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.

Wednesday, February 22, 2006

NSA scandal and Portgate - a perfect match

When this port controversy erupted yesterday, I thought that it might be prudent to wait a few days before activating the focused, state-based campaign designed to influence the NSA investigations which Jane Hamsher, John Amato and I described a couple of days ago. I originally thought that with the media attention focused for the time being on the Administration's growing port problem and seemingly intractable dispute with Congressional Republicans, it might be difficult to induce people to pay attention to the NSA scandal until the port dispute settled down a little.

But after thinking about it more and talking further with those who have begun to participate in our project, I actually think the reverse is true -- that the serious split between the Administration and their formerly compliant Congressional allies is, for many reasons, the perfect framework in which to press for real Congressional investigations into the NSA scandal. The emergence of this sharp wedge between the Congress and White House, as well as the distrust of the White House which the port controversy is generating, create the ideal groundwork for agitating for Congressional investigations.

The principal argument which has been invoked by the President's apologists for suppressing investigations -- namely, that we should blindly trust the President on national security matters and that Congress has no business investigating the President's decisions concerning the "war on terror"-- is entirely obviated by the port controversy. In response to demands for an NSA investigation, it will now ring intuitively false for any Republican Senator to claim that Congress has no role to play, or that the Administration should be trusted with no oversight, when it comes to making decisions about how to defend the nation.

After all, the spectacle playing out in front of everyone's eyes is precisely the opposite -- namely, Congressional Republicans are insisting that they need to intervene in the decision-making process of who will control our ports precisely because the Administration has exercised such poor judgment and cannot be trusted to operate without Congressional oversight. In many ways, this conflict between Congressional Republicans and the Administration is the perfectly constructed antidote for the noxious excuse we've been hearing (from Pat Roberts, among others) that Congress should not bother the White House about any decisions which the President makes relating to defense of the country.

Beyond that specific point, this port controversy represents yet another instance where the Administration expressed its transparent contempt for the notion that Congress has any real role to play in our system of Government other than giving symbolic endorsement to the dictates of the President. Drenched yet again with the humiliation that comes from being ignored and misled, members of Congress -- including Republicans -- will be in no mood to play the role of meek little rugs which lay quietly on the floor and have no role other than to conceal the Administration's dirt. Helping the White House evade accountability for the NSA scandal by continuing to stonewall investigations would appear to be the very last thing this Congress -- desperate to demonstrate its institutional dignity and independence -- would be inclined right now to do.

In light of all of that, we want to being our laboratory experiment by first targeting Kansas -- because it has a Senator (Roberts) who is probably the single most important person right now in determining whether a Senate Intelligence Committee investigation will proceed; because it has another Senator (Brownback) who is on the Judiciary Committee and has expressed strong objections to the White House's NSA law-breaking; and because we have had a substantial number of Kansans who are very familiar with the political terrain in that state step forward to work with us.

We believe we can develop a potent strategy for generating as much pressure and persuasion as possible towards Roberts (and Brownback) to encourage a meaningful investigation into to the NSA scandal -- not because the Administration should per se be assumed to be guilty of high crimes, but because the NSA program has generated a very intense controversy and Americans ought to know what our Government has been doing with regard to its secret eavesdropping on American citizens.

Only a meaningful Congressional investigation into the operational aspects of the program (obviously with safeguards to prevent disclosure of genuinely classified information) can bring these facts to light. The Administration has repeatedly claimed that it welcomes an investigation; it's time for the Congress to ensure that Americans can know the facts about what happened here.

Jane is working with the people in Kansas who are working on this with us. If you live in Kansas and have connections to that state and want to help, please contact Jane. Over the next couple of days, we hope to have finalized this first step, and will then begin to work on developing a strategy for the next couple of states (maybe Maine, Pennsylvania and/or Nebraska).

The fact that Congressional Republicans have stepped so publicly out of line, questioned the President's judgment with regard to defending the nation, and insisted that they have a serious and important role to play in exercising oversight concerning national security matters, is actually the most encouraging sign yet of the real possibility that there will be serious consequences for George Bush's decision to deliberately violate the law. We want to do what we can to help that process along.


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