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.

Sunday, February 05, 2006

The hearings begin

I will be live-blogging the first day of the NSA hearings from the Senate Judiciary Committee hearing room (most likely) all day tomorrow. The hearings begin at 9:30 a.m.

And a reminder - I will be on C-SPAN's Washington Journal tomorrow morning from 7:45-8:30 a.m EST debating the NSA scandal with University of Virgnia Professor Robert Turner, about whom more can be read here. I really appreciate the comments and the e-mail suggestions for this debate. Depending on how the discussion goes, I intend to use a lot of them.

This clip of George Bush should be talked about all week -- why, if the Administration had all the legal authority in the world to eavesdrop without warrants and outside of FISA did it repeatedly make false statements to the public and to the Congress assuring us all that it was eavesdropping only in accordance with FISA? Parties make false statements in order to conceal their behavior only when their behavior is improper and wrong, not when it is justified and legal. And deliberately false statements of that sort from our government officials happen to be unacceptable and wrong, and really constitute a scandal unto itself.

At any point, they could have said -- without disclosing any operational details of any kind -- that they have authority under the AUMF or Article II to eavesdrop outside of FISA. Not only did they fail to do so (even as Congress was debating amendments to FISA based on the (false) assumption that the Administration was complying with it), they affirmatively misled Congress and the public by repeatedly proclaiming that they were complying with the law.

As I've said before, governmental law-breaking scandals are usually comprised of two components -- the law-breaking itself, followed by the false statements to conceal the wrongdoing. The law-breaking has received substantial attention thus far, but the deceitful cover-up has not. That ought to change tomorrow.

I will have long, continuously updated posts tomorrow as part of the live-blogging, so please feel free to leave your thoughts in comments as the hearings progress, where we can maintain an ongoing discussion.

UPDATE: After I wrote what I wrote above regarding the Bush clip, I see that Tim Russert asked Arlen Specter about this today on Meet the Press:

MR. RUSSERT: As you well know, this program began shortly after September 11, 2001. The President, when he ran for re-election in 2004 was up in the great city of Buffalo, New York, on April 20. And this is exactly what he said. Let’s watch.

(Videotape, April 20, 2004)

President GEORGE W. BUSH: Now, by the way, anytime you hear the United States government talking about wire tap, it requires—a wire tap requires a court order. 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.

(End videotape)

MR. RUSSERT: Was that misleading?

Gee, was it misleading? Just because the President said that "anytime you hear the United States Government talking about a wire tap, it . . . requires a court order. Nothing has changed" -- even though the Government had been eavesdropping for years without a warrant when he said this? Here is what Specter said in response:

SEN. SPECTER: Well, it depends on what the President had in mind. I think it’s a fair question for the President. If the President was talking about what goes on domestically in the United States, I think it is accurate. If he had in mind the entire program, including what goes on when one of the callers or recipients is overseas, it’s incorrect.

Anyone with any hopes that Specter is going to act with integrity or objectivity at the hearings should go ahead and accept that that's a total delusion so that you're not disappointed. That is an absurd defense. The President clearly was not talking only "about what goes on domestically in the United States." To the contrary, he specifically said that the Government obtains a warrant "anytime you hear the United States Government talking about a wire tap."

The President said: "I always do X," and Specter, to defend him from charges of lying, is basically saying: "Maybe he meant that he sometimes does X." For Specter to defend the President this way conclusively reflects that Specter, as usual, will make some noises about being indepedent, get everyone's hopes up that he will exercise his own judgment, and then fall back into line slavishly behind the President.

I expect there to be some aggressive and effective questioning from Republican Senators Brownback and Graham, as well as Kennedy, Feingold, and Durbin. Anything else will (pleasantly) surprise me.

UPDATE II: ReddHedd examines some interesting quotes from those who are defending the President, including an excerpt from Newsweek which reports that Sen. Feinstein, in pre-hearing briefings, has been asking the central question -- if the President has the unchecked authority to order eavesdropping on Americans, what are the limits, if any, of these unchecked powers?


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