Veterans for Common Sense

OP_ED: Vice President Cheney and The Fight Over “Inherent” Presidential Powers: His Attempt to Swing the Pendulum Back Began Long Before 9/11

By JOHN W. DEAN, Find Law, Friday, Feb. 10, 2006

Vice President Dick Cheney has stirred up an old fight in Washington. He sent a rookie, however, to make his case publicly. It did not work.  Attorney General Alberto Gonzales appeared before the Senate Judiciary Committee to offer what may have been the weakest legal argument for presidential power to conduct warrantless electronic surveillance since Nixon’s Justice Department invoked the views of King George III.

King George III’s take on the matter did not carry any weight either. Indeed, the D.C. Circuit Court of Appeals could barely believe the Nixon Justice Department was serious. The panel reminded the government’s lawyers that warrantless searches were among the very reasons the colonies fought for their independence.

As for the reaction to the Gonzales testimony, a New York Times editorial described it as “a daylong display of cynical hair-splitting, obfuscation, disinformation and stonewalling.” The Times also noted committee chairman Arlen Specter’s analysis of the Attorney General’s legal position: It “just defies logic.”

The Illogic Of the Bush Administration’s Position on Congress’ Law and Views

Chairman Specter is correct. Gonzales’ position is that the President can make his own rules, notwithstanding the existence of a federal statute – the Foreign Intelligence Surveillance Act (FISA) – that is directly on point, expressly prohibiting warrantless electronic surveillance. For the Attorney General to defend such a view defies “the equilibrium of our constitutional system” to use Chairman Specter’s words – treating Congress’ clear word on the matter, as if had never been spoken at all.

Warrantless wiretapping, moreover, is not just a separation-of-powers violation; it is also a federal crime. I suspect we will hear more from Chairman Specter on this issue, for he has great respect for the rule of law.

Equally illogical is Vice President Dick Cheney’s position — and if anyone does not believe that Cheney is not behind this ruckus, they do not know Cheney or his history. Let me start by describing his give-no-quarter stance.

After the Attorney General’s testimony concluded, and given the doubts expressed about it by both Republicans and Democrats on the Senate Judiciary Committee, PBS newsman Jim Lehrer asked Cheney if President Bush would cooperate with Congress to “settle some of the legal disputes about the NSA surveillance program?” Cheney responded with a polite, hell no. (Incidentally, this was Cheney’s first interview with other than a conservative news person.) “We believe, Jim, that we have all the legal authority we need,” Cheney said. “[The President] indicated the other day he’s willing to listen to ideas from the Congress, and certainly they have the right and the responsibility to suggest whatever they want to suggest.”

The President will listen to ideas and suggestions from the Congress, but he will not follow a law it has written (and a prior President has signed into law) on the subject? This is not exactly a logical stance.

Congresswoman Wilson’s Call For Details: Initially Resisted, Finally Addressed

Nor is the on-again/off-again stance the administration has taken regarding whether it will even share with Congress the details of the NSA surveillance program.

The off-again stance was simply absurd. With every indication suggesting that the President directed the NSA to violate federal law, the Administration seemed to maintain that Congress somehow lacked even the authority to investigate the most basic facts relating to the illegality: Who, what, when, where and how.

At first, the Administration refused even to brief the House intelligence subcommittee that oversees the NSA. Laudably, the Committee’s Chair, Heather Wilson, R-N.M., subsequently broke with the Administration and called for a full review of the NSA’s program. Initially, the White House once again resisted. But finally, it instructed the NSA to brief the House subcommittee.

It wasn’t logic that made the Administration capitulate, of course. It was a tactical, political decision: an effort to not let too much steam build among Congressional Republicans on this issue. What I have called illogical, former Georgia Congressman Bob Barr appropriately described as a kabuki dance with Congress in his recent column for this site.

Cheney Wants To Swing the Pendulum Back on the Executive Power Issue

Actually, all this is something of a periodic Washington ritual. And no one enjoys beating this drum to keep the executive power issue alive more than Dick Cheney. It may, in fact, be the reason he selected himself to be George Bush’s Vice President.

“In the aftermath of Vietnam and Watergate,” Cheney recently told the Wall Street Journal, “there was a concerted effort to place limits and restrictions on presidential authority.” There were “a series of decisions,” he explained, “that were aimed at the time at trying to avoid a repeat of things like Vietnam or … Watergate.”

“I thought they were misguided then,” he continued, and “given the world that we live in [today] that the president needs to have unimpaired executive authority.” Cheney said the only restraint on the president should be “the Constitution.” He did not say, however, as he has on other occasions, that it is the president who says what the Constitution means, as far as his own duties and responsibilities.

But that point of view is implicit in Cheney’s comment that “the pendulum from time to time throughout history has swung from side to side–Congress was pre-eminent, or the executive was pre-eminent–and as I say, I believe in this day and age, it’s important that we have a strong presidency.”

This View Long Predated 9/11: Startling Statements in Iran-Contra Minority Views

Do not, however, mistake Cheney’s reference to “this day and age” as having anything to do with terrorism. Long before 9/11, Cheney was pushing this cause.

To understand Cheney’s position, he suggests that others “go back and look at the minority views that were filed with the Iran-Contra report, [and] you’ll see a strong statement about the president’s prerogatives and responsibilities in the foreign policy/national security area in particular.”

If one does as Cheney says, as I have, what will be found is rather startling, to say the least.

The so-called Iran Contra report to which Cheney is referring emerged as part of a five-hundred page final report of a Congressional investigation which lasted eleven months. The investigation was undertaken by a joint committee of both House and Senate, of which then-Representative Dick Cheney was Vice-Chair.

At issue was whether the Reagan Administration had ignored the Boland Amendment, a 1984 law that restricted the CIA’s use of appropriated funds to support the Nicaragua Contra movement – and, relatedly, whether Congress had been properly informed about the Administration’s actions.

The majority report asserted that the entire affair “was characterized by pervasive dishonesty and inordinate secrecy.” But Cheney authored a minority report – joined by several other Republicans, though not all.

Cheney’s report took a very different view: He called the failures of the Reagan White House to comply with the laws “mistakes,” insisting they “were just that — mistakes in judgment and nothing more.”

These so-called mistakes were actually serious criminal offenses according to Independent Counsel Lawrence Walsh, who successfully prosecuted some eight Reagan officials for their mistakes. All eight, however, either had their verdicts reversed on technicalities, or were pardoned by President George H.W. Bush. The George W. administration hired many of these people, and has made the records of George H.W. Bush disappear.

Somewhat astoundingly, Cheney’s minority report not only defended the White House’s lawbreaking but also scolded Congress for passing the relevant laws in the first place. Congress, he argued, was “abusing its power” when it adopted laws restricting the president’s spending of money to aide the Nicaraguan Contras. “Congress must recognize that effective foreign policy requires, and the Constitution mandates, the President to be the country’s foreign policy leader,” Cheney’s report declared, ignoring the fact the Constitution gives Congress exclusive power over the purse.

Clearly, Cheney’s mindset about the Congress vis-à-vis the president has changed little since 1987. His position, however, is far from as solid as he claims.

Presidents Do Not Have Exclusive Authority in National Security

Since the time the Constitution was adopted, there has been an unresolved (if not irresolvable) debate over the allocation of foreign policy powers between Congress and the president. There are highly respected authorities on both sides of the question. No wonder, for as Harvard professor and presidential powers scholar Edwin S. Corwin explained, the Constitution itself “is an invitation to struggle for the privilege of directing American foreign policy.”

Corwin added, however, the “verdict of history … is that the power to determine the substantive content of American foreign policy is a divided power, with the lion’s share falling usually, though by no means always, to the President.” (Emphasis in original.) If there is a more accurate assessment of these powers, I have never found it.

Article II of the Constitution, which sets forth presidential powers, is so vague that not even the Framers of the Constitution themselves agreed about its meaning. James Madison made the point in Federalist No. 37, stating “that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces — the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches.”

Madison believed the meaning of this great charter would “be liquidated and ascertained by a series of particular discussions and adjudications.” But it has not worked out that way. For example, the U.S. Supreme Court has two rival holdings regarding the conduct of foreign affairs – each suitable for citation by one side in the ongoing debate.

Cheney, and those who subscribe to his point of view, find solace in the Court’s 1936 decision in U.S. v. Curtiss-Wright Export Corporation. Ironically, conservatives once loathed this ruling – which recognized President Franklin Roosevelt’s preeminence in foreign policy.

Meanwhile, those who believe presidential powers in foreign affairs may be constrained by laws passed by Congress, find support in the Court’s 1952 decision in Youngstown Sheet and Tube Co. v. Sawyer. There, the Court directly prohibited President Truman from seizing the nation’s steel mills for military needs during the Korean War, on the ground that Congress, by law, had prohibited using such means to settle a strike.

Both of these precedents stand. But the Youngtown ruling, particularly the concurrence by Justice Robert Jackson, has long been considered the best statement of the law. Still, with both decisions on the books, the “discussions and adjudications,” which have been going on for two centuries now, have never been fully judicially resolved.

I believe they have been politically resolved, however. Moreover, Bush and Cheney’s presidency presents a clear-cut case of a violation of that political resolution – for it has pushed the exclusivity of the president in matters of national security further than any predecessor, including the Nixon Administration, did. For that reason, I will return to this subject in a following column.

The United States of America has historically enjoyed self-sufficiency in times of both war and peace but in order to better assess its present place in the world as concerns its military and economic strength, it is important to reflect on its foundation. There is daily talk from Wall Street to Capitol Hill with respect to spread sheets and global policy, but it perhaps falls short when it comes down to addressing the average U.S. wage earner, and how both will ultimately affect jobs and the country’s national security and defense.

It is important to note, that as our forefathers were fighting for independence from England during the Revolutionary War, seldom do we hear about the underlying and overwhelming task they endured in order to supply an army without an industrial base. In order for success, the Colonies depended upon France and the Netherlands for everything from blankets and clothing to gunpowder, muskets, munitions, and food. Benjamin Franklin bartered a deal with France to ship across the Atlantic Ocean by way of the Netherlands’ St. Eustatius Island, in order for George Washington and his troops to have the means to defend themselves. Perhaps you want quick money, but you once tried stock exchange and lost millions of dollars. Of course, no one won’t be worried to trade again after earning less than what you lost in a previous trade. However, worry no more as 5 pips a day Program can now cover you and make you thousands every day. If you are looking for the best trade selling company here you will get a best option.

In light of the French Revolution at the turn of the 18th century, when the Netherlands were seized by Napoleon and President John Adams came close to war with France, a primary U.S. ally just years earlier, self –sufficiency was the order of the day. In 1791, Alexander Hamilton, the first U.S. Secretary of the Treasury, was asked by President George Washington and the U.S. Congress to officially document U.S. policy on industrial and military self-sufficiency. It read, “Not only have the wealth, but the independence and security of a country, appear to be materially connected with the prosperity of manufactures. Every nation, with a view to those great objects, ought to endeavour to possess within itself all the essentials of national supply. These comprise the means of subsistence, habitation, clothing and defense. The possession of these is necessary to the perfection of the body politic: to the safety as well as to the welfare of the society.”

The Industrial Revolution of the 19th century secured the U.S.policy of self-sufficiency, transforming it into a global power. Due to the strength of its industrialization the U.S. was able to defeat its enemies in World War I. With the advent of the automobile, which Henry Ford learned to mass-produce, weaponry and machinery produced for World War II benefited from the automobile factory. Rupture disks can be used to specifically protect installations against unacceptably high pressures, For the best rupture disc goto our site. Production of Sherman tanks, Army jeeps, airplanes and PT boats evolved from such civilian U.S. factories. And in the 1950’s the industrial base was modernized for the Korean War effort.

The industrial base and manufacturing for the U.S. military were necessarily intertwined. But following the end of the Cold War there has been a deliberate decomposition of U.S. industry, unprecedented in American history. There are a number of factors which have contributed to U.S. dependence on foreign trade, primarily with India and China, which has not only led to millions of U.S. manufacturing and engineering jobs permanently lost, but paints a grim picture for the long term stability of the U.S. military supply line. You can follow Trublutint for more info about manufacturing or auto sector.

The dependence on foreign oil and the subsequent OPEC oil embargo in the 1970’s, the U.S. policy of deregulation of corporations of the 1980’s, the passage of the North American Free Trade Agreement (NAFTA) in 1994, and the World Trade Organization (WTO) in 2001 allowing China to become a member, collectively accelerated U.S. dependence on cheap labor offshore. Thus, dependency and reliance on suppliers from all over the world for military equipment and machinery components and parts, required for their manufacture, leaves the U.S. vulnerable.

The Defense Department runs a program called the Diminishing Manufacturing Sources and Materials Shortage (DMSMS) at the Tank Automotive and Armaments Command (TACOM). Its purpose is to identify shortages of parts, processes and materials necessary to procure for military buyers. A problem for military acquisitions has been procuring weapon system metal castings as a direct result of plant closings. The majority of castings now come from China and other third-world countries. Along with the foreign dependence on metal castings manufacture its research and development also followed the foundry industry offshore. At https://cwrresources.com you will get the best processing plant machinery.

DMSMS program managers are aware that there are problems in finding sub-parts and components. Not only have replacement parts started to rapidly diminish, but the chemicals needed in their manufacture have as well. Without specific chemicals certain processes cannot be done. For example, there is only one company left in the U.S. that produces a roller cutter for armored plate or heavy steel which was an indirect consequence of supplying armor kits for U.S. Humvees in the War in Iraq. When the Pentagon learned there was an immediate need at the end of 2004, it called for expediency in their manufacture. Sadly, it took almost a year due to the limited facilities producing such.

Another issue arose when a foreign corporation purchased the only us companies in mexico which produced a chemical used for a common binder which secures windows and aluminum panels in aircraft. The company eventually folded when it could not meet Occupational Safety and Health Administration (OSHA) and Environmental Protection Agency (EPA) standards. Now the U.S. must depend on the company’s offshore subsidiaries.

Similarly, the bearing industry which produces ball-bearings, roller-bearings and anti-friction bearings is an endangered U.S. industry, key to the production of military gear and plays a part in homeland security. They are components necessary to produce electric motors for conveyor belts such as in factories, steel mills, in airports, in mining, and with the equipment used to manufacture automobiles. Selecting best manufacturing company will definitely boost profits. You should check how to find best tijuana manufacturing companies. And bearings are critical to the mechanical components of major weapons systems. Losing bearings manufacturing to foreign shores directly impacts the capabilities of weapons manufacturing should there be a change in the geopolitical landscape and a cut-off from U.S. suppliers, whether through war, terrorism, or Mother Nature.

With the military build-up of China over the past decade by benefit of applying commercial technologies to military weaponry and its having become the largest offshore manufacturing base for U.S. corporations, the U.S. continues a delicate balancing act with a Communist nation as its biggest trade partner. With a U.S. trade deficit with China reaching over $200 billion in 2005, multi-national corporations, once U.S. companies operating in the U.S., are now just based in the U.S.

And with a demand by China for foreign direct investment as their incentive to buy U.S. products, companies like Boeing are acquiescing by not only building major portions of airplanes in China, but also creating Research and Development opportunities for Chinese engineers, in order to show its commitment. Intel and Microsoft have also followed suit with major investment in directly hiring engineers in China.

Endless conflicts of interest abound when it comes to foreign dependence in order for the U.S. to maintain its infrastructure, electrical grid, military weaponry and supplies, air travel and homeland security, to name a few. When smaller U.S. specialty industries vital to the industrial base become extinct on our shores, they now appear huge in a world where alliances are tenuous at best. A global economy at the expense of U.S. sovereignty, security and standard of living is something that the Colonists would not have stood for. They would have found another way. Maybe America still has time to do the same.

There are prior and current members of the Bush administration, including Vice President Dick Cheney, who openly argue that if the country is at war, the president should be able to ignore domestic and international law outlawing torture, prohibiting illegal detention, providing due process and jurisdictional restraints on military commissions and limiting domestic spying under alleged commander in chief powers. Such claims are unacceptable. Under Article II, Section 3 of our Constitution, the president has an express and unavoidable duty to faithfully execute the “Laws” and has no power to violate them. As Richard Nixon learned, presidential authorizations to violate the law are, in the words of the House Judiciary Committee, “subversive of constitutional government.”

The radical jurisprudence of adherents to the commander-can-violate-laws theory is not “conservative,” since it necessarily ignores views of the founders and framers and overwhelming recognitions in judicial opinions to the contrary. In particular, it ignores unanimous recognitions by the judiciary that all within the executive branch are bound by the laws of war, and numerous affirmations of a constitutionally based judicial power to apply law in cases before the courts and ultimately to review executive decisions taken in time of war.

Since 1800, Supreme Court opinions have also recognized the power of Congress to limit certain commander in chief powers during actual war. More generally, this power does not apply outside of an actual war, and the United States cannot be at “war” with al-Queda or terrorism as such. Even during actual war, Justice David H. Souter recognized, “the President is not Commander in Chief of the country, only of the military.”

Domestic spying: no authority

Attorney General Alberto Gonzales and President Bush claim that domestic spying in manifest violation of the Foreign Intelligence Surveillance Act (FISA) is permissible under the commander in chief power and is authorized by Congress in broad language in the 2001 Authorization for Use of Military Force (AUMF) regarding individuals responsible for the 9/11 attacks. Similar claims were made in a letter to four members of Congress on Dec. 22 by Assistant Attorney General William E. Moschella. The claims are patently false.

With respect to presidential power, Moschella seriously misread the Prize Cases by ignoring the fact that, immediately before the language he quoted, the Supreme Court expressly referred to two early federal statutes that “authorized . . . [and] bound” the president to use armed force, demonstrating another instance of congressional power to regulate portions of the commander in chief power during actual war. Moreover, any “inherent presidential authority” to spy on Americans at home is not an exclusive power and has been clearly limited in the FISA.

Additionally, there is no congressional authorization in the AUMF to engage in domestic spying. First, there is no persuasive evidence that Congress intended to override any provisions of the FISA. Second, the AUMF contains no express or implied authorization concerning surveillance. With respect to executive action, the purpose of the AUMF is clearly contained in the authorization to use merely “necessary and appropriate force” against those “nations, organizations, or persons” that “planned, authorized, committed, or aided” the 9/11 terrorist attacks or that “harbored such . . . persons.” The authorization of appropriate “force” is not an authorization to torture or to use cruel, inhuman, degrading or humiliating treatment against any person; it is not an authorization to create military commissions that are otherwise without jurisdiction and fail to provide due process required by constitutional and international law; and it is certainly not an authorization to spy on individuals in the United States. The word “appropriate” also impliedly requires compliance with law.

Third, whatever authorizations exist in the AUMF to use force, it is evident that they are restricted in two important respects. The first restriction is recognizable in language reflecting past events. The words “planned, authorized, committed, or aided” refer to the past and more specifically to the events of 9/11. The second restriction is more significant. With respect to the people against whom appropriate force can be directed, the authorization is expressly tied to those who “planned, authorized, committed, or aided” the 9/11 attacks as such or who “harbored such . . . persons.” Not covered are those who merely have, in the president’s words, “known links” with al-Queda or, in Moschella’s words, links with “an affiliated terrorist organization.” Also not covered are misguided people who merely sympathize with the 9/11 terrorists, people who pose “a threat of future terrorist attacks” or people who simply communicate with them.

The FISA provides an appropriate national security tool for spying on transnational communications with the 9/11 and other terrorists. The AUMF does not do so and offers no aid for presidents and others who violate laws concerning inhumane treatment of detainees, military commissions and domestic spying.

Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston and a former captain, U.S. Army judge advocate general’s corps and member of the faculty at the Judge Advocate General’s School (1969-1973).

Probable Cause for Alarm

Press ignores Ex-NSA chief’s ignorance of Constitution

FAIR, January 27, 2006

When FEMA Director Michael Brown claimed not to be aware of the evacuee crisis at the New Orleans Convention Center following Hurricane Katrina (NPR, 9/1/05), many journalists expressed astonishment that a high-ranking official could be so uninformed about a crucial aspect of his job (e.g., Nightline, 9/1/05). But when Gen. Michael Hayden, principal deputy director of National Intelligence and former director of the National Security Agency, displayed an equally astounding lack of knowledge about a matter just as basic to his job, media as a whole let it pass without comment.

The subject in question was the constitutional protections the American public has against government spying–surely a vital thing to understand for the former head of the nation’s top surveillance agency, and the person currently in charge of “overseeing the day-to-day activities of the national intelligence program,” as his Air Force bio states. Those protections are specified in the Fourth Amendment to the Constitution, which reads in full:

     “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Surely it’s not too much to ask that the officials who are entrusted with the ability to spy on virtually any electronic communication have an appreciation of how this amendment limits that ability. Yet in a question-and-answer session at the National Press Club in Washington, D.C. on January 23–before an audience consisting largely of journalists–Hayden repeatedly demonstrated that he does not know the basic language of this key part of the Bill of Rights.

The subject came up when reporter Jonathan Landay of Knight Ridder attempted to preface a question by stating that “the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures.” Hayden interjected: “Actually, the Fourth Amendment actually protects all of us against unreasonable search and seizure. That’s what it says.”

Landay politely corrected him, saying, “But the measure is ‘probable cause,’ I believe.” But Hayden insisted: “The amendment says ‘unreasonable search and seizure.'” When Landay continued, “But does it not say probable–” he was interrupted by Hayden, who said, “No…. The amendment says ‘unreasonable search and seizure.'”

Landay went on to ask his question, which was whether the NSA, by bypassing the special court mandated by the Foreign Intelligence Surveillance Act, had “crafted a detour around the FISA court by creating a new standard of ‘reasonably believe’ in place of ‘probable cause.'” Hayden’s response returned to the issue of the Fourth Amendment:

“I didn’t craft the authorization. I am responding to a lawful order, alright? The attorney general has averred to the lawfulness of the order. Just to be very clear, okay–and, believe me, if there’s any amendment to the Constitution that employees at the National Security Agency is familiar with, it’s the Fourth, alright? And it is a reasonableness standard in the Fourth Amendment. So, what you’ve raised to me–and I’m not a lawyer, and don’t want to become one–but what you’ve raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is ‘reasonable.’ And we believe–I am convinced that we’re lawful because what it is we’re doing is reasonable.”

By showing that he was unaware of the “probable cause” language in the Fourth Amendment, Hayden revealed that his insistence that it was legal for the NSA to conduct warrantless surveillance was not based on even a nodding familiarity with the constitutional issues involved. Given that Hayden’s talk was part of a coordinated Bush administration publicity campaign to stress the legality of such surveillance, his demonstration of ignorance should have been a central point in the subsequent coverage. Instead, most news outlets that covered his speech chose to ignore his exchange with Landay and the knowledge gap it revealed.

The Philadelphia Inquirer, the flagship of the Knight Ridder chain that employs Landay, did publish a transcript of his exchange with Hayden (1/24/06)–though even the Inquirer does not seem to have had a story pointing out the significance of a high-ranking intelligence official not knowing that the Fourth Amendment contains a “probable cause” requirement.

Editor & Publisher, a website that covers journalism issues, carried a story on January 23 with the headline, “Defending Spy Program, General Reveals Shaky Grip on Fourth Amendment.” The story reported that Hayden “appeared to be unfamiliar with the Fourth Amendment to the U.S. Constitution when pressed by a reporter with Knight Ridder’s Washington office–despite his claims that he was actually something of an expert on it.”

On MSNBC’s Countdown (1/24/06), host Keith Olbermann played video of the exchange, followed by a reading of the Fourth Amendment. “It’s hard to tell which is more frightening for those of you in favor of continuing the democracy, the mistake itself, or the general’s insistence that it was not a mistake,” Olbermann commented. “Well, maybe they have a different Constitution over there at the NSA.”

Most outlets, however, ignored Hayden’s inaccurate claims about the Fourth Amendment–even while covering other aspects of his talk. The New York Times (1/24/06) quoted Hayden, from his National Press Club speech, asserting that the NSA is well-versed in what the law allows in terms of spying:

“‘I’m disappointed, I guess, that perhaps the default response for some is to assume the worst,’ General Hayden said. ‘I’m trying to communicate to you that the people who are doing this, OK, go shopping in Glen Burnie and their kids play soccer in Laurel,’ he added, referring to suburbs near NSA headquarters in Maryland. ‘And they know the law,’ he continued. ‘They know American privacy better than the average American, and they’re dedicated to it.'”

The clear evidence from the same speech that the former NSA head does not, in fact, “know the law,” was not included in the story.

The Associated Press (1/24/06) actually quoted from Hayden’s exchange with Landay without pointing out that the constitutional assertion that he was making was patently false:

“Under the Foreign Intelligence Surveillance Act, government officials had to prove to a secretive intelligence court that there was ‘probable cause’ to believe that a person was tied to terrorism. Bush’s program allows senior NSA officials to approve surveillance when there was ‘reason to believe’ the call may involve al-Qaeda and its affiliates. Hayden maintained that the work was within the law. ‘The constitutional standard is reasonable…. I am convinced that we are lawful because what it is we are doing is reasonable,’he said at the National Press Club.”

By attributing the phrase “probable cause” to congressional legislation, and then allowing Hayden, without rebuttal, to claim that the Constitution offered a different standard, the AP accomplished nothing except misinforming its readers.

The First Amendment to the Constitution extends special protection to the press because the framers believed that an unfettered press would help to protect the other rights that the Constitution guaranteed. The lackadaisical media response to the revelation that a high-ranking government official doesn’t even understand what those rights are can only make one worry that the framers’ trust was misplaced.

Jan. 23 (Bloomberg) — “Grave threat” is how U.S. President George W. Bush described Iraq three years ago. Today he uses that same phrase — to characterize Iran.

The resemblance between these two standoffs ends with the rhetoric, analysts say. Iran and its nuclear program today are far more dangerous than Iraq’s was, and U.S. options are far more limited.

As a result, the Bush administration is pursuing a markedly different approach than it did in 2003, when its diplomacy was aimed at lining up allies for a war. This time, U.S. diplomats are seeking an international consensus on how to proceed.

“This administration is forced to follow this route because of the failures of Iraq,” says Joseph Cirincione, director for nonproliferation at the Carnegie Endowment for International Peace, a Washington-based policy-study group.

Cirincione says there “was a lot of talk” among supporters of the Iraq war in the spring of 2003 about “moving on to Tehran” after the U.S. overthrew Saddam Hussein. Now, because of the “bloody quagmire” in Iraq, “we have no really tough option with Iran, certainly none that could be implemented unilaterally,” he says.

Military Obstacles

With 140,000 troops tied down in Iraq, the U.S. military can’t support another invasion and occupation, analysts say. Moreover, Iran’s nuclear sites are dispersed throughout the country and deeply buried, and pinpoint military strikes would inflame anti-Americanism in the Middle East while only delaying, not eradicating, the program.

Because of Iran’s size, a ground invasion may require twice as many troops as in Iraq, says Richard Russell, a Middle East specialist at the National Defense University in Washington. While an air campaign could take out Iran’s air defenses, it could also trigger retaliatory Iranian missile strikes on Israel or U.S. troops in the region, terrorism and oil disruptions, experts say.

And that retaliation, said retired Marine Corps General Anthony Zinni, “would require us to counterattack and escalate.”

“When do we get to the point when we put boots on the ground? That would make Iraq look like a cakewalk for sure,” Zinni, the former commander-in-chief of the U.S. Central Command, which is responsible for U.S. security interests in the Persian Gulf, said in a telephone interview today.

Zinni estimated that a ground invasion of Iran would require “500,000 troops or more.”

Missiles, 900,000 Troops

Iran, the world’s fourth-largest oil producer, is ringed by mountains, is roughly four times the size of Iraq and has almost three times its population. Its military numbers almost 900,000 soldiers and reservists and has long-range missiles that can reach Israel.

Iran dominates the Strait of Hormuz, the waterway through which at least 35 percent of the world’s oil is shipped, and could threaten that commerce with its anti-ship cruise missiles, U.S. military officials say.

Despite such obstacles, some of the same people who pushed most forcefully for action against Iraq are warning today that the administration must ready a similar option for Iran. The editor of the Weekly Standard magazine, William Kristol, wrote last week that the U.S., while pursuing diplomacy, should “prepare for various forms of military action.”

Air-Strike Targets

Michael Eisenstadt, a reserve army officer and a Persian Gulf military specialist at the Washington Institute for Near East Policy, says U.S. planners have undoubtedly begun to think seriously about possible targets for air strikes, especially since the election last year of Mahmoud Ahmadinejad as Iran’s president.

Before then, says Eisenstadt, the military option was “really off the table.” Now he says, “the calculus has changed.” At the same time, Eisenstadt says that no one in Washington is considering a ground invasion, and that the likely Iranian response to air strikes would be terrorism.

Bush cited the need for diplomacy and global consensus at a news conference in Washington on Dec. 19. “Of course we want this to be solved diplomatically, and we want the Iranians to hear a unified voice,” he said. “I know this: People know that an Iran with the capacity to manufacture a nuclear weapon is not in the world’s interest. That’s universally accepted.”

Credibility Problems

Bush acknowledged that America’s faulty prewar intelligence on Iraq has undermined its credibility. “People will say, if we’re trying to make the case on Iran, well, the intelligence failed in Iraq, therefore, how can we trust the intelligence on Iran?” he said.

The U.S. found little evidence of weapons of mass destruction after the Iraq war, including the equipment and materials used to make nuclear weapons. Investigators concluded the nuclear program was largely dormant after the 1991 Gulf war.

Secretary of State Condoleezza Rice heads to Europe later this week for talks ahead of a Feb. 2 meeting of the International Atomic Energy Agency. At that session, the U.S., U.K., Germany and France will seek a resolution referring the Iran issue to the United Nations Security Council for possible imposition of economic sanctions.

L. Paul Bremer, the former U.S. diplomat who was administrator of Iraq after the invasion, said the Iran situation presents a fresh test for the UN. “Whether the Security Council will be able this time to do more than simply pass resolutions that are ignored by the Iranians remains to be seen,” he said in an interview Jan. 20.

Critics Unassuaged

Iran insists its nuclear program is for peaceful purposes. “Our nation doesn’t need nuclear weapons,” Ahmadinejad said in a televised press conference in Tehran Jan. 14. “You can use nuclear technology in several ways, and we want to do so peacefully.”

Such assurances don’t assuage Iran’s critics. A report last month by the Washington-based Heritage Foundation, which generally supports the Bush administration, said Iran “remains determined to develop a full nuclear fuel cycle that would eventually give it a nuclear weapons capability.” The report said that the ascension of Ahmadinejad, “who has publicly criticized past Iranian concessions, has further undermined the prospects for diplomatic success.”

How Long?

Estimates vary on how long it would take for Iran to develop a functional nuclear weapon. U.S. officials have predicted it may take five years, while Israeli officials say it will happen within one — depending in part on whether sanctions are imposed on Iran and whether they have an impact on its nuclear program.

In 2003, U.S. allies resisted the Bush administration’s push for war against Iraq. Now, there is agreement that Iran must be pressured to halt its nuclear research. Mohamed ElBaradei, the IAEA chief who publicly expressed doubts about U.S. prewar claims on Iraqi weapons of mass destruction, has said that Iran’s “full transparency is indispensable and overdue.”

Israel, which Ahmadinejad has threatened to “wipe of the map,” supports taking the diplomatic route. Giora Eiland, Israel’s national security adviser, and Gidon Frank, head of its Nuclear Energy Commission, traveled to Russia on Jan. 17 to brief officials there on Israel’s latest assessment of Iran’s nuclear research efforts, a source familiar with the trip said.

Iran has tried to avoid a referral to the Security Council by warning Jan. 19 of a world oil crisis if sanctions are imposed because of its nuclear program. A majority vote by the 35-member board of the IAEA, the UN’s nuclear watchdog, is required for referral to the Security Council.

Russia, China

Russia and China, which as permanent members of the Security Council can veto any resolution, have commercial interests in Iran. Russia would like to put off a referral at least until March, European Union foreign policy chief Javier Solana said last week. While Chinese envoy Wang Guangya, hasn’t threatened to oppose Security Council referral, has cautioned against taking any step that might end negotiations.

Solana said it may not be clear what action the IAEA will take at the Feb. 2 emergency meeting until the last minute. “Probably on the second of February, I will not be able to answer in the morning,” he said. “I’ll have to probably answer at night.”

To contact the reporter on this story: Janine Zacharia in Washington at jzacharia@bloomberg.net Ken Fireman at Kfireman1@bloomberg.net Last Updated: January 23, 2006 12:05 EST