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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, March 22, 2006

Myth-making and excuse-making on the Feingold Resolution


(cross-posted at The Huffington Post)

In order to generate further support for the Feingold Censure Resolution, numerous bloggers are encouraging everyone to pay an actual physical visit to their Senators' local offices in order to urge support for censure. Anyone doing so is likely to encounter the two primary myths/excuses which have been concocted by Senators and others in order to justify their refusal to support the Resolution. They are both plainly false:

MYTH/EXCUSE NUMBER ONE: An investigation is needed before it can be known whether the President broke the law.

This has become the favored weapon of evasion for most Democratic Senators. Most who have refused to take a position on the Feingold Resolution have used the excuse that there has to be a full investigation before they can know if censure is appropriate. We have heard this excuse from, among many others, Senators Salazar, Stabenow, Bingaman, Levin and Dodd. That is just a small sampling of the list of Democrats who have claimed not to be able to take a position on the Feingold Resolution until an "investigation" is conducted.

Bush supporters have also been peddling this same myth. In his angry and rather uncontrolled rant this weekend on Chris Wallace's show, Brit Hume proclaimed that it was somehow outrageous for Senators such as Feingold and Tom Harkin to attack the illegality of Bush's warrantless eavesdropping when they "have not even been briefed on the program" -- as though we do not yet know enough about the program in order to determine whether it is illegal.

This excuse for not taking a position on censure is not only false, but also outright illogical on its face. There are two distinct and independent issues raised by the NSA scandal:

ISSUE 1: Did the President break the law when he ordered warrantless eavesdropping on Americans?

ISSUE 2: What was the scope and extent of the President's secret eavesdropping? Did the warrantless eavesdropping include only international calls, as he claims, or purely domestic calls as well? Were only suspected Al Qaeda members eavesdropped, on as he claims, or did the eavesdropping extend beyond that? How was it determined who would be eavesdropped on? And what was done with the information?

These issues are separate and distinct. Issue 1 is what Feingold's Censure Resolution concerns. It is the "Illegality Question," i.e., whether the President broke the law when ordering warrantless eavesdropping on Americans. Issue 2 is the "Abuse Question," i.e., whether the President abused the eavesdropping powers he secretly exercised in violation of the law by, for instance, eavesdropping on Americans who have nothing to do with Al Qaeda or eavesdropping beyond the scope what he has claimed.

It is unquestionably true that an investigation is needed - urgently needed - in order to learn the answers to the questions relating to Issue 2. We do not know the scope and extent of the President's warrantless eavesdropping precisely because he eavesdropped in secret in violation of the law, rather than with judicial oversight. That is why it is so inexcusable that all of the Republicans on the Senate Intelligence Committee voted against Sen. Rockefeller's motion to conduct an investigation to find out the answers to these questions.

But in stark contrast to Issue 2, all the facts necessary to know the answer to Issue 1 are already disclosed, are publicly available, and have been admitted by the Administration. Therefore, while an investigation into Issue 2 is imperative, all of the facts relevant to the question of whether the President broke the law (the only issue raised by the Feingold Resolution) are already known, and for that reason it is illogical to claim that an investigation is needed before that question can be answered. Put simply, we don't know the scope and extent of the President's illegal eavesdropping, but we do know that the eavesdropping he ordered was illegal.

Under FISA, it is a criminal offense to eavesdrop on Americans without the oversight and approval of the FISA court. Section 1809 of FISA expressly provides that "[a] person is guilty of an offense if he intentionally - (1) engages in electronic surveillance under color of law except as authorized by statute. . . ." And Section 2511(2)(f) provides that FISA "shall be the exclusive means by which electronic surveillance . . . may be conducted." Thus, a person has broken the law if -- as the President admits he did -- he orders eavesdropping on Americans without complying with the warrant requirements of the statute. Period.

The Administration admits that it did just that -- that the President ordered exactly the warrantless eavesdropping which FISA makes it a criminal offense to engage in. The Administration does not deny this fact. They admit that the eavesdropping they engaged in is exactly the eavesdropping for which FISA requires judicial approval, but defend themselves only by claiming that they had the legal right to engage in this eavesdropping without complying with the law. Here is Alberto Gonzales making this precise admission at his December 19, 2005 press briefing with Gen. Hayden:


Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires.


That is Gonzales admitting that the warrantless eavesdropping they engaged in is the type for which FISA requires judicial approval. By definition, there is no investigation needed to determine whether the Administration engaged in warrantless eavesdropping prohibited by FISA because that fact is not in dispute.

In defending itself, the Administration is offering only legal arguments -- not factual disputes -- as to why it had the right to eavesdrop without complying with the law (namely, that the President has inherent authority to eavesdrop even if the law prohibits it, and that Congress gave him implicit permission to eavesdropping outside of FISA when it enacted the AUMF). But the Administration is not denying -- and has never denied -- the fact that it engaged in the very warrantless eavesdropping covered by FISA.

Thus, no investigation could even conceivably shed further light on the question of whether the President broke the law. We know he did that. The sole question which Senators have to answer is what they think the consequences ought to be, if any, for a President to order eavesdropping on Americans citizens which Americans, through their Congress, prohibited by law.

An investigation cannot answer the question as to whether U.S. Senators ought to take a stand against deliberate and ongoing lawbreaking by a President. Only U.S. Senators can answer that question, and they already have all the facts that are relevant to that question already before them. Claiming that they need further "investigation" before taking a position is nothing short of an abdication of their responsibilities, an obvious tactic for avoiding the question of whether they oppose lawbreaking by the President.

MYTH/EXCUSE NUMBER TWO: Republicans want this scandal to persist because it benefits them politically.

Ever since this scandal emerged, Republicans have been wallowing in the bravado of claiming that they "welcome" this scandal because it will benefit them politically, and they continue to engage in this chest-beating in the hopes that Democrats will be intimidated into walking away meekly from the President's law-breaking. Just yesterday, National Review's Senior Editor Ramesh Ponnuru boasted that Republicans were "delighted" by the Censure Resolution, and Glenn "Instapundit" Reynolds gleefully linked to that item and smugly added: "Delight is pretty much all that I've observed." Many Democrats actually seem to be shaken by this sort of cheap and transparent self-defensive bluffing.

The conduct of Bush supporters from the very beginning of this scandal, as well as an unbroken string of public opinion polls, reveal just how false and baseless that pretense is. While boastfully claiming that they "welcomed" an open and full discussion of the NSA scandal, the Republicans have worked feverishly to kill off every proposed Congressional investigation and to sweep this scandal as quickly as possible under the rug, never to be heard from again.

They furiously lobbied Republicans on the Senate Intelligence Committee to vote against an investigation into this program. They have been working endlessly to forge an agreement with Congress to render their program legal in order to stave off the investigation by the Senate Judiciary Committee. And after Sen. Feingold introduced his Censure Resolution on Sunday morning, Sen. Frist was on the Senate floor less than 24 hours later trying to force an immediate vote, before anyone could even read the Resolution, let alone debate the proper remedy for the President's law-breaking. In sum, while claiming that they will reap great political benefits from this scandal, they have done everything possible to conceal the President's actions, block investigations, and prevent a public debate on these matters.

Those are most assuredly not the actions of a political party which wants to keep this issue in the spotlight. It the opposite - frenzied and desperate attempts to conceal what the President did and to prevent any attention from being paid to this scandal. As I have noted many times, public opinion polls have repeatedly shown that pluralities of the public believe that the President broke the law and majorities oppose eavesdropping on American citizens without warrants. Basic logic dictates that, for Republicans, there is nothing to be gained -- and much to be lost -- from a scandal based upon the deliberate and repeated law-breaking by a highly unpopular President, all in order to spy on Americans in secret rather than with the judicial oversight required by law.

It is critical that Democrats recognize that we are not in 2003 anymore. George Bush is a wildly unpopular President whom the public neither likes nor trusts. The public overwhelmingly believes that the President deliberately made false statements to induce the nation into war and that he cannot be trusted. It is nothing short of transparent delusion to suggest that Americans -- outside of the dwindling number of blindly loyal Bush followers -- will somehow be offended by Democrats objecting to Bush's violations of the law, or by demanding that he not eavesdrop on American citizens in secret, just as the law, for 30 years, has prohibited.

Bush followers continuously try to perpetrate the myth that Bush is a beloved President who enjoys support from most Americans, and therefore Democrats should be afraid to stand up to him, especially on issues of national security. Just yesterday, Glenn Reynolds -- whose blog always features the most up-to-date display of false pro-Bush talking points -- wrote a post defending the plainly false, triumphant statements he made back in April, 2003 about the Iraq War and, in doing so, he spit out this bit of revealing delusion:


I had actually planned not to rub this in -- the "antiwar" movement has shrunk to such a pitiful remnant of its not terribly impressive former self that it hardly seems worth it.

Polls show that the vast majority of the country oppose the war in Iraq and believe it was a mistake. The percentage of Americans who are anti-war has steadily and rapidly increased and continues to rise. But in the starkly delusional and propagandizing mind of the Bush follower, President Bush's war policies enjoy the support of an overwhelming proportion of Americans and only a few enclaves of crazed, marginalized radicals oppose him. Many Democratic Senators -- beaten around for several years after 9/11 by Bush's now-dead popularity -- also seem to have these false premises still engrained within them.

But all of that is just myth, pure delusion. The increasingly marginalized and radical views are those of Bush followers, not Bush opponents. The ethos of the country has changed not just on the margins, but fundamentally. It may be the case that in 2003, there was a rational argument to make that political calculations militated against standing up to the President's law-breaking. The fantasies of Bush followers notwithstanding, it is not 2003 anymore. It is long past time for Democrats to stand up to and firmly oppose the most radical elements of this Administration. And there are few elements more radical than the President's deliberate decision to break the law.

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