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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.

Monday, February 20, 2006

The dying scandal that keeps growing

Ever since the NSA scandal began, Bush followers, led by Karl Rove, and even some frightened Democrats, have loudly insisted that this scandal is actually beneficial for Republicans, because they can use it to depict Democrats as weak on national security. Democrats want to hang up when Osama calls, while Bush is being aggressive in protecting our children from being blown up. As a result, they claimed, Republicans want this scandal to last as long as possible because it will only benefit Republicans politically and damage Democrats by highlighting their vulnerabilities.

While spouting that bravado, the Administration's actions reveal that they fear this scandal and want more than anything for it to disappear. At every turn, they have tried to prevent a meaningful investigation into the legality of their actions. If the NSA scandal is really the political weapon which the GOP can use to bash Democrats as being weak on national security, wouldn't the White House be doing the opposite - that is, encouraging every hearing and investigation possible?

The supplemental claim we hear most from the Administration is that this scandal is dying. It will all fade away with some nice legislation designed to render legal the President's four years of deliberate law-breaking. But the NSA scandal continues to dominate the news. Every day brings more conflicts, more disputes, more internecine fighting among Republicans. Indeed, Republicans are all fighting with each other on virtually every aspect of this scandal - when have we ever seen that?

Just review media reports on this scandal over the last 24 hours alone. Does this sound like an Administration that welcomes this scandal as something that is politically beneficial? Does this sound like a scandal that is dying:

From The Washington Post, today, reporting on the White House's frenzied, desperate efforts to quash Congressional investigations into its conduct:

At two key moments in recent days, White House officials contacted congressional leaders just ahead of intelligence committee meetings that could have stirred demands for a deeper review of the administration's warrantless-surveillance program, according to House and Senate sources.

In both cases, the administration was spared the outcome it most feared, and it won praise in some circles for showing more openness to congressional oversight.

But the actions have angered some lawmakers who think the administration's purported concessions mean little. Some Republicans said that the White House came closer to suffering a big setback than is widely known, and that President Bush must be more forthcoming about the eavesdropping program to retain Congress's good will.

And The New York Times, this morning, reports that the White House was groping around, offering any concessions that were demanded, in order to avoid the very investigation which Karl Rove and some inane, frightened Democrats insist would be so good for Republicans:

But two days before Mr. Bush spoke, the White House opened the door to talks in the hope of avoiding a full-scale Congressional investigation. According to lawmakers involved in the discussions, a number of senior officials, including Harriet E. Miers, the White House counsel, and Andrew H. Card Jr., the chief of staff, began contacting members of the Senate to determine what it would take to derail the investigation.

And, as the Post article details, the Republicans on the Senate Intelligence Committee who were depicted as having fallen passively into line apparently don't appreciate those reports and are eager to demonstrate otherwise:

Snowe earlier had expressed concerns about the program's legality and civil liberties safeguards, but Card was adamant about restricting congressional oversight and control, said the sources, who spoke on the condition of anonymity, citing office policies. Snowe seemed taken aback by Card's intransigence, and the call amounted to "a net step backward" for the White House, said a source outside Snowe's office.

Snowe contacted fellow committee Republican Chuck Hagel (Neb.), who also had voiced concerns about the program. They arranged a three-way phone conversation with Chairman Pat Roberts (R-Kan.).

Until then, Roberts apparently thought he had the votes to defeat Rockefeller's motion in the committee, which Republicans control nine to seven, the sources said. But Snowe and Hagel told the chairman that if he called up the motion, they would support it, assuring its passage, the sources said. . . . .

Hagel and Snowe declined interview requests after the meeting, but sources close to them say they bridle at suggestions that they buckled under administration heat. The White House must engage "in good-faith negotiations" with Congress, Snowe said in a statement.

Over the weekend, both Specter and even Pat Roberts made clear that they would not accept the only solution which the White House will even consider -- namely, the absurdly deferential DeWine proposal to exempt the NSA program from the requirements of FISA. Now, Linsdey Graham, too, has made unequivocally clear that he will insist upon judicial oversight for any future eavesdropping, something the White House cannot and will not ever agree to:

The latest Republican to join the growing chorus of those seeking oversight is Senator Lindsey Graham of South Carolina.

In an interview on "Fox News Sunday," Mr. Graham, a former military prosecutor whose opinion on national security commands respect in the Senate, said he believed there was now a "bipartisan consensus" to have broader Congressional and judicial review of the program.

"I do believe we can provide oversight in a meaningful way without compromising the program," he said, "and I am adamant that the courts have some role when it comes to warrants. If you're going to follow an American citizen around for an extended period of time believing they're collaborating with the enemy, at some point in time, you need to get some judicial review, because mistakes can be made."

Discussions like this are, of course, somewhat surreal, since we already have a law requiring judicial review for eavesdropping on Americans. That happens to be the law which the Administration broke continuously and deliberately. Why Graham or anyone else thinks it would be productive to pass another law requiring judicial approval when we already have that law in place is a bit of a mystery. But if the likes of Specter, Roberts and Graham are insisting on judicial oversight for eavesdropping -- and the White House is refusing -- there is clearly a serious problem even among Republicans. From the Times:

Four other leading Senate Republicans, including the heads of three committees — Judiciary, Homeland Security and Intelligence — have said they would prefer some degree of judicial oversight. Their positions, if they hold, could make the negotiations more difficult.

As I noted last week, Roberts blocked a vote on whether to have hearings in the Senate Intelligence Committee for only one reason - because the motion by Sen. Rockefeller to hold such hearings would have passed, with means it had at least some Republican support. As I also noted, and as the Times reports today, Roberts, by preventing an up-or-down vote, succeeded in blocking the hearings only temporarily:

The Senate Intelligence Committee has given the administration two weeks to negotiate. If the White House does not demonstrate a good-faith effort, members say, the Democratic proposal for a full-scale inquiry will be back on the table at the panel's next meeting on March 7.

Meanwhile, Specter's interesting legislative proposal -- to require a ruling by the FISA court on the legality of the Administration's actions -- continues to be pushed by him. Again, from the Times:

Senator Arlen Specter, Republican of Pennsylvania, has drafted legislation that would require the FISA court to review the constitutionality of the eavesdropping program. Mr. Specter says he is sympathetic to the administration's concern that briefing lawmakers could lead to leaks, which is why he wants to turn the matter over to the courts.

But he insists that the eavesdropping must be subjected to a rigorous constitutional review and has said that anything short of that would be "window dressing."

I continue to believe that the most potent fuel for this fire is for the Congress to continue to be shown the great contempt with which they have been treated by the Administration over the last four years on these issues. Congress thought it had a law in place regulating eavesdropping on Americans only for the Administration to have decided that the silly little Congress has no role to play in national security and surely can't restrict anything the President decides to do. Worse, they repeatedly misled the Congress into thinking that their cute little laws mattered, and didn't even bother to tell them that the Administration had decided that it had the power to do whatever the President decided, even if that meant engaging in actions which Congress had criminalized.

And now, they are treating the Congress like irrelevant, impotent symbols, instructing them that they are entitled to no information about the eavesdropping program, that they have no power to regulate eavesdropping in the future, and that they are not to investigate any of these matters.

At some point, even the most obsequious members of Congress are going to be moved by their own personal dignity into taking a real stand. Speaking of which, the Pat Roberts-loving Wichita Eagle editorialized yesterday as follows:


Many Kansans, including members of The Eagle editorial board, have long admired Sen. Pat Roberts for his plainspokenness and reputation for fair brokering of issues.

So it's troubling that Roberts, chairman of the Senate Intelligence Committee, is fast gaining the reputation in Washington, D.C., as a reliable partisan apologist for the Bush administration on intelligence and security controversies.

We hope that's not true. But Roberts' credibility is on the line. . . .

This week, Roberts sidetracked a Senate Intelligence Committee inquiry into the possibly illegal National Security Agency wiretap program, saying the White House had agreed to brief lawmakers more regularly and to work with him on a behind-the-scenes "fix" of the Foreign Intelligence Surveillance Act.

That prompted a scathing New York Times editorial Friday headlined "Doing the President's Dirty Work," which opined: "Is there any aspect of President Bush's miserable record on intelligence that Senator Pat Roberts, chairman of the Senate Intelligence Committee, is not willing to excuse and help to cover up?" . . .

But whether the law needs a "fix" is far from certain. Roberts' deal could thwart Congress' duty to learn more about and evaluate this program, while securing from the White House only a vague pledge to talk about fixing the law down the road. . . .

What's bothering many, though, is that Roberts seems prepared to write the Bush team a series of blank checks to conduct the war on terror, even to the point of ignoring policy mistakes and possible violations of law.

That's not oversight -- it's looking the other way.


There sure is a lot of public infighting in the previously dissent-free Republican family over this scandal, and that infighting only seems to be getting worse. And Pat Roberts can't appreciate reading in his hometown paper that he is an integrity-free, blind servant for the Administration, there to do its dirty work and help Congress abdicate its oversight responsibility. Clearly, Olympia Snowe and Chuck Hagel don't seem to appreciate being depicted as manipulated, controlled White House stooges either. It's human nature to want to demonstrate one's independence.

There is no way for the White House to prevent a full-scale airing of these issues. The more they try, the more they alienate their own allies and the worse it becomes.

What is missing from this whole equation is any real effort on the part of Democrats to push all of this forward. Imagine where things would be -- how bad things would be for the White House -- if Democrats hadn't decided early on that this is an issue they should run away and hide from, rather than pursue with relentless aggression. Anyone who speaks with even the most liberal advocacy groups, supposedly left-wing pundits, Democratics consultants, etc. will tell you that they all still think this is a scandal which Democrats should just let go. That, of course, is the type of fear-driven, principle-less advice that has led Democrats to three straight defeats.

Clearly, the Administration knows better, and Congressional Republicans do not seem nearly as inclined to give the White House a free pass on breaking the law. Hopefully, Democrats will start to recognize the highly destructive, potentially fatal weapon which has fallen into their lap.

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