You need a machete these days to whack through the thicket of misinformation, disinformation, spin, propaganda and straight-out lying that daily envelopes the Ukraine crisis like kudzu on an Alabama telephone pole. But an outline of an outcome is now faintly discernible.Here is my early call: We witness an American intervention in the process of failing, and the adventure’s only yields will be much pointless suffering among Ukrainians and life for years to come in the smothering embrace of a justifiably suspicious Russian bear.Nice going, Victoria Nuland, you of the famous “F the E.U. tape,” and your sidekick, Geoffrey Pyatt, ambassador in Kiev. Nice going, Secretary of State Kerry. For this caper, Nuland and Pyatt should be reassigned to post offices in the bleak reaches of Kansas, Khrushchev-style. Kerry is too big to fail, I suppose, but at least we now know more about what caliber of subterfuge lies behind all those plane trips, one mess following another in his jet wash.On the ground, Vladimir Putin continues to extend the Russian presence in Crimea, and we await signs as to whether he will go further into Ukraine. This is very regrettable. Viewed as cause-and-effect, however, it is first a measure of how miscalculated the American intervention plot was from the first.
There are four grounds upon which we find that the telephone records program fails to comply with Section 215. First, the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection. Second, because the records are collected in bulk - potentially encompassing all telephone calling records across the nation - they cannot be regarded as "relevant" to any FBI investigation as required by the statute without redefining the word relevant in a manner that is circular, unlimited in scope, and out of step with the case law from analogous legal contexts involving the production of records. Third, the program operates by putting telephone companies under an obligation to furnish new calling records on a daily basis as they are generated (instead of turning over records already in their possession) - an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole. Fourth, the statute permits only the FBI to obtain items for use in its investigations; it does not authorize the NSA to collect anything. In addition, we conclude that the program violates the Electronic Communications Privacy Act. That statute prohibits telephone companies from sharing customer records with the government except in response to specific enumerated circumstances, which do not include Section 215 orders. Finally, we do not agree that the program can be considered statutorily authorized because Congress twice delayed the expiration of Section 215 during the operation of the program without amending the statute. The "reenactment doctrine," under which Congress is presumed to have adopted settled administrative or judicial interpretations of a statute, does not trump the plain meaning of a law, and cannot save an administrative or judicial interpretation that contradicts the statute itself. Moreover, the circumstances presented here differ in pivotal ways from any in which the reenact