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, March 31, 2006

Does the White House NSA defense come from John Mitchell?

(updated below - updated again - and again)

Among the witnesses testifying at the Senate Judiciary Committee hearing today on Sen. Feingold's Censure Resolution is former Nixon White House Counsel John Dean. Dean has frequently compared the abuses of the Bush Administration generally to those of the Nixon Administration, and has specifically compared the illegal eavesdropping activities of the two Administrations.

While we know that the eavesdropping ordered by President Bush is exactly the eavesdropping which FISA makes it a criminal offense to engage in, we do not yet know -- thanks to the frenzied efforts of Bush defenders to suppress any and all investigations into the Administration's eavesdropping activities -- the nature and extent of Bush's warrantless eavesdropping program. We do not, for instance, know which Americans were eavesdropped on, how many Americans were subject to this illegal surveillance, how it was determined who would be eavesdropped on, what was done with the information, whether purely innocent Americans had their communications intercepted without judicial approval, etc.

The White House has repeatedly assured us that there is no reason for us to know any of this, and there is nothing for us to worry about, because they are eavesdropping only -- to use a The White House's formulation -- on the "very bad people."

In that regard, John Dean is an excellent witness for the hearings today, since he was part of an Administration which invoked exactly the same rationale. According to this July 25, 1969 article from Time Magazine, which was reporting on public fears over new surveillance powers given to the Administration by the Congress, Nixon's Attorney General John Mitchell told Americans they had nothing to worry about:

During his presidential campaign, Richard Nixon said that he would take full advantage of the new law-a promise that raised fears of a massive invasion of privacy. To calm those fears, the Administration last week issued what amounted to an official statement on the subject.

In his first news conference since becoming the President's chief legal officer, Attorney General John N. Mitchell pointedly announced that the incidence of wiretapping by federal law enforcement agencies had gone down, not up, during the first six months of Republican rule. Mitchell refused to disclose any figures, but he indicated that the number was far lower than most people might think. "Any citizen of this United States who is not involved in some illegal activity," he added, "has nothing to fear whatsoever."

Because all of this was before FISA, the Nixon Administration was able to exercise their eavesdropping powers on Americans in secret, without any oversight of any kind -- just like the Bush Administration has been doing even in the face of FISA. We all know how well that worked out. It was the shocking abuses of those powers by not just the Nixon Administration, but by the Kennedy and Johnson Justice Departments as well -- all which were revealed only as part of the Church Committee's investigation -- that led to the enactment of FISA, since the country no longer trusted political officials to exercise eavesdropping powers on Americans in secret and with no oversight.

It is rather striking how the White House's defense of its activities -- and its explanation for why there need not be any Congressional investigation into its actions ("you shouldn't worry"; we are only eavesdropping on the "very bad people") -- is virtually identical, both in substance and in words, to the assurances given to us on the same topic by the Nixon Administration. John Dean is an extremely appropriate witness at these hearings in so many ways.

UPDATE: As commenters here pointed out (I didn't see it), Sen. Feingold read from parts of this post at the Censure Resolution hearing this morning (and, courteously, credited this blog) when he was questioning John Dean. He specifically asked him about the Mitchell quote.

To see the video excerpt of that exchange, click here, then click on

Senate Judiciary Hearing on the Censure President Bush.

You can watch the whole hearings there. The exchange where Feingold quotes from this post begins at 2:41:55. (UPDATE - C&L has now posted the video clip here).

UPDATE II: I will be on Air America's Majority Report with Janeane Garafalo at 9:22 pm EST tonight to talk about the hearings. That was scheduled a few days ago. You can listen to the live audio feed or see the station list here.

UPDATE III: C&L has now posted the video clip of the Feingold-Dean exchange.

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