrorists too -- we just want somebody to make sure he isn't bugging our headquarters" doesn't address is the oft-asserted (and frustratingly popular) belief that eavesdropping doesn't matter "if you don't have anything to hide." I wonder if Dems saying "we just want somebody to make sure he isn't bugging our headquarters" actually plays into the unspoken notion underlying the "nothing to hide" reasoning - that people who are concerned about it do have something to hide.

Dunno, just a thought. Maybe even a slight adjustment to "We want Bush to wiretap terrorists too -- we just want somebody to make sure he's only wiretapping terrorists" could avoid that inevitable misdirection a bit.

Posted by: Shakespeare's Sister | Jan 7, 2006 2:28:44 PM

I see your point, Shakes. As a sidenote, my utilitarianism gives some sympathy with the frustratingly popular view you mention. To me, wiretapping innocent people without their knowledge and discovering their embarrassing secrets, but never interfering with their lives in any way is not in itself a bad thing. There are big practical problems though about the government misusing this information, and that's where I get concerned. Probably the majority of Americans get worried earlier than I do in this series of events, though.

One benefit of bringing up Watergate is that it makes it clear how bad misuses of government power can be. I'm guessing that most Americans would think it was wrong if Bush had the NSA bug Kerry's cell phone and gave this info to Karl Rove for partisan purposes.

Posted by: Neil the Ethical Werewolf | Jan 7, 2006 2:51:37 PM

Neil, in theory, I agree that wiretapping innocent people is not in itself a bad thing, but in reality, said wiretapping doesn't happen in a void. It's not just that there are practical problems about the government actually misusing the information, but that, from the moment it starts, there's always the potential for (or, when I'm feeling more cynical, the likelihood of) its being misused. In other words, the only place it's only not a problem is in some conceptual realm the existence of which is predicated on excluding a very real possibility of abuse.

Of course, I'm jaded and bitchy, so there's that to consider, too. ;-)

Posted by: Shakespeare's Sister | Jan 7, 2006 3:51:35 PM

Neil, I don't think we substantially disagree, only on the way to present the argument. "Rule of Law is what protects us against our enemies" is the point Democrats need to hammer home. When someone responds with the "shouldn't we be able to monitor terrorists" comment they can demonstrate that the law already allows that.

I think the Dems too often argue about the details before defining a core position on these issues. Define your ground when you start the debate and every other response needs to hammer that point home. It may take people a while to understand, but its worth the trouble in the long run.

Posted by: mikef | Jan 7, 2006 5:21:19 PM

Just one question:
Is it too much to ask the the president of the United States follows the law of the United States?

Posted by: Unstable Isotope | Jan 7, 2006 5:39:00 PM

-It is not illegal if the call is intercepted outside the country.

-It is not illegal as long as the warantless electronic surveillance is for intelligence purposes.

-Congress was consulted the entire time. If it was so illegal, why didn't Pelosi or Rockerfeller speak up before?

-Where is your outrage at Carter who was the first to allow warrantless wire tapping?

-Where is your outrage at Clinton who authorized warantless searches of US citizens in the United States?

"WASH POST, July 15, 1994: Extend not only to searches of the homes of U.S. citizens but also -- in the delicate words of a Justice Department official -- to "places where you wouldn't find or would be unlikely to find information involving a U.S. citizen... would allow the government to use classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes, without a court order."

Deputy Attorney General Jamie S. Gorelick, the Clinton administration believes the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes."

Secret searches of Aldrich Ames's office and home in June and October 1993, both without a federal warrant.

-The difference between the NSA wire taps and Watergate:

Bush is trying to protect the country. That is why the Dems can't get any traction with this issue. Most people expected this kind of surveilance(that if you are talking to a suspected terrorist, you will be watched and listened to) after 9/11.

I wouldn't be surprised if the gov't has software that monitors internet traffic, if flag words are detected.

Posted by: Captain Toke | Jan 7, 2006 10:47:46 PM

A couple of observations:
1) The thread here is mostly on the "yes, but..." problem liberals perceive. The real problem they have is that their message is essentially the same as the presidents. "Yes, he's doing the right thing, but...." is a tough thing to frame differently. Kerryesque nuancing is how it all comes off.
2) Toke is right. To the chargrin of the hard left, this issue has gotten very little traction. Average Joe kinda likes the wiretapping of conversations of suspected terrorists.

Posted by: Fred Jones | Jan 8, 2006 3:03:05 AM

"Average Joe kinda likes the wiretapping of conversations of suspected terrorists."

There's the classic example of what I'm talking about. As long as the opposition gives them the opening, partisan Republicans will respond that they're protecting you against terrorists. They've learned how to frame a debate and which issues to hammer on. Democrats need to learn how to counter that.

We now have 2 options - the "hide under your bed and trust me" ideology of George Bush. Or the "stand and fight" ideology of those who believe in preserving life and liberty.

Posted by: mikef | Jan 8, 2006 10:46:42 AM

Liberal Speak -

"They've learned how to frame a debate"

translation

"The left is on the wrong side of the issue, again, we have to figure out a way to sell it to the American people"

Didn't the left use the "framing of the debate" argument to rationalize the loss in 2000, 2002, 2004 and when they were overwelmingly shot down on gay marriage?

Or was that the "most Americans are bigots" argument?

I know this "framing the debate" argument is a good way to rationalize losses, but even a raging drunk usually figures out that it is he who has the problem, not everyone else.

What is that AA definition of insanity again?

Posted by: Captain Toke | Jan 8, 2006 12:59:33 PM

It's not equivocating to say:

#1 - Surveillance of suspects, absolutely!
#2 - If you are surveilling citizens, get a warrant.

Posted by: Adina Levin | Jan 8, 2006 1:04:18 PM

"#2 - If you are surveilling citizens, get a warrant."

If surveillance is for foreign intell, and not for evidence gathering, they don't have to get a warrant, it is legal, so why would they?

Do you want them to tell the suspected terrorist that they are being listened to as well?

Again, I say I say, where is your outrage at Clinton? Clinton's admin argued and authorised warrantless searches!

"Deputy Attorney General Jamie S. Gorelick, the Clinton administration believes the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes."

Liberals are children throwing a tantrum.

Posted by: Captain Toke | Jan 8, 2006 1:22:47 PM

Damn, Toke just spews the lies, don't he?

Re surveillance of citizens, sorry, but the source he's citing doesn't support that. The relevant FISA section allows warrantless surveillance for up to a year, but *not* of US citizens. It only allows warrantless surveillance of foreign powers, and expressly prohibits warrantless surveillance of "US persons", which is a much broader category that just citizens, though it includes citizens.

And again, the tu quoque "Clinton did it" bullshit ignores the relevant context. Here's Gorelick's actual testimony. Gorelick said that *at the time* Congress hadn't legislated on the matter. Congress subsequently did, and the Clinton Administration complied.

I would humbly suggest that Toke try to keep up with the debunking of his RNC talking points. Otherwise, he just lookes like a pathetic principle-free stooge parroting whatever higher-paid Republican media apparatchiks have decided is the story to be pushed today.

Posted by: paperwight | Jan 8, 2006 4:20:30 PM

Damn, CT has been smoking that Romulan stuff again.........

Posted by: The Dark Avenger | Jan 8, 2006 5:46:09 PM

"Gorelick said that *at the time* Congress hadn't legislated on the matter. Congress subsequently did, and the Clinton Administration complied."

So Clinton broke the law, but when the law changed, he was complying with the law, but that was after the law changed to allow him to do what he was doing, when he started doing it, it was still illegal. Sounds like Clinton.

"The relevant FISA section allows warrantless surveillance for up to a year, but *not* of US citizens.

Where does it say that?

This is from Clinton's exec order:

Section 1. Pursuant to section 302(a)(1) of the Act, the
Attorney General is authorized to approve physical searches, without a
court order, to acquire foreign intelligence information for periods of
up to one year, if the Attorney General makes the certifications
required by that section.

I don't see anything about foreigners only. Are you trying to tell me this only applies to foreigners inside the US?

What about Alderich Ames?

I can out think you while I am blistered stoned, what does that say about you and your position?

Smoke a Fatty!

Posted by: Captain Toke | Jan 8, 2006 8:08:41 PM

-It is not illegal if the call is intercepted outside the country.

Peachy. If that's true, and if that's all they're doing, why did Bush need to make an executive order at all?

-It is not illegal as long as the warantless electronic surveillance is for intelligence purposes.

And we're expected to take his word that nothing more is going on. Call me crazy, but I see a problem with that.

-Congress was consulted the entire time. If it was so illegal, why didn't Pelosi or Rockerfeller speak up before?

First of all, telling them that it was happening but giving them no details about who was being spied on or how or why, and then making it classified so they could be prosecuted for going public, is not oversight any more than a completely plastered girl flirting with you is consent. And second of all, apparently you didn't see the thing Ezra posted like a month ago about this. Either that or you deliberately ignored it, of course. He pointed out that even if said Congressmen should have spoken out, that doesn't vindicate Bush, it just implicates them too.

-Where is your outrage at Carter who was the first to allow warrantless wire tapping?

Cite, please. But even if Carter decided to and successfully did allow warrantless wiretaps of American citizens - forgive me if I don't take your word for it - that doesn't make it legal, moral or constitutional.

-Where is your outrage at Clinton who authorized warantless searches of US citizens in the United States?

Cite, please. In doing so, attempt to reconcile your interpretation of events with this. Now, it's a pretty long and dense article, so it'll probably tax your attention span, if a link to Media Matters doesn't cause an allergic reaction to the first place... but to spare you, I'll summarize what it says about your quote: bullshit.

-The difference between the NSA wire taps and Watergate:

Bush is trying to protect the country. That is why the Dems can't get any traction with this issue.

How do you know what he's doing? You don't. I mean, seriously, all snark and prejudice and insults aside, do you really, honestly not have even the slightest problem with the President saying "trust me," and trying to put an end to the whole matter? Because that's exactly what Bush is doing.

I wouldn't be surprised if the gov't has software that monitors internet traffic, if flag words are detected.

Thrilling. What does it have to do with anything?

Posted by: Cyrus | Jan 8, 2006 11:21:45 PM

"in theory, I agree that wiretapping innocent people is not in itself a bad thing"

That doesn't make a lick of sense.

"Innocent people?" As opposed to "guily people?"

Do you mean you think it's OK "in theory" to target for wiretapping "US citizens not suspected of any crime?" [And please note, I'm not suggesting that's what the present case is about -- I'm just trying to understand SS's incoherent, illiberal post. Although, you may feel free to count me among those who continue to believe that, at a minimum, US citizens should be free from "unreasonable searches," and I'd certainly say wiretapping "innocent people" is unreasonable absent a warrant to do so, which warrant, I continue to believe should not be issued except "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."]

Posted by: Too Kind By Half | Jan 9, 2006 10:33:20 AM

I'm forced to conclude that Toke is just a flat out liar at this point. In one case, I point him to the code section on which the executive order relies, and he refuses to read it.

I point out that the law changed after the testimony that Toke is relying on, and he says that actions before the law changed (including the Aldrich Ames search) broke the law after it changed?

Further, FISA *always* prohibited electronic surveillance of citizens unless one complies with FISA. And that's what we're talking about here. And "tu quoque" is not an answer to "that's illegal". Toke, like most Republican Talking Point Trolls, has gone completely orthogonal to the rule of law. All he cares about is power, and whatever power someone can claim, according to Toke, should be the whole of the law.

Toke is, sadly, just a liar, spewing whatever talking points his handler tells him to.

Posted by: paperwight | Jan 9, 2006 11:09:31 AM

Don't worry paperwight, WEEKS ago, Toke's arguement that Carter and Clinton did the same thing was throughly debunked by FactCheck.org, with links and everything. He refused to acknowledge it then, and then brings it up a second time, so don't bother even granting him a response.

Posted by: Adrock | Jan 9, 2006 1:28:26 PM

Debunk executive orders and the warrantless search of Aldrich Ames.

Carter:

http://www.fas.org/irp/offdocs/eo12139.htm

Clinton:

http://www.fas.org/irp/offdocs/eo/eo-12949.htm

"CLINTON ADMINISTRATION SECRET SEARCH ON AMERICANS -- WITHOUT COURT ORDER

CARTER EXECUTIVE ORDER: 'ELECTRONIC SURVEILLANCE' WITHOUT COURT ORDER

Bill Clinton Signed Executive Order that allowed Attorney General to do searches without court approval

Clinton, February 9, 1995: "The Attorney General is authorized to approve physical searches, without a court order"

Jimmy Carter Signed Executive Order on May 23, 1979: "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order."

WASH POST, July 15, 1994: Extend not only to searches of the homes of U.S. citizens but also -- in the delicate words of a Justice Department official -- to "places where you wouldn't find or would be unlikely to find information involving a U.S. citizen... would allow the government to use classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes, without a court order."

Deputy Attorney General Jamie S. Gorelick, the Clinton administration believes the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes."

Secret searches of Aldrich Ames's office and home in June and October 1993, both without a federal warrant."

I am ready to see some thorough debunking.

Correcting liberals with one hand wrapped around a big fat doobie, just to make it fair.

Posted by: Captain Toke | Jan 9, 2006 2:38:45 PM

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