Baseball Crank
Covering the Front and Back Pages of the Newspaper
February 5, 2006
WAR/LAW: A Piece of the Rock?

Glenn says that Hugh says that Jed says that he heard people saying that Jay Rockefeller was the leaker who gave the NSA story to the New York Times.

Babbin's unnamed sources may or may not be credible (most likely, they only strongly suspect this and don't have personal knowledge of the facts, although FreeRepublic says Babbin "said flat out that they know that Rockefeller is the source of the leak to the NY Times."), but I'm sure the leak investigation has focused on Rockefeller as a potential suspect anyway; whether that leads anywhere remains to be seen. Ironically, if Rockefeller had disclosed the program on the floor of the Senate he could not be prosecuted under the "Speech and Debate" clause in Art. I, Sec. 6:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Note that unlike the privelege from arrest, the Speech and Debate clause is absolute, and contains no exception even for treason. Now, Congressmen and Senators have tried to stretch this to cover prosecutions of all sorts, with decidedly mixed success. Not being an expert on the subject, I'm not sure whether there would be a colorable defense under the Speech and Debate clause for statements made (without the Senator's public identification) to a newspaper, purportedly in the public interest, regarding information obtained in the course of the Senator's duties. You would think not, given the text of the clause, but stranger things have happened in the process of putting a judicial gloss on constitutional provisions.

Posted by Baseball Crank at 12:05 AM | Law 2006-08 • | War 2006 | Comments (7) | TrackBack (0)

Nice clause. Didn't Woodrow WIlson ignore it and go after qa congressman who argued agains the war, after the Great Bigot and Jackass decided to go in?

I don't mean to be snide, and am usually not here, but witht he exception of establishing the Federal Reserve Bank, I consider Woodrow Wilson to be among the most destructive forces ever in the White House, maybe even the worst.

Posted by: Daryl Rosenblatt at February 6, 2006 10:47 AM

Funny how there is all this talk about the leak and not about what was really happening, and how illegal it really was. Bush's 2004 speech should do him in, if we had any sort of media anymore...Kitchen should be hot, but it is barely lukewarm.

Posted by: AstrosFan at February 6, 2006 11:02 AM

Daryl - I'm with you on Wilson. We are still reaping the whirlwind from Versailles. I did my senior thesis in college on Wilson and the Russian Revolution, another classic American story of botched half-measures that sought to mix idealism with realism and accomplished neither. The legacy of WW1 gave us a Communist regime in Moscow, a mess in the Balkans, a mess on Germany's borders with Poland and France, a mess in Palestine/Israel, a mess in Vietnam, a mess in Iraq . . . most of the major American foreign policy crises of the past century grew from seeds planted between 1917 and 1921.

AstrosFan - As I've argued before, (a) if the NSA program was, as we've been told, limited to surveillance of communications of people linked to Al Qaeda, there's no policy problem with it, and (b) under Article II and the Fourth Amendment, there's no Constitutional problem either (aside from the issue of conflict with statutes). Without some really dramatic factual revelations, your side will lose both of those arguments: the Administration appears to have acted both wisely and within its Constitutional authority. And I don't see this getting much traction with the public if you can't budge the meter on those two points.

Now, there's a respectable argument that it nonetheless violated FISA, and that FISA's restrictions are constitutionally permissible, and those are no small things. On the other hand, there appears to be a respectable argument as well that the program at issue wasn't covered by FISA, and I confess I'm still reading up on that argument. But the debates about FISA and its constitutionality are hardly cut and dried.

Posted by: The Crank at February 6, 2006 11:14 AM

Crank, I'm not that profound; I didn't even think of Versailles as his major screwup. It was, but only for the other mess he helped create.

For those who don't know, Woodrow WIlson was a virulent bigot, made James Buchanan look like a saint. Also, after he got us into the war (and I think we had to, since our basic foreign policy is that a strong UK and a strong US is needed to keep the Pond secure. But his adamant stance on war mobilization at all costs led to conditions that fueled the Influenza Pandemic that (at lates numbers) killed 120 million worldwide in under six months, and felled TENS OF MILLIONS of Americans, especially many in overcrowded army barracks. And he had it declared illegal--upheld by the courts, to deliver mail, including magazines that criticized him or his war effort.

He was holding out for a better Versailles deal against that idiot (Foch?) when he caught (aha) the Flu, and never really recovered full brain function. He quickly gave in in all points, so the French demands, with Wilson's now sickly agreement led to WWII. So like Wilson even less than Buchanan.

Posted by: Daryl Rosenblatt at February 6, 2006 1:25 PM

If Senator Reid calls a special closed session and a Senator mentions a secret he later leaks does this cover him?

Posted by: Pat McDonnell at February 6, 2006 3:59 PM

I see Jimmy Carter as the latter-day Woodrow Wilson-both smart, hard-working, and motivated by the best of principles, but utterly lacking in the right temperament to do the job.

Posted by: John Salmon at February 6, 2006 5:51 PM

The Speech and Debate clause doesn't provide absolute protection during 'legislative acts' such as speech, debate, voting on a bill, etc. First, one has to determine whether the action was a 'legitimate legislative act.'

This is how members of Congress have been prosecuted previously for bribery. For instance, Abscam twenty-plus years ago. Likewise, this flexibility is what has Reps. Ney, DeLay, Doolittle and others shaking in their boots in regards to their connections to Jack Abramoff. In Ney's case, he entered comments against then-SunCruz owner Gus Boulis at Abramoff's request. That action is within the bounds of prosecution if it can be proven that Ney made those comments as a result of a quid-quo-pro with Abramoff.

Posted by: heh at February 15, 2006 1:16 AM
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