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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.

Friday, February 17, 2006

The Long Hard Slog

There are lots of people who appear to be morbidly depressed -- to the point of conceding defeat -- as a result of yesterday’s unilateral obstruction by the incomparable White House shill Sen. Pat Roberts of the long-planned and long-promised investigation into the operational aspects of the NSA program by the Senate Intelligence Committee. That defeatist reaction and the borderline-self-pitying sentiments which accompany it are, for literally countless reasons, completely unwarranted.

First, nobody ever thought that a just resolution of this scandal was dependent upon an investigation by the Senate Intelligence Committee, dominated, as it is, by the mewling, slavish and indescribably dishonest Pat Roberts. The notion that this scandal has come to an end all because Roberts blocked, for the moment, hearings that were to be held by that Committee is nonsensical. Thankfully, this scandal never depended upon the integrity of Pat Roberts, and hearings in front of that Committee were merely one of the many ways to compel a real investigation, but it was hardly the only or even primary way.

Moreover, the Committee did not vote against an investigation. Instead, Roberts merely invoked a procedural device as Chairman to prevent a vote, for now, from taking place. (Incidentally, what happened to the Republican mantra that procedural maneuvers ought not be used to block up-or-down votes? It seems that principle only applies to matters where they know they will prevail on the vote. Here, there were clearly Republican members of the Committee who did not want to go on record – and who may have been unwilling to go on record – voting to oppose an investigation. As a result, no vote was held).

And, one must remember that there are numerous other branches of this scandal which are alive, well, and growing. The investigation of the Senate Judiciary Committee continues, with disputes raging between the Republican Chairman and the Attorney General over the scope of further witnesses testimony and the DoJ’s obligation to disclose documents. The House Intelligence Committee voted yesterday to launch its own investigation and hold its own hearings, and Republicans on that Committee are already feuding with one another over the proper scope of that investigation. And, as I posted about yesterday, the judiciary is now involved in this scandal and is beginning to assert its institutional role in our democracy.

In sum, there are numerous governmental processes underway far beyond the Senate Intelligence Committee which are engaged in serious and potentially fatal investigations of this scandal. And beyond those, what will ultimately determine whether the Bush Administration is held accountable for its law-breaking are two components which neither Dick Cheney nor Pat Roberts can shut down – the investigative work of the press and the opinion of the public.

Some perspective is necessary and critically important here. The NSA scandal has only existed for two months. It arose in an environment where the President’s party controls not only the Executive Branch, but has transformed Congress into a compliant, obedient, impotent tool of the Administration. The Administration has successfully manipulated terrorism fears for quite some time, and the Administration begins with a rhetorical advantage with any measures that ostensibly involve counter-terrorism efforts. And large parts of the media are captive to the Bush world-view and resistant to the premise that the Administration may have been corrupt or acted illegally.

Thus, this scandal was never going to be the downfall of the Administration after a few weeks, and anyone who expected this was operating with wildly unrealistic expectations. It is going to take hard, focused, patient work to bring about a just resolution to this scandal. It is an uphill battle that will have to overcome substantial and formidable efforts on the part of the Administration to block investigations and they will do everything in their considerable power to ensure that they will be immunized from consequences. All of that has to be expected. None of it should come as a surprise.

There is nothing surprising – and nothing even remotely fatal – about the fact that someone like Pat Roberts engaged in slimy maneuvering in order to comply with Dick Cheney’s decree that there be no investigation by that Committee into this scandal. If that little stunt is enough to make people say that the whole thing is over and the Administration won, then it means that we weren’t prepared to fight very hard over this matter.

The reality is that the more the Administration fights to suppress investigations and conceal relevant facts, the more fuel is added to this fire. Every presidential scandal in history has been exacerbated by the cover-up component. Opponents of the Clinton Administration had some of their most compelling political P.R. victories when the Administration invoked precepts of "Executive privilege" in order to block interrogation and to avoid the disclosure of documents.

Rather than viewing each obstructionist step by the Administration as some sign of our inevitable defeat and doom, we ought to see it and use it as what it is -- a sign that, contrary to their bravado, the Administration is petrified of this scandal and is doing everything possible to prevent Americans -- through their Congress and the courts -- from discovering the truth.

During the Watergate scandal, the Nixon Administration engaged in all sorts of subterfuge designed to derail the Watergate investigation. The notorious Saturday Night Massacre occurred when the President ordered his Attorney General, Elliot Richardson, to fire the Special Prosecutor investigating the Watergate scandal (Archibald Cox), and when both Richardson and his Deputy refused to fire Cox, Nixon fired them and then found someone next in line at the Justice Department (Robert Bork) who was willing to fire Cox, which Bork then did.

When that happened, Americans who stood opposed to Nixon's law-breaking didn’t throw up their hands and moan that the Watergate investigation was over and concede defeat to the President. If anything, those obstructionist efforts fueled the scandal even more and emboldened Nixon’s opponents to create other ways to ensure that he and his Administration were held accountable for their law-breaking. In fact, public opinion was so inflamed by that obstruction that it was shortly thereafter that articles of impeachment were introduced for the first time.

The Watergate scandal took 2 1/2 years from the time it began until the time Nixon left office because of it in disgrace. The NSA scandal has been with us for 2 months. Watergate resulted in Nixon’s downfall not due to one large smoking gun revelation, nor was it because the country heard about the break-in and then stormed the streets demanding Nixon’s impeachment.

Nixon began that scandal as an immensely popular President - infinitely more popular than the unpopular Bush is now. And when the Watergate scandal began, the mere notion that it could lead to Nixon’s downfall was fantasy. And the scandal unfolded as a slow, grinding process which was the result of tenacious, relentless investigative work and a slow transformation of public opinion. And the Administration fought the investigation every step of the way, doing what they could to obstruct it at every turn.

It is highly instructive to recall the evolution of public opinion with regard to this Mother of all Presidential Law-breaking Scandals:


[I]t is worth remembering that Watergate, as a case against a presidency, was not built in a day, and the decision of most Americans to abandon their support of Nixon was not made overnight.

Shafts of light fell on Nixon's dark side in June 1972, when burglars were caught bugging the Democratic National Committee headquarters in the Watergate hotel-office complex. The few newspeople who went after the story began piecing it together that summer and fall: the program of dirty tricks and the illegal cash financing, the efforts to silence potential witnesses and shield the president.

While the revelations accumulated, the rest of the country tuned out. That November, Nixon carried 49 states in winning re-election. More than two months later, as the first Watergate defendants were going to court in January 1973, Nixon's numbers in the Gallup Poll were among the most robust of his presidency: 68 percent approval to 25 percent disapproval. . . .

Of course, that was before Nixon began talking about invoking executive privilege to prevent White House aides from testifying about an alleged cover-up. When that key phrase, "executive privilege," became part of the discussion, Nixon's numbers started their descent.

In February, the Senate voted 70-0 to empanel an investigating committee of its own. Nixon's approval rating in the first week of April stood at 54 percent in the Gallup Poll. Most Americans were still withholding judgment. Even after the April 30 speech in which Nixon announced the resignation of his closest aides, many Republicans continued to rally around the president.

The Senate Republican leader, Hugh C. Scott of Pennsylvania, said the speech had proved that the president was "determined to see this affair thoroughly cleaned up." The governor of California, Ronald Reagan, said the Watergate bugging had been illegal but that "criminal" was too harsh a term because the convicted burglars were "not criminals at heart."

That same month, Republican state party chairmen meeting in Chicago adopted a resolution blaming "a few overzealous individuals" for Watergate and lending unequivocal support to the president.Vice President Spiro T. Agnew accused the press of using "hearsay" and other tactics that were "a very short jump from McCarthyism." The same comparison was picked up by the man who had succeeded McCarthy in the Senate, Democrat William Proxmire of Wisconsin, who said the media had been "grossly unfair" to Nixon.

By then, however, the bleeding in the Gallup Poll had dropped Nixon to just 48 percent approval in the first week of May -- a drop of 20 percentage points since January. And that rating would keep on falling through the 25 percent level before Nixon's resignation in August 1974.


The Bush Administration isn’t going to just roll over at the first whiff of a scandal. But enormous strides have been made in public opinion. And there are already multiple Congressional investigations, lawsuits, raging and growing disputes within the President’s own party, and at least some important journalists who have shown a rare journalistic hunger over this story.

And most important of all, there has been no real campaign to convince Americans of what is truly at stake with this scandal. Most Democrats can barely get themselves to utter the fact that the President broke the law, and yet half of all Americans have already reached that conclusion on their own.

There is enormous potential for this scandal to grow, but that will only happen if people who believe that Presidential law-breaking is a serious threat remain resolute about making it grow and believe that they can contribute to its growth. Dick Cheney lobbied so hard to prevent the Intelligence Committee from investigating precisely because they want to create the appearance that this scandal is dying. That will happen only if people allow it to die, only if Bush opponents internalize the notion that they will inevitably lose because everything is against them and there is no way to change that.

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