Friday, March 17, 2006

Shark and Shepherd in the MSM

Russ Feingold's column defending the indefensible and my opposing view are now available at JS Online. We report; you decide.

But there are two huge upsets underway right now, so I got to go. He's brought the weak stuff and I'll comment on that later.


Anonymous said...

Too bad your piece is in the Saturday paper. Good stuff.

Seth Zlotocha said...

This line, to me, seems to be the crux of your argument because it's the only explicit defense of warrantless wiretapping you provide:

"Over the years, certain justices have stated their belief that such surveillance is an inherent aspect of the president's authority with respect to national security and the conduct of military affairs. Several lower courts, including the FISA Court of Review, have agreed."

It's not that I don't trust you, Rick, but could you link to some of those court opinions on the allowance of warrantless wiretapping on American citizens by the government?

One more thing. You think Feingold brought the weak stuff? In terms of public opinion, which is the forum at hand, I think Feingold knocked one out of the park with pointing out how Bush blatantly and repeatedly lied to the American public about this issue--and not too long ago, either.

Granted, that may not matter in a courtroom, but that's not the audience of the editorial. I have no doubt Feingold would be happy to debate the judicial underpinnings of the issue with anyone given the chance.

Rick Esenberg said...


Fair enough. But you must recall that the paper hasn't gotten around to embedding links in the on-line version of its dead tree columns. I wish it would. I wrote the piece in about 45 minutes and then spent three hours trying to shrink it to a length that I could send to Mabel Wong without her telling me I was nuts. As it was, it was by far the longest column I have ever submitted and well over the word limit.

But, to be clear (as I tried, after all of that, to be), the issue of inherent authority is not clearly resolved. I think it likely that the Court would go the president's way, but that's a prediction, not a fact.

In my view, however, the fact that we can be arguing about this makes censure inappropriate. You don't call Presidents criminal for taking reasonable (even if ultimately erroneous) legal positions.

As far as the court of public opinion, are you sober? (It's Firday and St. Patrick's Day; it's ok if you're not.) I didn't respond to Feingold's specific statements about "lying" because I didn't know he made them. Altough I suspected he'd do that, I was told that the subject was the propriety of the NSA program.

But, as I suggested to your buddy Jay, I'm happy to make the question of whether Bush should listen to people who are talking to terrorists overseas the issue in the fall elections.

Rick Esenberg said...


Thanks but look at the bright side. It was Saturday for Russ too.

Seth Zlotocha said...

I didn't expect you to provide the links in the article; I thought you could put them on your blog.

And I also didn't expect you to respond to Feingold's comments about Bush lying in your article, nor was I asking you to respond to them in your blog. All I was doing was pointing out that Feingold's argument was actually quite strong considering the intended audience.

Lastly, whether Bush should be able to listen to people talking to terrorists is not the issue. Nobody, including Feingold, is disputing that that's a good idea and should be done. The question at hand is how Bush went about listening to the phone conversations of American citizens.

After all, if Bush was so confident that public opinion was on his side to do warrantless wiretapping of US citizens, why would he go out of his way to repeatedly assure the public all surveillance activities were conducted with a warrant?

Jay Bullock said...

Rick, unsurprisingly, I am unpersuaded. It's late now, and I have TV and BlogFest 06!!!!!!!!!!!!!!!! tomorrow, so I won't get to a full fisking until tomorrow evening, but it seems to me that this part--
It is hard to answer that because we don't know exactly what the NSA program, which is necessarily secret, entails. It might, for example, involve computer monitoring of large numbers of communications to which the traditional notions of probable cause are ill-suited.
--puts us in a quandary. Either 1) the administration could get FISA warrants and just doesn't want to; or 2) the president is lying when he has describes the program to the American people. He could have said, "We're using top-secret stuff"; instead, he chose to tell us about the numbers on the captured terrorists' cell phones.

And it worries me muchly that we might be pursuing surveillance against US citizens without the probable cause demanded by the fourth amendment.

Other things to follow, understandably, later.

Billiam said...

Yep, the President is always lying, to those opposed to him. He never lies to those who are for him. For the open minded, it's a little of both. Nice column Rick!

Anonymous said...

Demagoguery. Great finish.

Jay Bullock said...

Rick, FYI, my response.