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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, March 03, 2006

More conservatives jump ship & other matters

(updated below)

Following are several observations about Iraq, the NSA scandal, and some brief but necessary intra-blog issues. For your reading convenience, if you are one of those people who dislike self-referential blog items, you can skip items (2)-(4):

(1) Yet another conservative, National Review’s John Derbyshire, yesterday acknowledged that the war in Iraq has been a failure and the only thing left for Bush to do is to figure out a way to withdraw while minimizing both the political damage to Republicans and the national security damage to our country. Derbyshire’s concession that the war is a failure followed on the heels of similar admissions from the Father of Modern Conservatism, Bill Buckley, and George Will:

Well, I'm with Bill Buckley and George Will. This pig's ear is never going to be made into a silk purse, not by any methods or expenditures the American people are willing to countenance. The only questions worth asking about Iraq at this point are: How does GWB get out of this with the least damage to US interests, and to his party's future prospects? I wish I had some answers.

And what is Derbyshire’s assessment of the probability that Bush can succeed in making defeat look less disastrous than it really is? "Low to zero." As Hypatia insightfully observed in a Comment yesterday:

Derb -- who holds some views I find repugnant -- has a background in science and math, and is a consummate rationalist. His mind and temperament are of the type that do not permit the whistling past the graveyard, denial and various other strained antics still seen in most Bush supporters commenting online.

Isn’t it going to become increasingly difficult for Bush followers to shift the blame for their disastrous war project onto "liberals" when so many conservatives are declaring the whole thing to be a smashing defeat? Obviously, that won’t stop them from trying – facts never do – but these defections and heresies will make doing so much more difficult.

(2) I will be on The Al Franken Show (with Sam Seder) today on Air America at 2:34 p.m. EST, along with columnist Joe Conasan, to discuss "the news of the day." You can listen on your local affiliate or to the live audio stream here.

(3) Many people, both in Comments and by e-mail, have expressed the view that the quality of the discussion in the Comments section has degenerated over the past couple of weeks, primarily due to the unproductive, repetitious recitation of empty talking points by a handful of commenters who post between 20 and 25 times each after each post.

I’ve previously described my views about online debates, comments sections, and my opposition to banning people and/or deleting comments. Those views have not changed. But yesterday, one Commenter mentioned the "Collapse Comments" function at the top of each comment thread. Clicking on that collapses all comments into a list of names of the commenters, so that you can click on the names of those whose comments you want to read, and skip the ones you do not. If you are so inclined, I strongly encourage you to use that function. It works quite well and is easy to use.

(4) Blogads has some sort of survey up and I have no idea what the purpose of it is, but I’ve seen almost every blogger on the planet ask their readers to take the survey and enter the name of their blog under question #23. I honestly have no idea what value there is in that or what great honors are bestowed on a blogger for having one's blog entered in question #23, but there must be something. So, not wanting to be excluded from the blogger glory that must somehow result from having your blog entered in that special field, here is the link for the survey.

(5) The Maine/Nebraska phase of our campaign to target local newspapers and radio shows is continuing. If you have any connection to either of those two states, you can achieve a lot by taking a little bit of time to send in a Letter to the Editor or, a little more ambitiously, submitting an Op-Ed, explaining why it is so imperative that the Senate Intelligence Committee hold hearings on the NSA scandal.

The vote on Sen. Rockefeller’s motion to hold hearings is scheduled for March 7, and it’s been reported that both Sen. Hagel and Sen. Snowe have been leaning towards supporting the motion. That type of localized discussion can make a substantial difference, especially in small states.

Jane Hamsher has a post outlining the logistics for how we are coordinating this, and Thersites at Vichy Democrats has all of the contact information you need here. I’ve laid out some points that can be used here, although these letters and Op-Eds should be all individually expressed. Anyone with any connections to those states is strongly encouraged to submit something.

(6) Yesterday, I discussed what I thought were the most significant revelations from Alberto Gonzales’ letter to the Senate Judiciary Committee. Here are several other important points which I did not discuss:

(a) Gonzales' letter makes clear that when the warrantless surveillance program began, the sole justification for it was the belief that the President has unfettered power to take action with regard to national security matters even if it means engaging in conduct which the Congress has criminalized by law. The purported belief that the AUMF constituted Congressional authorization to act outside of FISA came much later, almost certainly in 2004 (at the earliest) when DoJ lawyers (like Comey and Goldsmith) were insisting that the program was illegal. As a result, the Administration needed to find a legal justification for it, which caused them to stumble into the AUMF and then start claiming that it "clearly" constituted such authorization.

Thus, any claims that the Administration believed that its program was authorized by Congress when it commenced this program are false. Instead, as Hilzoy astutely points out, when Bush first ordered the NSA to eavesdrop without warrants, the Administration knew they were acting contrary to FISA but did so anyway based solely on the Yoo Theory that the President has the unfettered power to do anything he wants, even commit criminal offenses, with all matters relating to national security.

(b) For the first time ever, Gonzales admitted that the NSA program was implemented before the Patriot Act was passed. As Orin Kerr explains:

The NSA surveillance program was authorized by the President very soon after 9/11. Specifically, it had already been authorized by the time the President signed the Patriot Act into law on October 26, 2001.

The Patriot Act, of course, amended FISA by liberalizing the President's eavesdropping powers in all of the ways the President requested. Had the President really believed that FISA was too restrictive to allow necessary eavesdropping, he could have simply asked Congress as part of the Patriot Act -- which was not yet passed when the warrantless NSA program was implemented -- for additional amendments to enable him to do everything within the FISA framework that he had ordered the NSA to do outside of FISA.

Is this not conclusive proof that what the Administration really wanted was not liberalized eavesdropping powers (which they could have had as part of the Patriot Act but did not pursue)? Clearly, what they wanted instead was the ability to eavesdrop without any judicial oversight.

(c) At the hearing, Sen. Feingold asked Gonzales: "Do you know of any other President who has authorized warrantless wiretaps outside of FISA since 1978 when FISA was passed?"

In his letter, Gonzales replied: "If the question is limited to electronic surveillance as defined in FISA . . . we are unaware of any such authorizations."

In a world where intellectual honesty reigned, Bush followers would immediately cease propagating the myth that "Clinton and Carter did it, too."

(d) Anonymous Liberal makes an excellent point about the obvious contradiction in claiming, on the one hand, that Congress' renewal of the Patriot Act is so very vital to our nation's ability to protect itself, while on the other hand, claiming that the President has magic Article II powers which authorizes him to do anything he wants to protect the nation with or without Congressional authorization. These are the types of glaring contradictions in governmental statements which our national media never points out. That, at the moment, is a serious failure in how our country is supposed to work.

(7) Sen. Byrd yesterday introduced legislation to create an independent Commission to investigate, among other things, the law-breaking issues raised by the NSA scandal. He issued an extremely potent and on-point statement explaining why such an investigation was urgently needed (h/t McJoan):

These concerns have, of course, been dismissed by the same branch of government that hatched the domestic spying program. But this stonewalling is only part of the story. Important questions about NSA's program have been answered with strained and tenuous justifications, or claims of the dire need for secrecy and, as a result, Congress's access to information has been severely curtailed by the Administration. . . .

We know that in a February 28 letter to Senate Judiciary Committee Chairman Arlen Specter, Attorney General Gonzales admitted that the Justice Department's legal justification for the wiretaps has "evolved over time." What does that mean? Does it mean that there actually was no legal basis for the NSA to spy on American citizens when it first began the surveillance? Does it mean the Department had to "gin up" some legal basis for the spying once the program became public? Does it mean the Administration's reliance on the use of force resolution to justify its snooping was simply a ploy, an "after-the-fact" face-saving device meant to give the Administration "cover" for having violated Americans' civil liberties?

In fact, it is because our forefathers were fearful of recreating the same tyrannous form of government from which many of them had fled, that the Bill of Rights was
added to the Constitution to better secure, for all time, the freedom from oppression that ever looms from an overly powerful executive.


In a climate of fear, liberties have been sacrificed time and again under the guise of keeping the Nation from harm. Fear is a powerful tool for manipulation, useful for easing the American people out of their liberties and into submission. When the public is confronted with a situation, real or imagined, that inspires fear, they rightfully look to their leaders for protection from foreboding consequences. The claim of wartime necessity always strengthens a President. And often facts are sealed from the prying eyes of Congress by a purported need for secrecy.

But, Senators have a sworn duty to check executive power in times of crisis or otherwise. We are each bound to defend the Constitution, and the liberties it gives to all Americans, in times of peace and war. History has shown us many times that a climate of fear can take a hefty toll on our freedoms. Worse still, are liberties surrendered in vain, resulting in little added security.


Sen. Byrd is facing a tough re-election fight in a purple state. That fact has led him this year to take prominent stands which were popular in his state that he might not otherwise have taken -- such as his vigorous opposition to the Alito filibuster and ultimate support for Alito's ascension to the Court. And here, he has chosen to take a very principled and aggressive stand on the NSA issue. Democrats in Washington: does that tell you anything?

There are people, including many prominent conservatives and, increasingly, Democrats in Washington, who understand why this scandal constitutes such a profound threat to the principles on which our system of government is based. They are starting to be heard from more and more, and as I’ve said many times, the more stonewalling the Administration engages in, the more "strained and tenuous justifications, or claims of the dire need for secrecy" they make in order to impede investigations and conceal what they did, the more this scandal will grow.

UPDATE: A commenter points to this article from today's Washington Post, which reports that (the absolutely odious) Rep. Jane Harman faxed a letter to Gonzales asking if there are currently any other warrantless eavesdropping programs aimed at Americans, and Gonzales then called her on the phone and -- as reported by Harman -- "assured (her) that there is not a broader program or an additional program out there involving surveillance of U.S. persons."

Gonzales' denial, at least as Harman conveyed it, purports to comment on what the Administration is doing currently, not what they have done in the past. If they stopped eavesdropping on domestic communications yesterday, Gonzales' statement would be technically accurate.

Here's one question raised by the oddity of how this denial was issued: If Gonzales can call Jane Harman on the telephone and tell her that there are no domestic eavesdropping programs currently in place (and then presumably authorize Harman to tell this to The Washington Post), why couldn't Gonazles have just answered the multiple questions that were asked when he was testifying about this three weeks ago? When he was asked while testifying if there were other warrantless eavesdropping programs, he refused to answer on the ground that such information was super-secret. How come he could answer that question to Jane Harman on the telephone but not the Committee while testifying?

And, since Gonzales has now commented on whether there are any current warrantless domestic eavesdropping programs, there is no conceivable rationale for refusing to say if there were any such programs in the past. Maybe Jane Harman can call her friend Alberto back for another chat and ask that question and then tell us what he says.

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