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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.

Wednesday, February 15, 2006

The NSA Scandal and public opinion myths

(updated below - updated again)

The NSA scandal is at a crossroad. In one sense, there were numerous events this past week which reflect a growing scandal. Further hearings by the Judiciary Committee are being planned; increasing numbers of Republicans, including Rep. Heather Wilson, Grover Norquist and Richard Epstein, have expressed serious objections this week to the Administration’s actions; and Tim Russert devoted his entire hour on last Sunday's Meet the Press to the scandal, a clear sign of the scandal's growing strength.

But undercutting all of that momentum is the increasingly obvious fact that a substantial number of Democrats are flirting heavily with -- if they have not already outright embraced -- the notion that they ought to back away from this scandal, focus on legislative "revisions" to FISA in order to render retroactively legal the Administration’s patently (and proudly) lawless behavior, plead with the Administration to accept some oversight going forward, and then forget about the whole sordid affair. Put another way, many Democrats are slowly slouching towards the path they almost always end up taking – that is, not challenge the Administration due to three things: fear, fear and fear. Specifically, they are afraid that standing firm will backfire politically, even though all available facts suggest that this fear is wholly unfounded.

Political considerations to the side for a moment, how can Democrats even consider allowing the Administration to break the law with impunity? As I’ve argued many times, the Administration did not violate the law here because they have a specific view uniquely about their power to eavesdrop. They violated the law here because they have adopted a general theory of Executive power which maintains that the President has the right to act contrary to any Congressional law -- and without any judicial "interference" -- with regard to any decisions that even vaguely pertain to national security, even including the use of war powers against American citizens on U.S. soil. To allow the Administration a free pass on this lawlessness is to further install and solidify that ideology of lawlessness. How can any Democrat possibly think it’s in the interests of their party or this country to acquiesce to that?

What is so simultaneously bewildering and frustrating about the tentative and fearful posture assumed by so many Democrats with regard to this scandal is that the fears are based on nothing but pure fantasy and myth. This notion that Democrats cannot pursue this scandal because they will look weak on national security or be painted as wanting to "hang up on Osama" is completely negated by every relevant fact.

There was a new CNN/USA Today/Gallup poll released yesterday containing substantial data regarding public opinion of this scandal. As CNN reported:

About 49 percent of respondents said the president had definitely or probably broken the law by authorizing the wiretaps and 47 percent said he probably or definitely had not.

Those numbers were similar to a question about whether the program is right or wrong -- 47 percent said it was right and 50 percent called it wrong.

A majority believes the eavesdropping program is "wrong." And a plurality, close to a majority, believe that the President "probably or definitely" broke the law.

And if you add to that total the percentage (24%) which thinks that the President "probably" did not break the law (which means, by definition, that those respondents are still open to the possibility that he did), it means that 73% of the public is open to the possibility that the President broke the law here (with the vast majority of those believing that the President did break the law). One can look at the converse of that as well (that roughly the same total are open the possibility that the President did not break the law), but the point is that after two months of this scandal, close to a majority believe that George Bush did break the law and almost everyone outside of the hardest-core Bush loyalists (and even some of those) are open to the possibility that he broke the law.

These are extraordinary and unbelievably encouraging numbers, and that is so for several reasons. First, there is a potent and important core political belief in our country that the President is not above the law. Most Americans viscerally know that Richard Nixon was booted from the White House in disgrace because he broke the law. Few things would be more damaging to the President and his Administration – and deservedly so – than convincing the American public that he broke the law when exercising his political powers. These polls demonstrate that Americans are ready to be convinced of this. Many already have been. What rationale could possibly justify Democrats backing away from this opportunity?

Second, I am genuinely amazed that the percentage of people who believe that Bush broke the law is so high, because Democrats have barely even made this case to the public. The number of prominent Democrats who have come before the cameras and stated unequivocally and unapologetically that George Bush broke the law can be counted on one hand. Americans have almost come to this conclusion on their own. Imagine what these numbers would be if Democrats were acting in unison and were taking a firm and principled stance against the Administration’s law-breaking, not just with regard to eavesdropping but with regard to the Administration's views of the Executive power of law-breaking.

This Sunday’s Meet the Press was one of the most instructive, and depressing, illustrations of this phenomenon ever. The show was devoted to the NSA scandal. The Republican guests were the Chairmen of the Senate and House Intelligence Committees, Sen. Pat Roberts and Rep. Peter Hoekstra. The Democrats were the ranking Democrat on the House Intelligence Committee, Rep. Jane Harman, and former Senate Majority Leader Sen. Tom Daschele.

The two Republicans could not have been any more aggressive or absolute in defending the Administration. There was not an acknowledgment by either of them that any of the Administration’s defenses could be even remotely or theoretically flawed. They emphatically advocated the Administration’s views on each and every issue – the President did nothing wrong; he had legal authority both from Article II and the AUMF for everything he did; he briefed the Congress fully; and thank God he did this because he’s protecting us all from being blown up.

Amazingly, what Harman and Daschele said was not really much different than that. Neither of them once articulated the primary point here – that this is a scandal because George Bush broke the law, or that the Administration is espousing theories that entitle them to act contrary to law, even as to the Government’s treatment of American citizens on U.S. soil. You just don’t hear any of that from Democrats, at least not Democrats like Harman and Daschele.

What you hear is mealy-mouthed, conflicted incoherence which inexplicably attempts to pay homage to the basic goodness and rightness of the extremely unpopular Administration while offering only the most reluctant, tepid and fringe critiques of its actions -- and, from Harman, what we heard was that it was likely that the program was legal and, for that reason, the leakers and even the journalists who disclosed the program ought to be criminally prosecuted.

Republicans have been hammering the notion that the President’s actions were not only legal but absolutely necessary to prevent our children from being blown up, while Democrats have nervously suggested that maybe this wasn’t entirely proper but maybe we should also just ask the President how we can help to make what he wants to do legal.

And even with all of that, a plurality – almost a majority – believe that the President broke the law, and an overwhelming majority are open to the possibility that he did. Given the dynamic among politicians and the media, that is really an extraordinary result. So what explains the Democrats’ irrational and factually baseless fear of pursuing this scandal?

The central premise of conventional political wisdom is that Democrats are chronic losers whose real views are overwhelmingly rejected by most Americans. As a result, they can’t say what they really believe because what they really believe is embraced only by a handful of freaks and outcasts on the coasts and the "heartland" is repulsed by what they believe. As a result, if they want to win elections, they have to dress up what they think in much more moderate and Republican-accommodating language, constantly genuflecting to basic Republican premises but only nitpicking on the corners, because otherwise, normal Americans will continue to be repelled by their angry, radical agenda.

How many times do we hear that - from the media, from pundits, in the blogosphere, even from Democratic consultants? If there is such a thing as conventional wisdom, it’s that.

What is so unbelievable about this world-view is that it is so plainly predicated on falsehoods, on factually false premises. Let’s use the war in Iraq as an example. According to this prevailing wisdom, anyone who opposes the war on Iraq, who thinks it’s a mistake, who doesn’t pay homage to the President’s "go-on-offense-against-the-terrorist" routine when it comes to Iraq, is a pacifistic, out-of-the-mainstream loser who is an embarrassment to the Democrats and is the type of person who has to be repudiated and hidden if the Democrats have any hope of winning every again.

That notion is as widely accepted as it is false. Here is what USA Today reports about their latest poll:

Eichenberg says all that [perceptions that Iran is a growing danger] is eroding President Bush's standing, too. Among those polled, 55% say they lack confidence in the administration's ability to handle the situation in Iran. And Bush's approval rating has dipped to 39%, the first time below 40% since November, in the aftermath of Hurricane Katrina.

A 55% majority say the war in Iraq was a mistake. Just 31%, a record low since the question has been asked, say the United States and its allies are winning there.

The radical, out-of-the-mainstream view is not that the war in Iraq is a mistake. That is, quite solidly, the majority view. The radical view is that we did the right thing by invading Iraq. And yet, if you listen to the blogosphere, and more importantly, the establishment media, the premise is always that anyone who strongly condemns the war in Iraq (e.g. Howard Dean, Jack Murtha, etc.) is a fringe radical who is sinking the Democrats’ electoral chances. But the facts demonstrate that the opposite is true. A lopsided majority hold that view.

If a Democratic politician were to say that the U.S. was not winning the war in Iraq, swarms of media pundits and Bush followers would decree that Democrat to be an untrustworthy out-of-the-mainstream cretin who cannot be trusted and who Democrats must repudiate unless they want to keep losing elections. And yet, by a lopsided 65-31 margin, Americans agree with that view. The out-of-the-mainstream view is the one the media has depicted as being the only acceptable view - that we did the right thing in invading Iraq, that we are winning there, that questioning the wisdom of our ongoing occupation is "what Karl Roves hopes for" because it will doom the Democrats to defeat.

Democrats have to realize -- and now -- that nobody outside of the core Bush cultists even listens to these manipulative appeals any more. They worked in 2002 and 2003; they don’t work anymore. The well has run dry. All of the public relations stunts over the last month - the Heroic Salvation of Los Angeles, the new scary bin Laden tape where he copies Democratic talking points, the oh-so-tough-and-resolute State of the Union strutting – it all fell on deaf ears and achieved nothing. As the USA Today article explains:

"It [the poll] suggests that he's pretty much down to his core supporters out there ... and everyone else has left," says Richard Stoll, a political scientist at Rice University.

Right from the start, the usual nay-sayers in the press and the Democratic consulting class anxiously brayed that the NSA scandal was a political loser for the Democrats. Those of us who thought it was wrong and serious that the President wants to break the law were doing him a huge favor, we were told, and we should just shut up and let him go about the business of "defending the nation" however he thinks is best. If we didn’t, Americans would start to think that we were trying to block him from protecting the nation against The Terrorists.

It’s now been two months since the scandal first broke. It’s been the most prominently covered story by far during that period. Are Americans running into the arms of the President because they perceive that Democrats are trying to prevent him from eavesdropping on Osama bin Laden? No, no such thing is happening. The opposite has happened. After two months of the news being dominated by this scandal, Bush’s approval ratings are back in the 30s and everyone has abandoned him other than the cultists who form his base and will never abandon him.

Immediately after the first day of the NSA hearings, I wrote this concerning the factors which I believe will determine the course and outcome of this scandal:

The Administration will be held accountable for its illegal conduct here if and only if Americans becomes convinced that the Administration's actions were wrongful and deserve punishment. And that, in turn, will happen only if Bush opponents formulate an effective and coordinated strategy for making this case directly to Americans, and then articulate those principles aggressively and passionately.

Democrats will pursue this scandal the way they ought to if and only if the public demands that they do so. One of the central challenges of the blogosphere is to marshal the public’s anger over this scandal in order to force Democrats to hold the Administration accountable for its law-breaking, and to take a stand for the rule of law in this country. Most Democrats clearly won’t do this unless they are compelled to, but I believe that with a weakened, unpopular President and extremely encouraging public opinion polls on this scandal, we ought to devote our focused and vibrant energies towards preventing Democrats from running away from this challenge.

UPDATE: Sean-Paul Kelley reports at The Agonist that, while the world listens to Dick Cheney's stoic expressions of regret and pain, the House Judiciary Committee voted today 21-16 -- along party lines -- against requesting that the Justice Department produce legal documents (which do not reveal operational details) regarding the legality of the NSA program.

And Digby expresses frustration and offers some highly insightful analysis regarding the pitiful fear of many Democrats to take the position that the President ought to abide by the law.

UPDATE II: Every time I think the Administration is making headway in slowing down the momentum of this scandal, some event occurs which changes my mind. Atrios has posted excerpts of what appears to be a truly phenomenal speech by Sen. Byrd on the NSA scandal. A small portion:

…I plead with the American public to tune-in to what is happening in this country. Please forget the political party with which you may usually be associated, and, instead, think about the right of due process, the presumption of innocence, and the right to a private life. Forget the now tired political spin that, if one does not support warrant-less spying, then one may be a bosom buddy of Osama Bin Laden.

And the tenacious Thersites reports that Sen. Jay Rockefeller's office expects that "there will be hearings [of the Senate Intelligence Committee] within the next two weeks."

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