...Then Newsweek's Jonathan Alter is one happy feller. A couple of days ago, we dissected Mr. Alter's latest column, where he described the recently-disclosed NSA surveillance program as "illegal." Alter also opined that President Bush asked the NYT to stop publication of the article so he wouldn't be exposed as a lawbreaker.
If you wonder how a member of the MSM can arrive at such conclusions, Hugh Hewitt has some answers. Alter appeared as a guest on Hewitt's radio program Tuesday night, and Hugh questioned him at length on the NSA program. Some of the exchanges reveal that Mr. Alter has an appaling lack of knowledge on critical legal issues and precedents affecting the NSA program. Here are a few revealing exchanges, courtesy of Radioblogger:
Hugh Hewitt: "...Yesterday, you wrote, "we're seeing clearly now that Bush thought 9/11 gave him license to act like a dictator. Do you think George Bush is acting like a dictator?"
Jonathan Alter: "Well, I think that in his own mind, if you had read the rest of that sentence, I think he's acting like Abraham Lincoln did during the Civil War, although unlike President Bush, Lincoln actually went and got Congressional authorization for some of the extra-Constitutional things that he did during that war. But I think in his own mind, he's not a dictator. But I think what he did in this particular...and I think to call him flat-out a dictator would be kind of a ridiculous exaggeration. But I think what he did in this case was dictatorial, extra-Constitutional, and I think many conservatives, Senator John Sununu being only one of many, many conservatives agree with me. And they see this as not really just the old kind of partisan mud-slinging, but a real question of separation of powers, and how far presidential power extends."
HH: "So do you think he is acting as a dictator acts?"
JA: (Cites an example of FDR of electing not to move in a dictatorial fashion, then compares that to GWB) "In Bush's case, the reason that this is dictatorial, Hugh, is that when he says that his authority for doing this comes from two places, in his press conference...one, the Constitution, and two, the authorization, the Congressional authorization after September 11th, the Congressional resolution that said he was allowed to use all necessary force, quote unquote. But that was for military intervention. That was not a blank check to do absolutely anything that he wanted in the War On Terror."
HH: "Now Jonathan Alter, let me get a couple of questions in. Have you read In re sealed case, and the Keith case, also known as United States V. United States district court, Eastern district of Michigan?"
JA: " Are you talking about the Hamdi case?"
HH: "No. I'm talking about the two cases interpreting the national security acception to the warrant requirement of the Fourth Amendment."
JA: "First of all, no, I haven't read those cases. But I'm actually not making a Fourth Amendment argument, because if you look at, for instance, border security and that kind of thing, there's a lot of caselaw. You know this much better than I do, Hugh, you know, that interprets the Fourth Amendment in different ways. I'm not saying that he's being unconstitutional in..."
HH: "You're saying extra-Constitutional. But in fact, these cases are very emphatic that what he has done is not extra-Constitutional."
JA: "No, no. We're talking about two different things. This is a critical, critical point. I am not saying that he violated the Fourth Amendment. That is a very complex question to look at. What I'm saying is that he, by claiming that he's in violation of the 1978 foreign intelligence surveillance act, and that that act sets up the FISA system, and it's a good system. It works. His doubts about the timeliness and everything are a crock, because we know that you can do it retroactively."
HH: "But Jonathan, the 2002 case, In re sealed case, is the FISA appeals court case directly on point, which refutes your assertion, and you haven't read it."
JA: "What does it say? I haven't read it. What does it say?"
HH: "It says that the context of the president's authority to avoid FISA has certain Constitutional roots, and is no way dependent upon FISA's language."
JA: "So you're saying that this has been litigated?"
HH: "I'm not saying that. I'm saying that the assertion that you're making is directly reputed by In re sealed case."
JA: "Well, let's look closely at the case, which you've read. Tell me what the case was, and what the court found."
HH: "I will be happy to read that to you at length, In fact, I'll send you the link."
JA: "No, no. Before you just assert that somehow a court has validated him violating the law, which he did in this 1978 law, tell me how."
HH: "He did not violate the law, because what the court says, the appellate court, the panel says, is that there is no reason to believe that FISA controls the president's inherent authority, and it could not control the president's inherent authority. And like the Supreme Court before it in Keith, it refuses to rule on that issue."
JA: "Inherent authority to do what?"
HH: "To conduct surveillance on foreign powers in contact with American citizens."
Pretty amazing stuff...a highly-influential columnist for a major news magazine writes a column that accuses the President of violating the law, then freely admits that he never bothered to review critical legal decisions that provide justification for the NSA program. Never let the facts get in the way of a good opinion piece, I suppose.
But wait, there's more, as they say on those late-night TV commercials. A little later in the interview, Alter expresses the view that the "expose" of Valerie Plame is a more serious matter than disclosure of the NSA program. Back to the transcript:
HH: "Jonathan Alter, in the November 7th issue of Newsweek, you wrote about the seriousness of blowing the cover of CIA operative Valerie Plame. Do you believe that that was more serious that what has happened with the NSA program leak?"
JA: " Oh, absolutely. Yeah, because that cost...she was what's called non-official cover. The CIA invested millions of dollars in her, and whatever you think of Joe Wilson and Valerie Plame now, I don't think they're covering themselves in glory. It was damaging to the CIA to have that revealed. In this case, this isn't going to prevent us from catching terrorists, you know, this revelation. Hugh, you've got to understand. I'm a hard-liner on terrorism. I don't have any problem with eavesdropping. I want it to be done in a legal way. There's a legal standard that's established for it. You said that there's a court decision here that says...that gives the president standing under the 1978 statute to do this...he didn't claim that."
HH: "No, I didn't. I said that the issue has been specifically reserved to the Supreme Court, and has not been decided, and under this opinion, which is lengthy and complicated, and I'll send it to you. I just want to put that aside, though. I want to get your standard in place, because you think the leak of Valerie Plame is much more serious than the leak of this NSA program."
JA: No, no. I won't say much more serious. I don't want to put a comparative value on it. But there, the damage, if you were looking at damages, you know, to say the way you would in a legal case, I mean we know that all the CIA cut-outs, proprietary fake companies that they created for Valerie Plame, and all the people she dealt with, all that is money down the toilet. All that was wasted. In this case, it's hard to assess the collateral damage. There's nobody...all the commentary in the last few days, nobody has said what damage this story did. The president..."
HH: "But Plame's damage is just money? Is that what you're saying? It's just lost money?"
JA: "No, no. The president asserted that it helps our enemies. "
HH: "No, the Plame damage. I'm talking about Plame."
JA: "No, it was a bad precedent to expose...I mean, I talked to several people who had been in the CIA about this, who are non-political people. They were all upset about this. You know, it's just a bad deal to go around talking about who might, or might not be in the CIA."
By any standard, Mr. Alter's leaps of convuluted logic and mental gymnastics are pretty impressive. During my days in J-school, I was taught to gather all relevant facts before sitting down at the keyboard. But in Alter's alternate universe, inconvenient facts and legal precedents should be ignored, since they tend to undercut his central thesis (Bush broke the law).
And, continuing with that line of thinking, the Plame affair is the worst national security breach in the nation's history, bar none. Why, think about all the money the CIA spent on her "cover." Those wasted dollars are far more important that a blown surveillance program which will yield less information on terrorist groups that want to attack our country. To make that assertion, you must ignore the fact that Ms. Plame wasn't undercover at the time her "identity" became public--and there's no proof anyone violated the federal law which makes it a crime to reveal the identity of an intelligence officer. But, judging from the interview, Mr. Alter is more than willing to cherry-pick the facts and the law to make his case.
Kudos to Hugh for an outstanding interview.