That is why I thought the letter from Alberto Gonazles to the Senate Judiciary Committee last week was so significant. Gonazles had many weeks to prepare for his testimony and, unlike most witnesses who testify in judicial proceedings, was free to speak for as long as he wanted without ever being interrupted or cut off by his questioners. The fact that he had to issue a 6-page single-spaced letter "clarifying" his testimony only a couple of weeks after he testified -- in which he literally retracted some of the most significant answers he gave and provided brand new, conflicting ones -- makes clear that Gonazles arrived at the Committee prepared to mislead it by concealing the Administration's actions.
This AP article from yesterday (h/t Edward Copeland) reports on a very interesting development in this regard:
Attorney General Alberto Gonzales' written answers to questions about the Bush administration's eavesdropping program may require him to testify a second time before the Senate Judiciary Committee, the panel's Republican chairman said Monday.
"There is a suggestion in his letter there are other classified intelligence programs that are currently under way," Senate Judiciary Committee Chairman Arlen Specter, R-Pa., told reporters. . . .
In all of my testimony at the hearing I addressed — with limited exceptions — only the legal underpinnings of the Terrorist Surveillance Program," Gonzales wrote. "I did not and could not address operational aspects of the program or any other classified intelligence activities" . . . .
Vermont Sen. Patrick Leahy, the Judiciary Committee's top Democrat, said Monday that Gonzales should come back before the panel to "clear up the confusion he created first by ducking our questions, and later by further clouding the issues with a 'clarifying' letter that substantially revised his unsworn testimony."
Specter's comments suggest he too has concerns about Gonzales' letter. "We may have to have him back before the Judiciary Committee," Specter said.
Having Gonzales called back before the Committee in order to explain the glaring discrepancies between his testimony and his subsequent "on-second-thought" letter can endow the scandal with an even greater whiff of deceit and cover-up. And the fact that one of the topics in which the Judiciary Committee members are interested is the issue of whether there are other warrantless eavesdropping programs in existence greatly heightens the potential danger for the Administration.
This is the same reason I believe that Senate Intelligence Committee hearings will be so helpful in fueling this scandal. It's not because the Committee will engage in any sort of vigilant effort to uncover what happened here. They won't.
It's because it seems extremely clear that the warrantless eavesdropping activities engaged in by the Administration extend far beyond the limitations to which the President repeatedly assured Americans it was confined - namely, only international calls where Al Qaeda agents or affiliates are a party. And if it's the case that the Administration's eavesdropping activities extend beyond those limitations -- and at this point, for anyone following these events, it is hard to believe that it doesn't (even the gullible, trusting Arlen Specter now seems to realize this) -- that fact will necessarily emerge as part of these hearings.
Even for those people who have not been following this scandal closely, the one thing they know, and that they remember, is that the President repeatedly assured them that the warrantless surveillance on Americans was for international calls only, involving Al Qaeda ("If somebody from al Qaeda is calling you, we'd like to know why"). If it turns out that this assurance was false -- that the Administration has been eavesdropping on purely domestic calls, or without knowing that someone on the call was from Al Qaeda -- then it will be a clear falsehood repeatedly issued by the Administration which people will be able to understand. Even the media will have no trouble understanding that such assurances can only be described as false.
Thus, even if the "independent Republicans" on the Intelligence Committee today demonstrate (again) just what an oxymoron that phrase is by preventing the Committee from holding hearings, it seems that the Judiciary Committee is prepared to demand answers from Gonazles as to whether there are other warrantless eavesdropping programs aimed at Americans besides the program disclosed by the Times.
This doesn't sound like they're about to shake hands and agree to sweep this all under the rug. Calling Gonazles back to ask why he lied, and ask if there are other programs, can only be great.
ReplyDeleteAnd he can't say he can't talk about it becasue he talked about it with Jane Harman, as you mentioned. If he can talk about it with his friend Jane, surely he can chat about it with Arlen and Pat.
The walls are closing in, slowly.
watching cspan this morning about the funding for the states hit by hurricnes,arlen specter dropped what i call a jaw dropping statement.he said that he plans to call gonzales back again and that he is considering cutting funds for the NSA program if he cant get more openess (paraphrasing his comment)did i misunderstand him??
ReplyDeletebr3n
watching cspan this morning about the funding for the states hit by hurricnes,arlen specter dropped what i call a jaw dropping statement.he said that he plans to call gonzales back again and that he is considering cutting funds for the NSA program if he cant get more openess (paraphrasing his comment)did i misunderstand him??
ReplyDeleteAll pompous people hate being lied to because they feel like they are being disrespected. Judges, who are about the most pompous group of people anywhere, will tolerate pretty much anything except when they think they are being lied to. Then all hell breaks lose.
If Spectre thinks that Gonazlez just showed up and lied to his face, that could be a huge mistake from the Administration. We'll see.
Specter is all talk, no walk. Let's see if he allows Abu to be sworn this time before we get excited.
ReplyDeleteMaybe this time the Committee will insist on having the lying twerp sworn in.
ReplyDeleteMost Democratic politicians are good poker players; they have been beaten by Rove enough to be wary and leading a failed impeachment effort could end their careers. The flop may contain an ace, but the other two cards are Kings. If Rove has wired Kings.....
ReplyDeleteIs it a bluff? Most Democrats have been delicately tap-dancing around this issue because the administration just may have those other two Kings. They have no proven bad motive. Where is the smoking gun? The only evidence on this important [if not determinative] point so far is the attorney general investigation of the Bush Administration’s behavior with regard to the Patriot Act and they came up squeaky clean. Not a good sign.
Let's review the state of play . . .
1) The legal landscape:
To say that the Democrats have the better hand legally is problematical. If only Justice Jackson had left out the possible exceptions in the Youngstown Steel case. If the GWOT is not an exceptional circumstance in our nation’s history I don’t know what one would be. That and Article II could be those other two Kings. Needless to say, the Democrats cannot be entirely confident that when and if this issue is ever litigated, their criticisms will be vindicated. The court could well find that a CIC has extraordinary powers if necessary to protect the Nation when it is under attack and the questionable surveillance, absent a smoking gun of misuse, is clearly in furtherance of national security. Oooops, four Kings.
2) The Administration clearly wants this issue to be contested other than by the Intelligence Committee:
Pat Roberts and Bill Frist are working feverishly to prevent the Senate Intelligence Committee from setting up a witch hunt like the SCOTUS appointments in order to deny Democrats a much-needed platform during the upcoming elections. The Democrats (aided by RINOs) on the committee can be problematical. This is definitely not the preferred battleground for the Republicans. They would prefer the full Senate (where they could even filibuster!).
3) This is almost the perfect wedge issue:
The GOP has used national security to great effect over the years. Were the Democrats paying any attention? If they were, they should be wary. National security issues have not been good for Democrats.
4) Polling:
The fact that a lame duck president with rock-bottom approval ratings is still able to intimidate his opponents ...
And last but far from least . . .
5) It's the right thing to do:
Democrats need to win. This could be their best opportunity. Long story short, it seems that most Democrats, at least so far, seem to be aware of the relative strength of their hand and the possible strength of their opponent's. They've got pocket Aces with another Ace showing on the flop, but they're still unsure about calling because of those Kings. If I could communicate one thing to the leadership of the Democratic party, it would be this: You've got the best hand you’ve had for some time. Have the courage to play it, but just call – don’t go all in; unless a smoking gun shows up. Then bet the ranch. This just in: Senator Leahy calls and makes a small raise. Good for him!
According to a Hill staffer I spoke with a little over a week ago, Arlen's unlikely to let it go if he feels lied to. In fact, it sounds a little to me like some of the more moderate Republicans are watching Arlen for cues on how they themselves ought to play it.
ReplyDeleteIf you put any faith in Roberts or Specter, that faith is misplaced. These are the same leaders who have consistently turned their backs on the torture and abuse of detainees under Administration control at Gitmo and Abu Graib. They are amoral.
ReplyDeletenotherbob
ReplyDeleteyou posted that comment in the wrong thread. that's annoying.
1. We have been told numerous times latley, that anytime you testify before Congress you are UNDER OATH. Let us recall that was the case of the gasoline leaders a month ago. The raising of the right hand is not necessary (they tell us).
ReplyDelete2. Snooping? I quote, "With Presidential authority, the intelligence community could at will intercept and transcripe the communications of Americans using international telecommunications facilities; eavesdrop from near or far on anyone deemed to be a 'Threat to the internal security,' read the mail of American citizens, break into the homes of anyone tagged as a security threat." Senate Intelligence Commitee/Committee to Study Government Ops. with Respect to Intelligence Activities, Final Report, Bk III, p.934 (1973).
Remember, Sam Ervin called it the "Gestapo" scheme (WP, June 1, 1973).
In 1974 wiretapping was a key when the House Committee on the Judiciary drew up the articles of impeachment. "In vilolation of his constitutional oath...in and disregard of his constitutional duty," the article stated, Nixon had "repeatedly engaged in conduct violating the constitutional rights of citizens..."
I quote the above from "The Arrogance of Power" by Anthony Summers.
Its like Deja Vu all over again...hey wasn't Rummy and Chaney in Nixon's White House? They were, they were! So was Powell, but maybe he recognized the script.
I am still waiting for them to rationalize eavesdropping on Democratic congressional and senate candites under the pretense of they are "trying to overthrow the government". Or maybe they already did this in 2004, which would explain their reluctance to talk about anything under oath.
ReplyDeletemo
ReplyDelete"If you put any faith in Roberts or Specter, that faith is misplaced. These are the same leaders who have consistently turned their backs on the torture and abuse of detainees under Administration control at Gitmo and Abu Graib. They are amoral."
so what? they're politicians who view most issues instrumentally, and they see that this at least potentially effects their political futures.
this is why it's important to make sure that these politicians know that this perception is correct, and the pragmatic calculations they make based on it will directly effect their political futures: making political hay from this issue while the sun it doth shine should be the order of the day.
asserting that they're amoral, calling them pompous because they don't like being lied to (as though they would be less pompous if they liked being lied to...): all of that noise is pragmatically worthless.
make a phone call or write a letter. it's so much less of a waste of time than cynicism.
"then it will be a clear falsehood repeatedly issued by the Administration which people will be able to understand. Even the media will have no trouble understanding that such assurances can only be described as false."
ReplyDeleteBut Glenn, if that's the case, then why doesn't the media seem to care about Bush's false assertions in 2004 that "any time we talk about getting a wiretap", they get a warrant?
That statement even seems far clearer as a lie than the more recent statements you're discussing.
Jeff
joe:
ReplyDelete"We have been told numerous times lately, that anytime you testify before Congress you are UNDER OATH. Let us recall that was the case of the gasoline leaders a month ago. The raising of the right hand is not necessary (they tell us)."
this is just factually wrong.
we are told, w/r/t to the CEOs of the oil companies that LYING to congress is illegal whether under oath or not.
lying under oath carries a whole additional boatload of legal consequences, mostly in the form of felony perjury charges.
but i'm actually not clear as to the particular differences between sworn and unsworn testimony before congress that explain why officials from this administration refuse as a matter of course to testify under oath. maybe one of the law-types here can explain the specifics: e.g. is it just that while lying to congress is bad and illegal it doesn't necessarily open members of the executive to the liability of potential impeachment?
Well, its more like the "distraction" phase -- just another form of "cover-up," but an important distinction.
ReplyDeleteCovering up can be construed as a crime; distraction is "business as usual."
Remember, they don't actually have to win elections, just create the illussion of an "engergized base"
They can essentiall admit that the majority of American's don't support them, but that their "highly engergized base" turns out in higher numbers...
Non-verifiable, proprietyar vote-flipping software does the rest. Of course, exit polls be damned.
And, of course, then we have to deal with democrats like lieberman or kerry...
Way to go... on the day chimpy demands the line item veto, proclaim to the world that you are his lapdog...
Arlen's unlikely to let it go if he feels lied to.
ReplyDeleteoooooooooooooooooooooh
these is nothing a lying liar hates more than when people lie to him or don't pay attention and proper deference to his grandstanding.
Yeah right, the man that played a pivotal role in the whitewash of JFK assassination is going to take a meaningful stand against the chimperor....
LOL
Even if you accept Oswald as a lone assassin, the conduct of that committee and Specter in particular should tell you everything you need to know about what to expect now.
I can see it now, some type of "magic bill of rights/constitution" thing....
The same protections that we hold up to the world as "democracy" zig and zag to enable a facist govenment run by the military-industrial complex.
The good news for specter and crowd is tha there are no laws of physics that will get in the way of manufacting excuses!
I am still waiting for them to rationalize eavesdropping on Democratic congressional and senate candites under the pretense of they are "trying to overthrow the government".
ReplyDeleteDon't need to rationalize anything as long as they have tools like specter and roberts. The vote-flipping software means that they can keep those tools in place. The neocon agenda and corruption ensure that there are enough distractions enable the MSM to continue to "catapult the propaganda."
No need to make any statements that will get anyone pissed...
After all, they have plenty of democratic enablers that will play along.
From Talkleft this morning: Investigative journalist Dahr Jamail, who spent eight months in Iraq, has a long article today in Mother Jones on how the Bush Administration has embedded torture as policy in Iraq and Guantanamo....
ReplyDeleteTestimony from Afghan prisons and Guantanamo, the photos and video from Abu Ghraib, evidence of extraordinary renditions to the far corners of the planet -- all of this doesn't even encompass the full reach of Bush administration torture policies or the degree to which they have been set in motion at the highest levels of the American government. But what simply can't be clearer is this: horrific methods of torture have been used regularly against detainees in U.S. custody in countries around the globe, while an American President, Vice President and Secretary of Defense, among others, openly advocated policies that, until recently, would have been considered torture in any democratic country.
In the meantime, the Bush Administration has twisted the law just enough to allow authorities to potentially pick up more or less anyone they desire at any time they want to be held wherever the government decides for as long as its officials desire with no access to lawyer or trial -- and now, for the first time, the possibility has arisen, at least in the military trials in Guantanamo, that testimony obtained by torture will be admissible.
Anon, sorry for my cynicism this morning but I had read this earlier in the day.
While your pragmatism is undoubtedly wise, stuff like the above simply makes me realize that only people who are totally amoral can turn a blind eye to what is being done in the name of the American people.
The entire article is available at http://www.motherjones.com/commentary/columns/2006/03/torture_trail.html.
The repugs will be in power forever as long as we continue to allow them to turn elections into referendums on gay marriage...
ReplyDeleteIt isn't that they win on that issue either, its the "engergized value voter" thing.
We all know the MSM will dutifully report it as the 'deciding' factor.
I'm not so confident that the facts "will necessarily emerge" in a new hearing.
ReplyDeleteRemember that Gonzalez found some way to tell Jane Harman by telephone "that there is not a broader program or an additional program out there involving surveillance of U.S. persons." My thought is that they temporarily halted any other program just long enough for him to truthfully state that there is no such program at the instant he's speaking (without being so glaringly obvious about it). Most likely he'd try the same dodge with the committee, and who knows if they'd be able to trap him on it.
Maybe next time they will put him under oath.....
ReplyDeleteRemember that Gonzalez found some way to tell Jane Harman by telephone "that there is not a broader program or an additional program out there involving surveillance of U.S. persons."
ReplyDeleteJust another example of a "magic bullet" in a major U.S. whitewash...
One of the bizarre rules of Washington scandals is that severe wrongdoing, including law-breaking, is insufficient to sustain interest or to warrant real accountability. The wrongdoing has to be accompanied by subsequent deceit designed to conceal the wrongdoing, and then everyone gets excited.
ReplyDeleteYes, true as far as it goes. However, the barrier to that principle working here, as I see it, is that many people would and do accept that the President and AG "had" to lie, in order to protect a crucially important intelligence scheme. That is, some will conclude that the motives not only were not venal, but that there is "justification" for the falsehoods.
Certainly many staunch Bush supporters are not going to be disturbed by these kinds of lies. The issue is whether a sufficient sector of the American public will be. That 50 State Survey linked to here last week is encouraging, but I'm not sure how deep such beliefs among a plurality -- i.e., that Bush is violating the lawand it is wrong -- actually run. The one(and only) area in which Americans still give Bush their significant approval is in his handling of terrorism (but not wrt the Iraq war).
Some scintilla of venal use of the illegal spying programs would be enormously helpful.
"We may have to have him back before the Judiciary Committee,"
ReplyDeleteI think the big word here is "may." I am not confident this will happen. The "rot" in the system, and the apparent willingness of the public to accept that rot without feeling any real outrage, may be fatal.
"Some scintilla of venal use of the illegal spying programs would be enormously helpful."
ReplyDeleteHypatia gets it.
I know Arlen is looking for some compromise law or bill on how to get out of this mess. Luckily, I have an idea!
ReplyDeleteWhy don't we start the process to add an amendment to the Constitution, that says that government can't spy on it's citizens without court oversight, such as a warrant!?
Ha! That'll teach the Democrats. Those things take FOREVER to get passed...
Mo said...
ReplyDeleteIf you put any faith in Roberts or Specter, that faith is misplaced. These are the same leaders who have consistently turned their backs on the torture and abuse of detainees under Administration control at Gitmo and Abu Graib. They are amoral.
Aside from the fact that it is coming out that there are numerous other, far worse places than the two cited above, I think this post really says it all.
The "torture and heinous abuse" issue is the most important issue of all to me. If governments, and the citizens of those governments, are willing to go along with these monstrous events, then what really can be expected? And do the citizens of those countries really deserve any better than they are going to get?
Morality seems to be pretty much dead in today's world. I think it may be too late for it to ever resurface.
notherbob2 asserts:Hypatia gets it.
ReplyDeleteDo not misunderstand me; Bush is a criminal, a self-admitted one. What I "get" is that politically it would be helpful if there was some venal application of his criminal activities that came to light.
Perhaps he should be administered an oath this time.
ReplyDeleteplease explain to me: why is it so terribly important that Gonzalez be sworn in? is the only point of swearing him in to open him to the liability of impeachment, or does it accomplish something else important?
ReplyDeletei think the repetition of "swear him in" misses the point that he's no more or less likely to tell the truth under oath. e.g. I'm pretty sure when the AG lies to congress, it doesn't matter whether he's sworn in at the time: given the proper political pressure, he can be impeached either way.
Further, the only people he has to convince of his truthfulness are the general public, and refusing to be sworn in actually works against this impression.
am i missing something?
Eyes Wide Open
ReplyDelete" Mo said...
If you put any faith in Roberts or Specter, that faith is misplaced. These are the same leaders who have consistently turned their backs on the torture and abuse of detainees under Administration control at Gitmo and Abu Graib. They are amoral.
[...]
Morality seems to be pretty much dead in today's world. I think it may be too late for it to ever resurface.
"
pardon me if i'm brusque, but i have zero patience for this garbage:
"Morality seems to be pretty much dead in today's world. I think it may be too late for it to ever resurface."
yes, the world is a bad place, has always been a bad place and will probably continue to be a worse place. But, frankly, SFW? if you're concerned about the terrible state of the world, why bother venting here? a more appropriate thing to do would be to actually DO SOMETHING about it.
Beyond me being a dick about it, however, it's a genuine issue: expressing your moral ennui ala Eeyore serves only to drain energy and initiative from others. (or, anyway, that's its sole effect except maybe making you feel marginally better.) So...put up or shut up, please.
Oh, the HOPE. Let's get him back up there, sweating into the mics. I particularly want to see another person stand up from the audience, and call him a fascist again. The last time was delish, delightful, delectalovely.
ReplyDeletePS
ReplyDeletethe point of swearing him in is Truth. we act as if we honor it, require, believe in it. thus, it may live. TA-DA!
Let's see if he allows Abu to be sworn this time before we get excited.
ReplyDeleteThis seems to be a theme here today. Maybe that might make a fun Alito-style, Intelligence-style phone calling campaign: a kazillion Pennsylvanians calling Specter and telling him they want Abu put under oath.
"the point of swearing him in is Truth. we act as if we honor it, require, believe in it. "
ReplyDeletethat's dumb. so what is WE like truth and think it's real neat-o? THEY have no concern for truth one way or another.
And self-righteousness isn't a plan, so give it up.
the only purpose of swearing gonzalez in would be to make him marginally more indictable in some future (e.g. from post Nov 06-til the next administration is sworn) when the dems have the numbers to push for impeachment. this would be a good thing, but it's a small point and a fairly long way off.
in the meantime, it serves to make what's plainly garbage more credible to a credulous public.
make a phone call or write a letter. it's so much less of a waste of time than cynicism.
ReplyDeleteMaybe not. What may be a waste of time is spending even a minute of a one's life engaging in actions which presume that others have a conscience or a sense of decency, when in fact they do not.
And the mother jones article makes me hate my fellow American citizens who, en masse, (with a few rare exceptions like the commenter who focuses on that article above) have lost the ability to feel outrage when nothing less than blinding, relentless, total outrage is appropriate.
And since I am feeling very negative today, I point out that as we have a government which sanctions torture (TORTURE!) and wrongful arrest with no possibility of appeal, and a citizeny which goes along with that, why should I really give a damn if the monsters in this country, and all other countries who go along with those policies, lose their civil rights?
They don't deserve them anyway. Let them all go to hell.
The tolerance of government sanctioned torture and tragic, wrongful arrest and prolonged detainment, with no ability to appeal or seek out redress has, in my opinion, posted the death notice for this nation.
Remember that Gonzalez found some way to tell Jane Harman by telephone "that there is not a broader program or an additional program out there involving surveillance of U.S. persons."
ReplyDeleteOrin Kerr made a good observation about this comment a few days ago on VC, and Orin is an expert in electronic communications.
Orin said that "surveillance" and "electronic surveillance" can be two different things.
Gonazles's statement could be technically true, but grossly misleading, if the other programs use "electronic surveillance" instead of traditional forms of surveillance. Read his post there to see what he has to say about that in his own words.
However, the barrier to that principle working here, as I see it, is that many people would and do accept that the President and AG "had" to lie, in order to protect a crucially important intelligence scheme.
ReplyDeleteThere is a big difference between concealing classified information and looking in the eyes of the American people in the middle of a scandal and outright lying. I don't know of a single recent example where it was clear that the President lied to Americans and Americans thought that was just fine. Are you (Iraq is not an example because many people don't believe Bush "lied" about WMDs)?
The one(and only) area in which Americans still give Bush their significant approval is in his handling of terrorism (but not wrt the Iraq war).
Sorry, but that's just no longer true. From the Qunnipiac poll (cited in a post of mine from 3 days ago):
Voters disapprove 52 - 42 percent, 57 - 39 percent in purple states, of the way Bush is handling terrorism, his lowest score on this issue.
Even those polls
The bigger problem for Bush is that Americans no longer trust or like him. While they may have ben willing to give him the benefit of the doubt in 2003 on issues of lying, this isn't 2003 anymore. He is an untrusted and disliked President, and he's seen as inept in every area, including terrorism.
That's why AL's post from this morning is so right on - this is a weakened, unpopular President with little real support. They should be using every tool they have to bash him until he falls.
a more appropriate thing to do would be to actually DO SOMETHING about it.
ReplyDeleteI have been DOING something, working non-stop for the last three months to try to change things, ever since I became of the issues.
But what exactly do you expect me to DO about the fact that this country is going along with a policy of government sanctioned torture?
If it was just the government, and everyone was against it, I could rail against the government.
But it's much broader than that. It's the citizens who are not objecting to that policy.
So, what exactly do you want me to do? Change their hearts? They know about it and they don't care.
So?
Tom Tomorrow mocks the Cultists...
ReplyDeleteBush Lovers' heads explode in 3, 2, 1...
eyes wide open:
ReplyDelete"Maybe not. What may be a waste of time is spending even a minute of a one's life engaging in actions which presume that others have a conscience or a sense of decency, when in fact they do not."
Grow up.
Part of being an adult – inherent in negotiating the world – is taking responsibility for one’s values. Humans all have beliefs about the way the world should be. But adults, insofar as they are “adults,” actively make the world into the kind of place they want to live. This is called in the books the “he who wills the ends wills the means” proposition: insofar as I assert normative beliefs, I am responsible for seeing to the means of implementing those beliefs.
So, either 1:
Admit that you aren't actually concerned about what you claim to be so upset by, shut up, and let other people get on with the business of being mature adults;
Or 2:
Do something about those values you say cause you so much pain.
Actually... i forgot option number 3: continue to offer your opinions, but admit that you're just as much a whiny-ass, bedwetting, irresponsible infant, who is just as unworthy of the rights you so loudly mourn, as the people you claim to hold in contempt.
and by the way, look around before you embarass yourself further: other people do care, and are doing something.
eyes wide open:
ReplyDeleteoh. um... ok. I just reread that. sorry. didn't mean to like flame you or anything. i just get tired of doing what i do every day and hearing the defeatest crap people regularly spew.
so, um... vent away, but when you're done feeling negative, you should look around a bit more and realize that other people do care and are doing something.
So all the important people in suits are in a conference room that's been carefully swept for bugs, discussing whether they'll defend the Constitution or roll it into a giant doobie, and all we can do is wait to find out what two individuals decide to do when faced with unbelievable political pressure.
ReplyDeleteIf I were a drinking man, I'd... oh, wait, I AM a drinking man! Good. I'll be back in a sec...
Seriously, I'm dying now. Just once I'd like to win one of these fights.
Glenn: I conflated an Indiana-specific poll I read of w/ a national one. There is hardly a state redder than the Hoosier one, and they have turned on Bush in every area but terrorism:
ReplyDeleteBush received positive marks in only one area: the fight against terrorism. There, 52 percent of Hoosiers approved of Bush's performance.
You ask if I knew of a President who lied to Americans and they thought it was fine. Reagan lied and deceived about Iran-Contra -- he and many of his minions broke the law, The Boland Amendment. Not much bad happened to Reagan, but some subordinates' hands got slapped.
What I think is that the illegal spying is an issue that has to catch fire first among the intellectual/reading class, to the extent that they exert sufficient pressure on Congress to do something about it. I honestly cannot see an oceanic popular uprising without the leadership of that class, absent something "sexy" coming out about the illegal spying. Warrant issues about high tech spy programs just is not sexy, like, say, Natalee Holloway, run-away brides, or a "war on Xmas." Our so-called news media focus endless hours of air time on these things because it is what interests the average news consumer.
That kind of consumer "gets" issues like bribes (Abramoff), breaking into Democratic headquarters to steeel their campaign secrets (Nixon), semen on a dress (you know who). Move into more sophisticated wrongdoing, however, and they are sheep who must be led.
Leadership has started here, and I hope there will be more of it.
Jesus. This is going to be a close one: Hagel, DeWine, Roberts.
ReplyDeleteI feel like I'm waiting for a jury to come back.
Thanks for the updates, Thersites2. I'm nail-biting with you.
ReplyDeleteHypatia said... in reference to Holloway type news coverage: Our so-called news media focus endless hours of air time on these things because it is what interests the average news consumer.
ReplyDeleteI disagree. The American public smells a rat and the rat is media run by and for the corporatist class. We don't know but I suspect the public is actually hungry for "real" news; i.e. from Iraq, about how the ports deal could even be envisioned, etc. Blaming the public is wrong. We are the public and we are expressing our displeasure via the only avenues open to us. We in the blog community are lucky. We have more news than the average American, we have people who share contact and other information to spread the word and take action. Imagine, Hypathia, if your only source of news was television, radio, and newspapers. How isolated would you feel.
Eyes Wide Open:
ReplyDeleteOrin Kerr made a good observation about this comment a few days ago on VC, and Orin is an expert in electronic communications.
Orin said that "surveillance" and "electronic surveillance" can be two different things.
Gonazles's statement could be technically true, but grossly misleading, if the other programs use "electronic surveillance" instead of traditional forms of surveillance. Read his post there to see what he has to say about that in his own words.
Not sure I agree. WRT the Fourth Amendment, electronic communication is still protected by the Fourth Amendment (and very few people dispute that base fact). The wiretap laws were intended to provide rules in the evolving age (even at that time, first half of the 20th century) of surveillance, but they are not not the bulwark and the limit of our protection WRT electronic surbeillance; the Fourth Amendment is. While wiretap laws can exceed the requirements of the Fourth Amendment, they cannot reverse it. The feds (or at least some there) would like to consider "electronic communications" to be outside the reach of the Fourth Amendment, just to make things easier for them, but they haven't been universally successful.
One major way that the feds have been trying to evade the Fourth Amendment has to do with "business records". Records kept in the ordinary course of business are exempt from the search warrant requirement of the Fourth Amendment, and can be sought through a simple subpoena (albeit a judge has to OK the subpoena, and it can be fought). A good recent example was the subpoena of Lewinsky's (IIRC) book and other gift purchases. Then you get into the fight over whether certain forms of "electronic communication" are business records, or whether they're something else, and actual "communication" expected to be private (keep in mind that the "reasonable expectation of privacy" is a keystone of Fourth Amendment jurisprudence as it currently exists). In the phone world, there's even two types of wiretaps: A "trap'n'trace" (or "pen register" type) tap, and a Title III "tap" (which requires a warrant complete with probable cause). The "trap'n'trace" warrants are in some respects similar to business records: They are a log of who called what number and when (which is stuff that would end up in billing records and could be sought ex post facto easily enough if the phone company keeps such records (which they do, for the most part, nowadays with modern telco switches). The Title III warrants cover taps that include the content of what the parties talked about (the voice, at one time, but a bit more general now). These warrants are more difficult to obtain, and under a higher standard of suspicion. And it's these warrants that are most likely required by the Fourth Amendment, at least under contemporary thinking.
Things get a little more complicated, though. There was distinction made (wrong in my mind) betwen the voice and the (digital) signalling associated with the call (referred to in the laws and standards as "call content" and "call data"). The extent of "trap'n'trace" warrants was to the call data only, and you need a Title III warrant to get the call content. But in the digital communications/signalling world, the distinction got a little muddy. Digital (and sometimes even voice) communications often involve "signalling" (and certainly involve "digital data"). There was some confusion (and TTBOMK, it hasn't been completely resolved yet) as to whether short message texting is "call data" or "call content". To my mind, while the "From:" and "To:" fields might be analogous to the "trap'n'trace" type information, the actual text message itself ought to be considered to be "call content" and thus require a Title III warrant. But I understand that some have argued that the text is also "signalling" or "call data" and ought to be included in the less restricted "trap'n'trace" data stream; in fact we had to put in a option so that the telcos could decide for themselves (or have a court decide for them) whether or not the short message text itself should be included in the "trap'n'trace" surveillances. Worse yet, I've heard that some telcos have in fact done their CALEA law compliance for short messaging by simply scanning their in-house billing records for the target's short messages and sending these off to the law enforcement agencies (sometimes the billing records include the message text contents; our was configurable in that respect). But if the text is part of the billing records, isn't it then "normal business records" and not subject to the Fourth Amendment?
There's another similar type twist to voice calls: Many types of calls nowadays are to DTMF-accessed attendant systems or automated IVR (intelligent voice response) systems. In some instances, the digits you push after the caall goes through are used to route you to an extension or internal function, but in some instances, they're really call content. Consider you want to transfer a balance: You call, choose the option for "transfer", then select account number(s) and amount. Which are the call data (signalling) and which are the call content? My answer is that
all post-cut-through (that is to say, after the initial publicly dialed number answers) digits are call content, and the feds really need a title II for these. But the specs and rules say that switch equipment should have the ability to do "dialed-digit-extraction" if there's a tap, and produce "dialed-digit" event packets when the call parties use the DTMF (buttons). And these events are generally considered to be "call data" (apparently under the rationale that the digits are just -- at least in some instances -- more call "signalling", such as the complete identity of the extension of the party called rather than just the switchboard number). That it would catch such more personal data as PINs and account numbers is just a neat little windfall for the snoopers. I'd say that if the feds want the dialled-digit info, they should either just go get the Title III warrant, or they should go ask the business that was called for their internal phone records (or even the business transaction records) .... But needless to say, no one asked me, and I'd be willing to bet that the feds are getting dialed-digit stuff for their "trap'n'trace" surveillances.
You get into similar fuzzy lines with web browsing: Is the URL you've done a "GET" for "signalling information" (similar to a "called number") or is it the "content" of your communication? Some ISPs may keep logs of web sites visited, with source and destination IPs, and if they do, it may well be a "business record". How about "form data"? It could be "signalling information" and thus part of a "trap'n'trace", or it could be "content" (the specific information that two parties [albeit one is a computer]) are communicating, analogous to voice recordings).
What about location information? Should the feds be able to track you under a "trap'n'trace" warrant? The way it works right now, they can at least ask for "serving cell site" events for an approximate location.
Of course, if you ask the feds, you will mostly get the answer that "the more, the merrier"; they think that all the data should be available (or as much as possible) under the least restrictive rules.
I know this is longish, but let me know if you're interested and want to know more or discuss it more....
Cheers,
Anonymous said...
ReplyDeletejoe:
"We have been told numerous times lately, that anytime you testify before Congress you are UNDER OATH. Let us recall that was the case of the gasoline leaders a month ago. The raising of the right hand is not necessary (they tell us)."
this is just factually wrong.
we are told, w/r/t to the CEOs of the oil companies that LYING to congress is illegal whether under oath or not.
lying under oath carries a whole additional boatload of legal consequences, mostly in the form of felony perjury charges.
but i'm actually not clear as to the particular differences between sworn and unsworn testimony before congress that explain why officials from this administration refuse as a matter of course to testify under oath. maybe one of the law-types here can explain the specifics: e.g. is it just that while lying to congress is bad and illegal it doesn't necessarily open members of the executive to the liability of potential impeachment?
Well, I'm one of those law-types and I'll try to clear up some of the confusion.
It is not accurate to say that anytime you testify before Congress you are under oath. However, under Federal law, lying to any Federal authority, even if you are not under oath, is a felony. (This is what Martha Stewart was convicted of.)
To be specific, 18 U.S.C. section 1001 provides that in matters within federal jurisdiction, any person who "knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both. . .
With respect to any matter within the jurisdiction of the legislative branch [this provision applies to, among other things, any] document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or (2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate."
Lying under oath is also a felony. 18 U.S.C. Section 1621 provides: "Whoever, (1) having taken an oath before a competent tribunal, officer, or person, on any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall... be fined no more than $2,000 or imprisoned not more than five years, or both."
So, the potential penalties for lying to Congress while not under oath (up 5 years in prison and/or an open ended fine) are at least as severe as the potential penalties for lying under oath (up to 5 years in prison and/or up to a $2,000 fine.) In addition, committing either offense would almost certainly be considered serious enough to warrant impeachment and possible removal from office.
The problem is, I think, a matter of perception. Outside of the Government itself, hardly anybody knows about the first statute; it would not occur to most people that lying to Congress could be a crime, or, at least, not a very serious one, unless the person testifying had been sworn in. I think that this is the obvious reason the Republicans were so adamant about not having Abu Gonzalez sworn in the first time he testified before the Judiciary Committee. While the Senators on the Committee and, presumably, Abu himself, would know that the lying creep is also a lying criminal, the general public will not see it that way. He lied to the Senate? So what, he never took an oath did he? So, big fucking deal. (Besides, he had his fingers crossed behind his back the whole time. Didn't anybody else catch that on C-Span?) And, by the same token, that is obviously why the Democrats and the Republicans like Specter who are getting more and more pissed off about this have to insist on making the little weasel raise his right hand and swear on the Bible, on his mother's honor, on the Boy Scout Oath, and everything else they can think of the next time he comes in. He’ll still lie, but at least there will be the image of him with his hand on the Bible to work with later on.
Thersites2 said...
ReplyDeleteJesus. This is going to be a close one: Hagel, DeWine, Roberts.
I feel like I'm waiting for a jury to come back.
Me, too. And if the vote goes the wrong way, my ittle law lesson above will have been somewhat pointless, I guess.
Imagine, Hypathia, if your only source of news was television, radio, and newspapers. How isolated would you feel.
ReplyDeleteWell that explains why they have been dumbing down the schools for generations now. Literacy rates have actually DECLINED since mandatory public school k-12.
Those of us that can actually read, comprehend, and apply complex writing are in the minority.
peachkfc;
ReplyDeleteThanks for the info
joe
You're welcome, Joe.
ReplyDeleteeyes wide: In a country where so many are not outraged by the death penalty, it's hardly surprising that (other) torture doesn't bother them that much.
ReplyDeleteno hearing.per cnn
ReplyDeletebr3n
peachkfc, thanks for so concisely summarizing the appropriate law on lying to Congress. It probably took much more of your time and consideration to write, than it did to read. (Joe at 1:34, you at 6:07)
ReplyDeleteto the anon who critizied me for whining and acting childishly and defeatist:
ReplyDeleteI know, I know, you're right. I knew this motion would be defeated, but I let myself hope, so the let down was bitter because the stakes were so high.
Don't worry. I'll regroup and we'll either win or go down fighting like all the other true patriots in this country.
I do think the South Dakota new law is a good thing.
And I hope BushYooCo does go after the NY Times.
The drip, drip, drip, drip, drip drip, drip hasn't seemed to get the public sufficiently wet to make them want to change clothes. Some real excesses are needed to move things along, and these two items more than qualify.
Onward!
turing test said...
ReplyDeletepeachkfc, thanks for so concisely summarizing the appropriate law on lying to Congress. It probably took much more of your time and consideration to write, than it did to read. (Joe at 1:34, you at 6:07)
Thanks for the thanks, I appreciate it.
A stupid, simple question.
ReplyDeleteIf people want to know if they are being surveilled, and believe unjustly so, how can they assure themselves that this is/isn't the case?
If there is no way to find out, I make this proposal:
A huge ass petition, signed by people with their real names, stating that they want to know if they're being spied on illegally, and registering publicly their claim to innocence when it comes any thing that would warrant such a search.
Hell, get a hundred thousand people together who understand what is at stake and who demand to know if they have any records in the big file cabinet in the skynet. Publicly come out with that demand, on paper, right alongside their name.
Send a message. Spy on me you no account fucks. If you're not already.
I said previously:
ReplyDeleteWhat about location information? Should the feds be able to track you under a "trap'n'trace" warrant? The way it works right now, they can at least ask for "serving cell site" events for an approximate location.
From an article today, sounds like the FBI has been getting a lot more than they're entitled to:
In one case, the FBI obtained the contents of 181 telephone calls rather than just the billing records to which it was entitled.
Getting call content (Title III information) when they should only have been getting "trap'n'trace".
And:
In another, a communication was monitored for more than a year after eavesdropping should have ended -- although investigators blamed a third-party provider for the mix-up.
Hope it wasn't our software (but I doubt it). That was one of the Y2K worries; that warrant expiry wouldn't be handled properly.... ;-)
Cheers,