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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, February 04, 2006

Current thoughts on the NSA scandal

The meetings I had with various staff members of Senators on the Judiciary Committee were constructive and enlightening (for me at least). I'm not optimistic that the work we did here is going to have a significant effect on what transpires on Monday, but it's not realistic to think that someone is just going to show up in Washington and suddenly start dictating to Senators what questions they ought to ask and how they should ask them.

Having said that, the fact that we were able to obtain access to high-level staffers in the days before these hearings is an encouraging reflection of the growing recognition that the blogosphere is something they cannot ignore or simply use for their benefit, but instead is a substantive and genuine (and growing) force that needs to be recognized, respected and taken seriously. I think we need to look at this as a mid-range project, not something that will yield immediate, overnight results. We've had lots of successes in the past several weeks, with multiple episodes, in having a real impact on the establishment media and even what happens in DC. But it's going to be an incremental process.

There is a substantial misperception about what the blogosphere is. Most people who don't read blogs regularly (and that is still the case for the overwhelming majority of people, even in journalism and national politics) basically see the blogosphere as being one big online Rush Limbaugh Show -- nothing but uninformed, ignorant, irresponsible, angry populist ranting by the dumb, dirty masses. The more exposure people have to blogs and bloggers, the more that perception will breakdown, because the reality, as people in the blogosphere know, is the opposite -- the discussions, analysis and even reporting in the blogosphere is at a much higher and more substantive level than that which takes place in what they consider to be the "respectable media" venues.

Specifically as to the NSA issue, Monday is only the first day and Gonzales (who will be under oath) is only the first witness (Senate Democrats are essentially unanimous that additional witnesses -- perhaps Comey, Ashcroft, Yoo and others -- need to testify, and Gonzales will likely have to come back both because they won't be done questioning him and because additional documents will likely be released by the Justice Department which they are currently trying to withhold). We should be able to build on the access and contacts we created this time by obtaining even more influential access for the coming days of testimony (I say "we" not in the royal sense, but because the meetings I had were enabled by the work of numerous bloggers and inside-DC types who want to help the blogosphere gain more access and influence).

Regarding the hearings themselves, I have a lot of trepidation about what will happen on Monday, to be honest. Democrats are clearly scared of this issue. They believe that Republicans are going to accuse them of "wanting to give Al Qaeda our playbook" (a phrase several different people used independently) and that those tactics will work to obscure the real issues here. They seem -- at least to me -- to be more frightened than impassioned, more worried about how to avoid looking like Al Qaeda allies than how to question Gonzales in order to prove that the Administration here broke the law and that it is intolerable for the President to break the law.

They are both clearly right and clearly wrong about all of this. They are clearly right that Republicans are going to attempt this. It's already beginning with the full-fledged, coordinated exploitation of terrorism for political gain which Republicans have continuously relied upon since 9/11.

Here is the Vice President on right-wing talk radio making one of the most repugnant and dishonest statements I have heard in some time -- all for the purpose of smearing those who believe that it's wrong for the President to break the law (by, in essence, accusing them of treason) and intimidating anyone who may in the future consider exposing other illegality by the Administration:

With Congress preparing to plunge into a hearing focused exclusively on the warrantless wiretapping, Vice President Dick Cheney said exposing the effort has done ''enormous damage to our national security.'' The New York Times revealed the program's existence in December.

''It, obviously, reveals techniques and sources and methods that are important to try to protect,'' Cheney said. ''It gives information to our enemies about how we go about collecting intelligence against them. It also raises questions in the minds of other intelligence services about whether or not they can work with the United States intelligence service, with our CIA, for example, if we can't keep a secret.''

Cheney said he agreed with CIA Director Porter Goss, who told a Senate hearing on Thursday that such leaks are undercutting U.S. intelligence efforts. ''I thought Director Goss was rather restrained in his comments, but he was absolutely correct,'' said Cheney.

Cheney's remarks came in a radio interview with conservative talk show host Laura Ingraham.

The comments by Goss which Cheney said were "rather restrained" were these:

CIA Director Porter Goss told lawmakers this week that recent disclosures about sensitive programs were severely damaging, and he urged prosecutors to impanel a grand jury to determine ''who is leaking this information.'' The National Security Agency earlier asked the Justice Department to open a formal leaks investigation over press reports of its terrorism wiretaps.

So, to recap: right as the investigation is about to begin into the President's law-breaking, the Vice President goes on talk radio and accuses those responsible for disclosure of this law-breaking (including The New York Times) of causing ''enormous damage to our national security." The Director of the CIA then urges that those responsible for disclosing the President's illegal conduct be criminally prosecuted by the Justice Department (which is controlled by the President's slavishly loyal political appointees), and the Vice President says that, if anything, the CIA Director's comments were too restrained (should he have called for them to be summarily hung?).

This is thuggish behavior of the worst sort. Intimidating and threatening people who expose wrongdoing and illegality are the hallmarks of street gangs and military juntas. The idea that anything meaningful was disclosed when we learned that our Government is eavesdropping without judicial oversight and approval (rather than with it) has always been frivolous on its face. But the statement from Cheney that this disclosure caused ''enormous damage to our national security" is dishonest trash, transparently intended -- on the eve of the NSA hearings -- to stir up populist rage against anyone who blows the whistle on misconduct by the Administration and to intimidate other potential whistle-blowers with threats of criminal prosecution and treason accusations from the highest levels of our government.

Disturbingly, all of this has an effect, even -- perhaps especially -- on the Democrats in the Senate. They are not foaming at the mouth with anticipation for these hearings to be begin. They are approaching it with trepidation and concern about being depicted, yet again, as allies of Al Qaeda -- not just by the boundlessly dishonest and propagandizing Administration, but also by our "neutral" press which fails to convey the actual issues raised by this scandal, and which continues to propagate the false debate that this is about whether we should be eavesdropping on Al Qaeda.

Maybe we'll be pleasantly surprised on Monday and will see some aggressive and meaningful questioning from Senators from both parties who understand that one of their most central constitutional duties is to serve as a check on excesses by the Executive Branch. It was the Senate which was continuously deceived about eavesdropping by the Administration, humiliated into believing that the laws they passed were actually being obeyed rather than ignored, and now face a President who literally claims the right to take action without what he calls "interference" from the Congress. If this assault on the basic principles of our government isn't enough to spur them into meaningful action, their own basic dignity ought to be.

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