We are making some progress trying to obtain access to members of the Senate Judiciary Committee in order to convey the questions we want asked and how we want them to be asked. Hopefully, I'll have more updates on this in the next day or so, but it's possible that we may need some blogospheric encouragement of certain Senators in order to accomplish this.
I really think the media is starting to smell some blood here. Every day, particularly in The Washington Post, there is a new component of the story which, by itself, independently adds to the scandal. The Gonzales questioning on February 6 is not the culmination but only the starting point for the investigation into this whole affair. It is definitely time, as I posted earlier today, for the media to pay some more attention to the deceit/falsehood component of this scandal.
A few items to note about the feedback I received from the questions and about the hearings generally:
(1) The April 20, 2004 statement from the President during his speech in Buffalo (h/t Anonymous Liberal via e-mail) ought to be used over and over. His assurance there that the Government always eavesdrops only with court orders is unambiguously false and contains no wiggle room. It is a case of deliberate deceit as he campaigned for re-election and for renewal of the Patriot Act, and regardless of one's views on the merits of warrantless eavesdropping, Americans have a rather deeply ingrained sense that it is wrong for the President to outright lie to the public about an important matter such as this.
The text of that speech is posted on the White House's website, but if anyone knows how or where to obtain a copy of the videotape, please leave a comment or e-mail me. (UPDATE: The video from that clip is here; I know this got some play when the scandal first began but it would likely do a lot more good now).
(2) One of the principal points made in the comments responding to my draft list of questions is that it's important not to have the questioning of Gonzales be overly legalistic or complex. I agree, but want to make a couple of points about this.
It is inevitable that the focus of this part of the hearings will be primarily legal. The witness is the Attorney General and he is there to discuss the Administration's legal theories as to why it had the right to eavesdrop outside of FISA. Many of you formulated questions about the operational aspects of the program, but those are going to be investigated by the Intelligence Committee with different witnesses. The focus of the questioning on Monday will necessarily be legal.
Moreover, there is a difference between legal discussions and legalistic ones. The crux of this scandal is the legal theories which the Administration has embraced, and if approached the right way, they need not bore everyone to death. To the contrary, the central question -- whether the President has the right to act in violation of the law and to claim that neither Congress nor the courts can limit his power -- is one that is quite dramatic and resonates with Americans, who confronted identical questions with Watergate and Iran-Contra.
I purposely did not devote any questions to esoteric and boring legalisms which are more appropriately resolved in legal briefs rather than in televised hearings -- such as whether the AUMF should be read to impliedly exempt the Administration from FISA. Those type of questions, in addition to being boring and impenetrable to large segments of the public (and to even larger segments of mainstream journalism), are also really irrelevant, because the Administration claims that it has unlimited power regardless of the AUMF to eavesdrop on Americans without warrants -- and to do anything else relating to the terrorism threat. That is the danger posed by the Administration and that is something which the public can understand.
That's why, in my view, the principal objective with these hearings is to force that theory out into the open by compelling Gonzales to acknowledge clearly that: (a) the Administration believes it has the unlimited power to engage in any activities relating to the terrorism threat with no possible checks or limitations from Congress or the courts; (b) this power includes engaging in activities even when Congress makes engaging in those activities a criminal offense, as it did with warrantless eavesdropping; and (c) the theories of power espoused by the Administration would enable it to engage in a whole parade of extreme behaviors -- as applied to U.S. citizens and within the U.S. -- which will illustrate just how radical and threatening this Administration has become.
But Gonzales isn't going to just waltz into the hearing and start acknowledging that. It's going to take work to compel him to admit these things -- which means methodically examining the basis for his legal theories, forcing him to articulate the legal principles underlying the Administration's views with regard to specific matters, and then extending those principles to all sorts of other scenarios. Ultimately, there is no coherent way for Gonzales to argue that the Administration is free to eavesdrop on American citizens without any interference from Congress without articulating a principle and a theory that places broad, unchecked Presidential power in George Bush far beyond the realm of eavesdropping. Making that clear ought to be, in my view, the paramount goal of this examination.
That way, this scandal will forever be about whether George Bush has the monarchic power he claims -- to violate the laws of Congress and to act with no checks from Congress or the courts. Those are legal issues but they need to be confusing or boring.
(3) John Aravosis has a post analyzing the latest NSA scandal poll, from NBC News/Wall St. Journal, which was treated by the media as though it contained relatively good news for Bush but which actually reveals just how potentially destructive this scandal could be. Here are two significant questions from this poll (.pdf):
Do you think that the Bush administration should conduct wiretaps of American citizens who are suspected of having ties to terrorists without a court order, or do you think that the Bush administration should be required to get a court order before conducting these wiretaps?
Should be able to wiretap without court order ............... 41
Should be required to get a court order before wiretapping .. 53
Depends (VOL).......................................................... 4
Not sure............................................................... 2
How concerned are you that the Bush administration's use of these kinds of wiretaps could be misused to violate people's privacy--extremely concerned, quite concerned, not really concerned, or not concerned at all?
Extremely concerned ........................... 31
Quite concerned ................................... 25
Not really concerned............................ 22
Not concerned at all............................. 21
Not sure................................................ 1
And, for those fearful Democrats on the Committee and beyond, Carpetbagger points out that the same poll reflects that a very sizable majority (58%-34%) wants the Democrats in Congress to ensure that Republicans and Bush "do not go too far in pushing their agenda" rather than "work in a bipartisan way with Republicans to help pass President Bush's legislative priorities so that we do not have gridlock."
Those are some rather impressive numbers. A solid majority believes that warrants ought to be required even if the eavesdropping is only on those "suspected of having ties to terrorists." And 56% are either extremely concerned or quite concerned about the potential for abuse.
And, most significantly, none of these questions ask whether the public believes that the President has the right to engage in warrantless eavesdropping even where Congress passed a law specifically stating that it is a criminal offense to eavesdrop without judicial warrants. My guess is that a much, much higher percentage of people would disapprove if they knew of that fact and were asked about it.
Here's something I emailed to Andrew Sullivan about Bush's statements, which are only "unambiguously" false if you assume that he isn't hiding anything or breaking the law:
ReplyDeleteThere is a great collection of quotes from Bush on how wiretapping hasn't changed: http://www.brendan-nyhan.com/blog/2005/12/bush_on_wiretap.html
At first, I thought that all of the claims Bush made are technically true, just misleading. For example, the one where he says the PATRIOT Act doesn't authorize wiretapping without a court order is true, because it doesn't cover illegal programs. Similarly, if you read between the lines, you'll notice that several of Bush's statements only apply "any time you HEAR the United States government talking about wiretap." In other words, it doesn't apply to the cases you don't hear about because they're hidden. Also, Bush didn't lie when he said that "law enforcement" wouldn't wiretap, because I don't think NSA is technically law enforcement. I was stumped at first when someone pointed out that Bush said that "nothing has changed," because any observer not named Scott McClellan would think that the current wiretapping is a change. BUT, the full context is: "Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so." In other words, his statements aren't as "rhetorically unequivocal and broad" as they look at first glance. He never said he wouldn't wiretap without a court order. He only said he won't use wiretaps unless one or more of the following conditions are met: 1) he has a court order, 2) it's kept secret, 3) it's done outside the law enforcement apparatus, or 4) he just totally ignores the law.
Dave
Of course, this doesn't change that he's manipulative, but it might be enough to get him out of perjury charges.
Glenn, from the last thread, you commented:
ReplyDelete"It's also important to remember that there is still a political component to all of this. It's not just legal.
Richard Nixon began Watergate as a wildly popular President. It took 2 1/2 years to whittle his popularity down to 25% and no Supreme Court decision finding him guilty was necessary in order to force him from office (although court decisions along the way helped)."
You forget that there was a majority Dem Senate in that case,led in it efforts by the inestimable Sam Ervin.
And how have the thugs covered their bases on that score?
Why, black box voting, of course.
So, in refrence to your last question, why aren't they being asked about it?
ReplyDeleteWhy doesn't the efffin press do it's job?
The last post Glenn was truly remarkable. If there is a turning point it will be because of patriots like you.
Thank you.
Glenn stated,
ReplyDeletebecause the Administration claims that it has unlimited power regardless of the AUMF to eavesdrop on Americans without warrants -- and to do anything else relating to the terrorism threat. That is the danger posed by the Administration and that is something which the public can understand.
Wow! Glenn I am really surprised that you think the Administration position is
"REGARDLESS of the AUMF."
I really think you are wrong here.
Gonzalez has said repeatedly that the FISA law is unconstitutional in relation to the Presidents Article II powers expressly given by the AUMF - which is equvilent to being at WAR!
Hence, the talk about the relevance of Ex parte Milligan (1866)
“It's also important to remember that there is still a political component to all of this. It's not just legal.”
ReplyDeleteI am still trying to figure out [seriously] the purpose of Mr. Greenwald’s statement. An analogous statement might be saying the following about a Presidential election:: “It's also important to remember that there is still a political component to all of this. It's not just following the voter registration and Precinct Practices rules.” Was the dullest-witted reader unaware that this is all [well, 99%] about the political component? The magic of the “legal” part is that it just may allow the Democrats to finally “get” Bush! I guess Mr. Greenwald was being ironic or sarcastic and I just missed it. Sometimes I am not the sharpest knife in the drawer.
Notherbob said: "Sometimes I am not the sharpest knife in the drawer."
ReplyDeleteBoy, you can say that again...
I e-mailed the links from teh original post to Sn Leahy & then called his office and told them to pass it along. They also had not heard about Feingold's little rhetorical question to Abu Al. Why not come out and say hes' a lying sack of shit and be done with it?
ReplyDeleteOh my. I just got it. “All of this” is the key. “This” is the process of getting Bush. Of course. Getting Bush is not just legal, there are purely political obstacles to overcome., such as the Republican majorities. Thank you Sunny. I was thinking that “this” was the issue of a president’s powers. Duh.
ReplyDeleteGonzalez has said repeatedly that the FISA law is unconstitutional in relation to the Presidents Article II powers expressly given by the AUMF - which is equvilent to being at WAR!
ReplyDeleteYou're mistaken. The Administration's position is as follows: (1) the AUMF provides an exemption to FISA (i.e., statutory authority to eavesdrop without complying with FISA); and (2) in the alternative, if FISA is interpreted to restrict the President's eavesdropping powers (because the AUMF does not constitute an exemption), then FISA is unconstitutional, because the President has the power under the Constitution to engage in eavesdropping in order defend the nation and no Congressional statute can stand in his way.
That theory does not depend upon the AUMF or anything else. In fact, their whole point is: it does not matter what Congress does or doesn't do, becasue the President has the power and the obligation to defend the country and Congress has no power to limit or restrict him in doing so. That's why the AUMF doesn't matter. Their position is that Bush has the power to violate FISA with or without the AUMF. That is very clear.
They also had not heard about Feingold's little rhetorical question to Abu Al.
ReplyDeleteGiven that: (a) it was reported rather prominently in the Wash Post this morning; (b) it's been all over the blogosphere for weeks; and (c) they were at the exact hearing where Gonzales said this (since Leahy is the ranking member of that Committee), it's rather bewildering and more than a little scary that they aren't even aware of Gonzales' false statements and broken commitment to Feingold.
That doesn't exactly inspire confidence in their preparations for Monday's hearing.
But it is said that the jurisdiction is complete under the "laws and usages of war."
ReplyDeleteIt can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances; and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power; and to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise. One of the plainest constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior...
It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that in a time of war the commander of an armed force (if in his opinion the exigencies of the country demand it, and of which he is to judge), has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will; and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States.
If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules.
Sorry Glenn,
The AG will make clear in the coming days that AUMF is/was the impetus for all of Yoo's mischief -
and will be the cornerstone of the impending Supreme Court battle over the FISA by-pass scandal!
Dude,
ReplyDelete"The President's authority to approve these NSA activities is confrimed & supplemented by ...
AUMF!!!!!!!!"
Sincerly Alberto R. Gonzales @
http://epic.org/privacy/terrorism/fisa/doj11906ltr.pdf
Glenn:
ReplyDeleteYou're mistaken. The Administration's position is as follows: (1) the AUMF provides an exemption to FISA (i.e., statutory authority to eavesdrop without complying with FISA); and (2) in the alternative, if FISA is interpreted to restrict the President's eavesdropping powers (because the AUMF does not constitute an exemption), then FISA is unconstitutional, because the President has the power under the Constitution to engage in eavesdropping in order defend the nation and no Congressional statute can stand in his way.
Me:
OK, so if one argues that FISA is not the prevailing law in the case of this particular moment in time (said moment defined as "after the president was given the authority to prosecute the war on terror" and of course open-ended), then the argument (I'm asking here) is: what is the president allowed to do in the absence of a clear statute from the congress?
and this brings us to gorelick's argument re FISA in 94, no? she said physical searches, which were not proscribed by FISA specifically, were therefore, at the discretion of the president, OK WITHOUT a warrant. FISA was then amended, but that argument has not been tested as far as i know. surely that same argument could be "FISA doesn't cover wartime powers of the CIC, therefore per Gorelick and Clinton the president has rights that are broad rather than narrow. we interpret gorelick's argument to mean that CIC CAN do what he must, sans warrant, because FISA doesn't govern."
right? isn't that the argument? (Setting aside its merits--to be clear, i think the whole thing stinks, i hate kings, we are a nation of laws not men, and gorelick was wrong then).
yes steve,
ReplyDeleteperpetually war - won by halliburton
sorry, glenn, i didn't mean "you're mistaken" because frankly i have no effin idea. i am asking for your expertise. forgive.
ReplyDeletehttp://www.usconstitution.net/consttop_mlaw.html
ReplyDeleteThe Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.
ReplyDeleteFrom:
ON NSA SPYING: A LETTER TO CONGRESS
By Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B. Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S. Sessions, William Van Alstyne
George W. Bush
(click for larger image)
Dear Members of Congress:
We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush administration's National Security Agency domestic spying program
http://www.nybooks.com/articles/18650
dave, I don't hold GWBush to a careful parsing of his statements; that way lies madness, or at least a broken parser. :-) Careful language is not his style.
ReplyDeleteWe should be holding the rest of the administration to the letter of their statements, though; they tend to use very well-crafted (and often (apparently) intentionally misleading) talking points.
Glenn, if it hasn't been said before, these questions are also very good material for the washington press corps. It's been frustrating watching the press unintentionally lob softballs (about illegal surveillance) at officials.
Thank you for what you are doing, Glenn. As someone with a mild libertarian bent, stuck in a redder than red state, I appreciate you standing up for the principles that make our country great.
ReplyDeleteYour work is extremely valuable to all of us, so again, thanks.
-AK Pete
steve
ReplyDeletei'm not a lawyer. you are. so i will concede the likelihood that you are right. but i feel like the big question is still begged. in the venn diagram of this, where "undefined areas" is the big circle and "statuatory areas" is a shaded circle inside that, gorelick was saying, "CIC can do what he wants to protect the country when outside "s.a." but still within the overall law, e.g. the constitution. so if gorelick is right, and if gonzales is right that AUMF trumped FISA, and that therefore we were in "Unclaimed Territory" then his argument is not unreasonable. hateful, but not unreasonable. i think. my head hurts. back to making movies. this stuff is hard.
One thing for me is becoming clear. We have an even greater reason to declare the war over. No war, and Bush has no power. Declare the mission done (as he did on that ship), rephrase Iraq as a "police action" with humanitarian functions and cut the rug out from under Bush. All while he and his crew are being run through the investigations to there proper conclusions. The process has been started with the questioning of perspective of 911.
ReplyDeleteWe just need a change in congress to do it.
bless you
ReplyDeleteShould "Those are legal issues but they need to be confusing or boring" have a "do not" before "need"?
ReplyDeleteSeems to me there is a house of cards here and it was visible in the crafting at the time congress was unable to obtain the Bybee memo ancillary work product. The link is evidence admissibility in subsequent matter. This is why the SG submitted a 45 page brief last week to follow the intention of congress argument concerning Graham's amendment before the holiday respite. All these issues are tied together. I was aghast at the liberals' support for one alternative to Graham's habeas amendment, Bingaman's, seeing it as nearly as adverse. But the court stripping matters are connected, however obliquely to the Yoo theory to which AG subscribes. My understanding, as well, is Alito figures in, having been an early crafter of the blue pencilling and unitary executive paradigms. I leave it to you to wrench these impressions of mine into debater language suitable for Spector's hearings. I take it congress is riled, because of the affront contained within the long lasting circumvention of the FISC process, AUMF notwithstanding. When congress completes the recrafting of FISA and if it ever faces Patriot as it claimed it was going to do by the early February expiration date for some clauses, the administration will have a clearer deployment to view in its attempt to counter all the argumentation currently being directed its way. Of course, the reason for the rule of law is to temper the ineluctable temptations represented by all the data mined in the raw; and, I think, in the latter regard, the administration, in the person of AG first, will clothe their objections in those terms: the efficacy of the result and the general sensibility in the land that data is going to be mined.
ReplyDeleteThere is a lot of test argument ongoing in the DC circuit. Luttig certainly gave an impressive pushback, for one consistently aligned with the administration prior. And the Supreme Court itself is evaluating one appeal very soon now. That is, if we are to accept the view that there is linkage among the cluster of issues: habeas, reliability of evidence from detainees, and the unfettered authority of the executive, including its threefold increase use of signing memoranda as a kind of bypass maneuver to instruct lower courts not to decide these cases, rather to push them to higher courts.
I do not know the privacy suits are the best place to begin to create the whole fabric but it is worth a try. The work in this regard at this website helps.
At his own hearing Alito applied the word momentous to a question approaching this topic, while qualifying his reply with a reluctance to talk about a matter likely soon to require his hearing argument from the Supreme Court bench. As you are aware, most certainly, there are a few law websites exploring along the lines you are developing. Somehow the plan is to emerge at the other side of the review with an intact and vigorous three branches of government. Right now the Senate is holding the Patriot bluechip, at least as openers.
Great comment, Dave. It brought back memories of Bill Clinton's testimony....
ReplyDeleteI think it is great to see this "you need a court order" clip of GWB, but I think it is more effective if you start quoting some of the past comments made by Republican leaders about Clinton's "Presidental Lying" with it. Especially made by members now serving on the Senate Judicial Committee. It'd be interesting to hear what they all said a-way back then.
Blowjobs or wiretaps:
is it still
a lie to
say I ain't
when I am ?
WARNING: THIS COMMENT HAS ORIGINATED FROM A FOREIGN COUNTRY AND YOU MAY OR MAY NOT BE UNDER SURVEILLANCE FOR READING IT
I've been wondering what the administration's positions re FISA and the McCain Amendment mean strictly in terms of the mechanics of law. There's the whole question of the grounds on which the President asserts power, and the extent of those powers, but it seems to me there's another question, which is: what exactly happens, in a legal sense, when the President asserts one of these powers? In a nation under the rule of law, if the President can conduct actions which effectively contravene a law, what is the effect on the statute in question? Is the relevant clause of a given law rendered void? Is it suspended for the whatever the President determines to be duration of the emergency?
ReplyDeleteMy question here is whether, in order for the rule of law to remain intact, the President's order to contravene a certain statute needs to be considered as effectively an alteration to that language of that statute, and if such is the case, whether the President's assertion that such powers are available is vulnerable to the arguments used against the line-item veto in Clinton v City of New York, 524 U.S. 417 (1998)?
I have no formal knowledge of law, so my thinking on this may be entirely off base. I hope I've included enough here to at least make the question clear.
If the President's abrogation of FISA (as an example) can indeed be construed as a change to FISA, then the most likely reason I can think of that my argument doesn't work is that Clinton concerns a power granted to the President by statute, and the administration is asserting that the power they claim is derived, at leat in part directly from the Constitution. However, it might be pointed out that the AUMF can not grant any powers similar enough to the Line-Item Veto that they are already covered by Clinton.
CRYSTALONE.NET BROADCASTING PROGRESSIVE TALK:
ReplyDeletehttp://relay2.crystalone.net:8006/listen.pls
That doesn't exactly inspire confidence in their preparations for Monday's hearing.
ReplyDeleteThis is why you are performing a great service to our country, Glenn. /asskiss
Maybe this will be a chance for Feingold to shine...someone has to eviscerate Gonzalez (they all should, of course), and it was Feingold's question that caught him.
Truly, I hope the whole damn committee is paying attention to you. It is absolutely essential that we avoid another debacle like the Alito hearings.
The AUMF is against the perpetrators of 9/11 - the mysterous group that will never go away.
ReplyDeleteCongress making OIF a "police action" does not effect the AUMF against what Americans really fear-WMD's!
The legal argument that AG Gonzalez will be making at the future Supreme Court hearings about the constitutionality of the FISA laws to restrict the Executive powers during a time of war (AUMF) have already been argued by
John Hanna - Esquire in Ex parte Milligan US 71 2 (1866).
It seems to me that us liberals constantly lose the battle because not enough of show up at the right battlefield.
Glenn:
ReplyDeleteGiven the (reported) cooperation of the telcos and isps in facilitating (reported) wholesale NSA access to routers and switches, and:
Given that such access was absent any court orders,
how were the telcos/isps compelled to comply?
Glen -- great work on the legal questions.
ReplyDeleteThere may also be some value in asking policy questions that the public can relate to more easily than the legal questions (and I agree with you that these are important). In particular, aside from whether the President has the authority to ignore FISA, there is the question of whether we should trust him to act without the judicial oversight mandated by FISA. The fundamental political issue is trust.
In essence, the President and Gonzalez are saying,, "trust us," but on what basis should the American people trust this president and this attorney general? These are the guys who thought (probably still think)that torture is okay, the Geneva conventions aren't relevant, and that kidnapping and rendition of US citizens and holding them indefinitely without counsel or trial is legal. A set of question about trust, reminding them that they got rid of the attorneys of DoJ like Comey (see the Newsweek article) who had concerns about the legality of the claims now being made, seems entirely relevant. Why should we trust these people, and isn't it the absence of trust that is the rationale for requiring court oversight and meeting warrant requirements in the first place?
John Chandley
(scarecrow)
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