27 December 2005

NYT: Fit To Wrap Red Herrings

No conspiracies here, but I do want to take a look at how the New York Times' standards have seriously eroded recently.

And since we're talking about rational discourse, I'm picking a piece from their Op-Ed page today that illustrates one of the classic logical fallacies: the red herring.
SHORTLY after the Sept. 11 attacks, President Bush ordered surveillance of international telephone communications by suspected members of Al Qaeda overseas, even if such calls also involved individuals within the United States... Judicial warrants for this surveillance were neither sought nor obtained... The program's existence has now become public, and howls of outrage have ensued. But in fact, the only thing outrageous about this policy is the outrage itself.

The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat, have espoused the same view.
Did you spot the red herring?

This is from a NYT Op-Ed piece titled "Unwarranted Complaints" today by David Rivkin and Lee Casey. Armando has already taken David Rivkin to task, but this Op-Ed needs to be taken apart piece-by-piece.  The regular columnists apparently have the day off, so instead the whole page seems to be devoted to a right-wing propaganda blitz: Democracy's on the march in Iraq, How Evo Morales will be rapidly brought to heel, and this piece of trash on why unwarranted wiretaps are actually legal, constitutional and good for your health.

Let's look at Rivkin's article, because it is a prime example of a classic logical fallacy: the red herring.  That is, supporting your argument with claims that may well be true but are irrelevant to the point under discussion.
SHORTLY after the Sept. 11 attacks, President Bush ordered surveillance of international telephone communications by suspected members of Al Qaeda overseas, even if such calls also involved individuals within the United States.
Rivkin doesn't waste any time here, he invokes 9/11 to scare you right off the bat, and tries to convince you that only Al Qaeda operatives were being monitored, even though whether the targets of the monitoring had any relation to Al Qaeda or any form of terrorism is one of the central issues.
The program's existence has now become public, and howls of outrage have ensued. But in fact, the only thing outrageous about this policy is the outrage itself.
Ah yes, outraged by the outrage.  The same intellectually and morally bankrupt position the administration's pet apologist adopted after the Abu Ghraib story broke.
The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing.
Ding Ding Ding! Did you spot the red herring?  Nobody is questioning the presidential authority to acquire foreign intelligence.  Rivkin's assertion of this, and the paragraph that follows, is completely irrelevant to the wiretap matter or the ensuing outrage.  Of course, one usually leads with one's strongest point in this kind of debate, and the fact that he picked a red herring is telling. His argument only goes downhill from there.

Although the administration could have sought such warrants, it chose not to for good reasons. The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps. Furthermore, the FISA court is not a rubber stamp and may well decline to issue warrants even when wartime necessity compels surveillance.
This is nonsense with a bald-faced lie for a chaser.  Is he claiming that the President's "good reason" for not following the law was to save a few "bureaucratic steps?" That sounds more like laziness than a good reason.  Further, we know that the number of requests rejected by the FISC can be counted on one hand, which sounds an awful lot like a rubber stamp to me.  And I challenge anyone to produce a single instance of a warrant being denied despite "wartime necessity."  If that means the whole program needs to be declassified for public evaluation, let's do that.
More to the point, the surveillance act was designed for the intricate "spy versus spy" world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds. It was not drafted to deal with the collection of intelligence involving the enemy's military operations in wartime, when information must be put to immediate use.
Back-to-back red herrings here.  In fact the first sentence is an outright lie: the act was designed to curtail abuses stemming from cold-war surveillance, when the government turned the capability to domestic surveillance for purely political purposes.  History appears to be repeating itself. Then there's his bizarre implication that Al Qaeda operatives have some kind of bigger and badder superpowers than the agents of the USSR.  Sorry, not buying that one at all.  In the next sentence he is correct that FISA's purpose is not to deal with intelligence for war-fighting, but that fact is completely irrelevant.  Remember we're talking about unwarranted domestic surveillance here, not battlefield communications in Afghanistan.

Followed immediately by yet another red herring, and this one you've got to see to believe.  When you get to the conclusions he draws from it, you'll see that it is a whopper indeed:
Indeed, it is highly doubtful whether individuals involved in a conflict have any "reasonable expectation of privacy" in their communications, which is the touchstone of protection under both the Fourth Amendment and the surveillance act itself - anymore than a tank commander has a reasonable expectation of privacy in his communications with his commanders on the battlefield. The same goes for noncombatants swept up in the hostilities.
Again, he's using the red herring of battlefield communications here to argue that warrantless domestic surveillance is hunky-dory.  Now look at the implications: "The same goes for non-combatants..." Wow! The implication here is that since the "War On Terror" is being waged everywhere, including right here at home (hey aren't we fighting them over there so... oh never mind), that makes every single one of us "noncombatants swept up in the hostilities."  That means that no American has a reasonable expectation of privacy anymore, at least until the end of the conflict.  Which end will be at the very earliest some far off day generations from now, according to the Commander-In-Chief.
Even if Congress had intended to restrict the president's ability to obtain intelligence in such circumstances, it could not have constitutionally done so. The Constitution designates the president as commander in chief, and Congress can no more direct his exercise of that authority than he can direct Congress in the execution of its constitutional duties.
This part is not even spin and misdirection any more, it is simply breathtakingly false.  Congress directs the President's authority all the time, including his command of the military, and has done so since the birth of the republic.  They are (supposedly) responsible for declarations of war and the raising of armies and the budget allocated to the military, among other things.  In addition to being false, it is still another red herring, as domestic surveillance is not part of war-fighting, and he is not C-in-C of the entire United States, just of the military.
As the FISA court itself noted in 2002, the president has "inherent constitutional authority to conduct warrantless foreign intelligence surveillance."
Once again he brings up the red herring of foreign intelligence surveillance to claim unlimited power to conduct foreign and domestic surveillance.  If the FISC had concluded that the power to conduct foreign surveillance without a warrant included the power to conduct domestic surveillance, they would have been stating that they had no reason to exist, and would have promptly disbanded.
In this instance, in addition to relying on his own inherent constitutional authority, the president can also draw upon the specific Congressional authorization "to use all necessary and appropriate force" against those responsible for the Sept. 11 attacks...
Do these guys even understand the English language?  How do you get from "necessary and appropriate force" against Al Qaeda to mean spying on Quakers and gay rights activists, or whoever was the target of the wiretaps they didn't think they could get FISC approval for?

Rivkin and Casey's conclusions? They have three.
Overall, this surveillance program is fully within the president's legal authority, is limited in scope (involving communications to or from overseas related to the war against Al Qaeda), and is subject to stringent presidential review.
The first is flatly contradicted by the courts and legal experts, the second is only an assertion completely unsupported by known facts, and the third is actually part of the problem.  FISA was set up specifically as a check and balance on the Executive Branch's actions in this matter.  While the special court has admittedly not done much to thwart surveillance, the mere fact that the Executive has to go before a court encourages them to limit their requests and marshal their arguments to justify their actions.  When they blow the process off they are trying to subvert that check, which is contrary to the whole American concept of separate powers.  And if the White House is pushing this overreach, then "stringent oversight" by that same White House only makes the problem worse.

Overall, this opinion piece is nothing more than crap from start to finish.  Just last week the New York Times was lamenting how the scientific world was suffering from a decline in standards including serious lapses in peer review and scientific methodology.  Is it too much to ask the Gray Lady to have some standards herself?  Rejecting pieces that flagrantly violate the rules of debate and discourse would seem to be a good start.


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