The Setup

In considering what follows, note that last week one item opened with this idea - often one writes just to get one's thoughts organized, not for an audience. The idea is not to plead some case or promulgate some particular point of view, but only to look at events and see if there's a way to make some sense of them. It's just, really, trying to figure out what's going on. If readers want to tag along for the ride, that's fine. But there are no promises.

And few readers do tag along. The weekly site, Just Above Sunset, averages about three-hundred twenty-five unique logons a day, about a third of those from western Europe and well beyond, and the daily web log gets twenty or so hits a day. You can click on the number at the bottom of the gray block on the right side of this page and see information on the location of the readers and which page they access and all that sort of thing.

Of course on both sites there are those who only access the pages of photographs, in what you might call the "reverse Playboy" effect (the opposite of that "I only read it for the articles" line that "serious" guys once used). In any event, since May of 2003 there's been a lot of this "getting one's thoughts straight" - more than 1,700 pages in the weekly's archives, and now over a thousand web log entries, although they overlap quite a bit.

Of course this is small stuff - and not journalism. It is an attempt to put what journalists report, and what one finds doing a bit of digging in primary sources, into context. The New York Times ran a long, unfocused article on the difference between the two on Monday, January 2nd - Katharine Q. Seelye's Answering Back to the News Media, Using the Internet. There the idea is reporters (journalists) are the good guys - they do all the work, all the interviews and setting out the facts in a reasonable way - and those who write on the net are the bad guys - parasites second-guessing the folks who bring us the world and explain it to us. But maybe that wasn't exactly the point. It's kind of hard to tell. But the article's subhead - "Never pick a fight with someone who buys ink" - seems to indicate the idea that those who write political and cultural commentary on the net are somehow unfairly attacking the hard-working real journalists. Yeah, we buy that electronic ink by the barrel and we use it. Heck, it's practically free these days.

Of course, sometimes there are internet attacks, as with the ganging up from the left on the Times's Judy Miller, and from the right all the gloating about how the right-side web logs brought down the mighty Dan Rather. But what happened with these two "journalists" probably wasn't caused by swarms of web logs only policy wonks and partisans read. That's wishful thinking - or delusional thinking, actually. Things would have played out the way they did, sooner or later, no matter what was on the blogs.

Electronic magazines and web logs, of the political and social sort, have a different purpose, as Jane of the blog Firedoglake explains here –

... bloggers serve the function of analysts. Or re-analyzers, more aptly, who attempt to contextualize as they sort through available data and look for patterns, inconsistencies and greater truths.

... From our standpoint we're trying to come up with new ideas and theories as we try to sort through the available information and expose the systemic bias from which it comes. We're not afraid to be wrong in our speculations, nor are we afraid to interact with people who like to think along side us.

That'll do.

The problem, to which web magazines and blogs off a solution, is that world is awash in information - the Times says this and the Post says that, about the same thing, and AFP sees it slightly differently than does the Washington Times, while Fox News tells it like it is in a "fair and balanced" way while the story seems quite different on CNN or MSNBC.

The problem is not at all that you feel like arguing with how the news is being reported. You look at all the news and want to know what's really going on. You even end up reading the electronic papers from the UK, where they openly practice "advocacy journalism" (you do know where The Guardian stands), and don't even pretend to have no point of view, as we do on this side of the pond. (Fox News pretends that a lot with their "no spin" chant.) And then there are all those papers in other countries, often available in translation, out there for consideration. Everyone is telling this story or that, slightly differently.

So, given what happened (the events), how do you figure out just what really happened, and how do you fit that, if you can figure it out, into a context of how the things in the world are going? You'd like to know that, but there's a torrent of reporting, and some days al Jazeera seems more accurate than what you find on the ABC Evening News. It seems a lot of Iraq civilians have died rather nastily in the last three years as the result of what we're up to over there, and the locals aren't too happy about it - they don't seem grateful at all. Is consistently reporting on those deaths (it has been consistent) and outrages (depending on you point of view) "news," or should the domestic audience's "sensibilities" over here be taken into account?

Maybe so, as "the news" is "the news business" - journalists get paid from advertising revenue, and advertisers don't want to offend anyone. Bloggers - web writers - don't generally get paid. And they offend a whole lot of people, not just professional journalists.

Welcome to the Information Age - and now try to figure out what's happening in the world.

The Context Puzzle

Okay, late in December the New York Times, after sitting on the story for more than a year, tells us the president had, in late 2001, authorized the National Security Agency (NSA) to ignore the FISA Act of 1978 and listen in on the domestic calls of American citizens - and it seems this may also involve "data mining" - scanning two million calls an hour, and all email passing through all the major ISP hubs, and wholesale tracking who visits what websites (although that last may be both silly and impractical). The FISA Act of 1978 is law, passed by congress - you cannot "spy" on American citizens without a warrant and probable cause. The Fourth Amendment is clear. You certainly can do it - and should to protect the country - but you have to have that warrant. It's a bit of a safeguard against abuse. The FISA Act of 1978 created a special, secret court to issue such warrants. They approve almost all requests for warrants - the "probable cause" bar isn't high. And if it's an emergency, you can do the spying and inform the court of why you did that up to fifteen days after the fact. The president told the NSA to ignore the court and just do the spying. This seems to be a clear case of the president ordering the folks in a federal agency to break the law. No wonder some of them spilled the beans to the Times.

Newsweek then tells us the president had, in early December, called the publisher and editor-in-chief of the Times to the Oval Office and asked them not to run the story - but that didn't work. Three weeks later they ran it. Their only concession was to leave out technical details that would reveal too much about what we really can do. What did that matter? Their story was not about the technical details - it was about the executive order to ignore the law.

The story comes out. The president says he has the authority to do what he did, and he definitely will continue the program. The claim to authority is two-fold. His in-house law team, from John Yoo to Harriet Miers to the Attorney General, says the constitution gives him this power during wartime, as he is commander-in-chief of the armed services, and this is, really, part of that job. This may seem like he's breaking the law, but he really isn't, as his "war powers" renders that specific law moot. Secondly he claims the 2001 congressional authorization, to use "necessary and appropriate force" to deal with terrorists and those who support terrorism, implies that he was given the authority to ignore this specific and old law passed by congress. What else could they have meant by their vote? They said he could.

Then the Attorney General holds a news conference says they thought about going back to the congress and asking that the law be changed, but were told they'd lose that one, so they didn't.

This begs context of course, and the issue isn't really weather the president broke the law, and continues to do so. The question is whether he has the inherent authority to do so, or even if not, was he given, by congress, specific authority to do so. The answer is not in any news story. It is a question of how our government works - how it has worked in the past and how it should work in the future.

But putting the question in context causes no end of spin. There are constitutional scholars who think this view of the president's inherent power to put himself above any specific law is anywhere from "novel" to "bizarre." Such claims are rare, and they have been shot down again and again. Ask Harry Truman's ghost, or the ghost of Richard Nixon.

There are many in congress who now argue they did not in any way grant the president any such specific authority to ignore a law they passed. There are, though, those in congress who say it makes sense in this day and age - and you get folks on television saying following the letter of the law doesn't do much good when you're dead, and having Patrick Henry's words thrown back in their face - "Give me liberty or give me death!" And the commentary runs from people saying the president is only doing what needs to be done to keep us all safe - the "battered, misunderstood but noble hero" ploy - to others saying this a is a de facto coup and he's made himself a dictator, above all laws. Take your choice.

And what do most folks think? There was that Rasmussen poll that showed sixty-four percent support for this "secret eavesdropping" program. And then someone pointed out the question did not include "without a warrant" - nothing about eavesdropping with no probably cause and all that. So that poll is of limited use. Who doesn't think that if there's probably cause and a judge issues a warrant, the government really ought to find out just what's going on that could hurt us all badly? Who thinks probable cause doesn't matter? You cannot tell from this poll.

Here's an interesting comment, from the ULCA professor, Mark Kleiman –

... unlike some of my liberal friends, I don't think the answer would be much different if the phrase "without a warrant" had been included. The key missing word was "illegally."

The idea that we need to protect our privacy even in the face of the terrorist threat is almost certainly restricted to a minority, though a minority that includes almost everyone you know. So if the question is framed in terms of security versus privacy or liberty, it's a losing issue for the Democrats...

But the idea that the President should obey the law enjoys very widespread support. That's the frame Democrats, and friends of civil liberty, should try to put around this issue. Just keep repeating "a government of laws, not of men."

One blogger - I'd be grateful for a pointer to a link - made another point I'd like to hear more of. The ability to spy on domestic conversations is obviously abusable. And we already know that Tom DeLay tricked the Department of Homeland Security into tracking the whereabouts of Texas Democratic legislators who had fled to Oklahoma to try to block a quorum for DeLay's redistricting scheme. And we know that DeLay got away with it. So if the question on the table is "Will the Republicans abuse domestic-security powers for political purposes?" We know that the answer is "Yes."

Ah yes, context and framing, and thinking back on what happened before. As for "the idea that the President should obey the law enjoys very widespread support," well, that may now be a misreading. It's hard to tell. That, to keep us safe, he really doesn't have to, and shouldn't, is now on the table. Kleiman maybe misreading the current context - and this is then wishful thinking. We'll see.

Context? Here Andrew Sullivan works on it , saying this is the big question of the new year - "Do we have a president who refuses, in any matter tangentially related to the war on terror, to obey the law? We know he broke the FISA law and lied about it. We know he broke US law against torturing detainees, and lied about it."

The problem for Sullivan is a new detail, adding further context. The president just signed the McCain Amendment into law, but as we see here, issued a "signing statement" saying he doesn't see himself as bound by the amendment –

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Sullivan's translation? "I will violate this law whenever I feel like it."

This is most curious. One really does want to know just what's going on.

More context from Steve Benen here, trying to make sense of how this "new theory" of presidential powers (or, from the other point of view, this "correct theory" of what the constitution really means) is playing out in terms of who is supporting the president on this.

He notes Senator Richard Lugar, the senior senator from Indiana (and Denison University '55), is an example of the president's own folks pushing back. Last month Lugar criticized the administration's practice of paying Iraqi news outlets to publish American propaganda, then said the president "should be more like Bill Clinton" when it comes to being exposed to a variety competing ideas, and now he's one of those calling for congressional hearings into this here warrantless-search program. (Benen has links to all those news stories, if you like to see that's just what Lugar did.) And that makes five Republican senators calling for hearings.

Here we see, from disparate news stories, a pattern. But Benen lists too the Republican senators arguing the other way, like Senator Mitch McConnell (Kentucky) arguing on Fox News that the warrantless-search program was a legitimate use of presidential power because "the president believes very, very strongly that he has the constitutional authority."

Yeah, if you believe it then it must be so.

Anyway, this bit of context is odd - the big question may be which senate committee chairman will get to host the hearings - Arlen Specter (Judiciary) or Pat Roberts (Intelligence). Roberts has already announced he believes that the administration's actions in this are perfectly legal.

By the way, a review of all the conservative critics of the president on the NSA illegal spying scandal can be found here - Glenn Greenwald doing what bloggers do - filling in the detail.

One really does want to know just what's going on.

How do you fit this in the pattern - the Times again, reporting the former Attorney General and his second in command wouldn't sign off on this "bypass the law" executive order?

The Times reports this –

On one day in the spring of 2004, White House chief of staff Andy Card and the then White House Counsel Alberto Gonzales made a bedside visit to John Ashcroft, attorney general at the time, who was stricken with a rare and painful pancreatic disease, to try -without success - to get him to reverse his deputy, Acting Attorney General James Comey, who was balking at the warrantless eavesdropping.

Without success? Newsweek also reports John Ashcroft had qualms about the NSA secret domestic spying program here. And James Comey resigned in March 2005, of course.

How do your read those tealeaves?

Maybe like this (Kevin Drum) –

... something is seriously wrong here. After all, we now know that the FISA court was unhappy about the NSA program; Congress was unwilling to pass a law authorizing it; and both John Ashcroft and his chief deputy - in an election year! - eventually came to feel that the program was being abused. That's the trifecta: senior officials in all three branches of government felt that the program went beyond the president's authority.
This whole thing is kind of depressing, isn't it? I don't mean in just the obvious sense, but also in the sense that this issue seems like such a clear loser for Democrats. Once again the president will be allowed to paint this as an issue of either wholeheartedly supporting the fight against terrorism or else being one of those whiny liberals who's allied with Osama in all but name. That the real issue is that Bush secretly broke the law instead of getting congressional authorization for it - which would have been a slam dunk for any remotely reasonable program - will end up lost in a whirlwind of the jingoistic bloviating we've come to expect from Fox News and Dick Cheney.

But who knows? Maybe this time the press will see through the prattle and write about this scandal without the usual insistence on accepting transparently childish talking points from the conservo-bots as actual reportable news. That would be a nice New Year's present.

Oh, and maybe then the tooth fairy will drop by with that quarter he forgot to give me 40 years ago. You never know.

Yeah, and fit this into the puzzle - Christopher Lee in the Washington Post: Alito Once Made Case For Presidential Power - "As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. tried to help tip the balance of power between Congress and the White House a little more in favor of the executive branch. - In the 1980s, the Reagan administration ..."

Why was this guy nominated to the court?

Something is up.

And then there's this NSA gave other agencies surveillance data –

Information captured by the National Security Agency's secret eavesdropping on communications between the United States and overseas has been passed on to other government agencies, which cross-check the information with tips and information collected in other databases, current and former administration officials said.

The NSA has turned such information over to the Defense Intelligence Agency (DIA) and to other government entities, said three current and former senior administration officials, although it could not be determined which agencies received what types of information. Information from intercepts -- which typically includes records of telephone or e-mail communications -- would be made available by request to agencies that are allowed to have it, including the FBI, DIA, CIA and Department of Homeland Security, one former official said.

So the field office of the Pentagon that checks up on Quaker grandmothers and vegans and gay groups as subversives gets the data too. Oh great.

Here's a video clip of President Truman from April 24, 1950, saying this - "Now I am going to tell you how we are not going to fight communism. We are not going to transform our fine FBI into a Gestapo secret police. That is what some people would like to do. We are not going to try to control what our people read and say and think. We are not going to turn the United States into a right-wing totalitarian country in order to deal with a left-wing totalitarian threat."

Ah, those were the days.

Is this (Atrios) how things are? –

... 2005 was the year that the president of the United States declared proudly that he had broken the law repeatedly and with full intention, that he had the power to do so whenever he wanted to, and that he would continue to do so whenever he determined it to be desirable. This declaration was met with basic approval from much of the beltway chattering classes, prominent libertarian bloggers, and just about every small government conservative.

The issue is simple: Bush has declared that one man has the right to make the law whenever, in his determination, national security warrants it. While even I can understand the necessity of broad executive powers in emergency situations, we aren't anywhere close to being in one of those. If Bush decides that personally shooting dissident bloggers or pesky journalists in the head is in fact necessary for national security, then no one can object. The fact that he has not, as far as we know, done any such thing does not matter in the slightest. By conferring dictatorial authority on himself Bush has declared that this is, in fact, a dictatorship even if he hasn't (yet) bothered using such authorities to the fullest of his claimed ability.

It's a mystery why Russert [see Meet the Press and MSNBC] and the gang can giggle over their little roundtables, essentially ignoring what amounts to a military coup by our own president. He's asserted the authority of commander in chief over the entire country, and not just the military to which the constitution grants him such authority. Yes, we hope and generally assume that this temper tantrum by our boy king will pass in three years, that his overreach will not have long lasting effects, that the crisis will pass.

2005 was the year the president declared he was the law, and few of our elite opinion makers and shapers bothered to notice, or care.

Well, maybe that's just what is up - what amounts to a military coup by our own president.

No, that couldn't be.

Newsweek has a long item on what's really going on, and as they explain - "The message to White House lawyers from their commander in chief, recalls one who was deeply involved at the time, was clear enough: find a way to exercise the full panoply of powers granted the president by Congress and the Constitution."

Bullshit. The "full panoply of powers granted the president by Congress and the Constitution" is under discussion. That's the issue.

Another blogger adding context? Digby, here –

First of all, I'm sick of this bullshit about the president being the commander in chief all the time. This isn't a military dictatorship. Citizens, and even lawyers in the Justice department, don't have a commander in chief. We have a president. I know that's not as glamorous or as, like, totally awesome, but that is what it is. A civilian, elected official who functions as the commander in chief of the armed forces.

And, like all bloggers, who love to look at source material, he links to Henry Hyde arguing for the impeachment of Bill Clinton here –

That none of us is above the law is a bedrock principle of democracy. To erode that bedrock is to risk even further injustice. To erode that bedrock is to subscribe, to a "divine right of kings" theory of governance, in which those who govern are absolved from adhering to the basic moral standards to which the governed are accountable.

We must never tolerate one law for the Ruler, and another for the Ruled. If we do, we break faith with our ancestors from Bunker Hill, Lexington and Concord to Flanders Field, Normandy, Iwo Jima, Panmunjon, Saigon and Desert Storm.

Let us be clear: The vote that you are asked to cast is, in the final analysis, a vote about the rule of law.

There's context for you. We're there again.

But if this really is "a military coup by our own president," he really ought get the military in line. See this -

Support for President Bush and for the war in Iraq has slipped significantly in the last year among members of the military's professional core, according to the 2005 Military Times Poll.

Approval of the president's Iraq policy fell 9 percentage points from 2004; a bare majority, 54 percent, now say they view his performance on Iraq as favorable. Support for his overall performance fell 11 points, to 60 percent, among active-duty readers of the Military Times newspapers. Though support both for President Bush and for the war in Iraq remains significantly higher than in the public as a whole, the drop is likely to add further fuel to the heated debate over Iraq policy. In 2003 and 2004, supporters of the war in Iraq pointed to high approval ratings in the Military Times Poll as a signal that military members were behind President Bush's the president's policy.

Oh crap. You can't have "a military coup by our own president" if the military isn't on board.

The context question, with all this news - what this all means and how it fits together - is a puzzler. Let's go with the "coup" narrative here.