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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.

Thursday, March 23, 2006

Waiting for the non-existent NSA investigation

(updated below)

Some significant NSA scandal developments and issues of note:

(1) Democratic Senators, such as Feinstein and Murray, continue to issue statements claiming that they cannot decide their position on the Censure Resolution until an investigation (which isn't occurring) is complete. Along the same lines, Jon Henke at QandO, who has expressed opposition to the illegality of the warrantless eavesdropping program in the past, agrees with what I said yesterday in my post about the fact that it is inexcusable that Republicans have blocked any meaningful investigation into the NSA program, but Jon also said that it was "ridiculous" for me to argue that no investigation was needed in order to decide whether censure was appropriate.

As I made clear, I am not arguing against an investigation. To the contrary, I spent three weeks before all of the Republicans on the Intelligence Committee voted against an investigation urging that one be conducted and trying to do everything possible to induce one of the Committee Republicans to vote in favor of holding hearings. But none did, and so the reality is that no investigation is occurring. My argument is not that we shouldn't have an investigation, but that none is needed to know that the President broke the law, because all relevant facts on that question are already known.

Thus, anyone who claims that an investigation is needed before being able to take a position on the Censure Resolution (or, even more irrationally, those who claim that no Senator can take a position unless they were fully briefed on the program), should have to answer this question:

Specifically, what facts remain to be discovered that are relevant to the question of whether the President broke the law when ordering warrantless eavesdropping on Americans?

Nobody who claims that we need an "investigation" before being able to know if the President broke the law ever specifies which relevant facts remain to be discovered. As I indicated yesterday, there are numerous unanswered questions as to the extent and scope of the warrantless eavesdropping, but no unanswered questions that are relevant to the question of whether the program is illegal.

Can someone -- anyone -- who thinks otherwise -- who believes that some sort of investigation or a secret briefing is needed before one can take a position on censure -- please identify exactly which facts are unknown that need to be known before being able to determine the legality or illegality of the NSA program?

(2) Law Professor Glenn "Instapundit" Reynolds' posts become more mindlessly partisan and bereft of logic by the day, which is really saying something since they didn't exactly begin at a particularly lofty or scholarly place. Yesterday, Instapundit referenced a movement to "censure" Jimmy Carter due to political activism in which Carter has engaged in the foreign policy area, and Instanpundit issued this judgment:

Well, it's no dumber than Russ Feingold's.

Instapundit sees no material difference between: (a) a resolution to censure a sitting President for repeated, deliberate and ongoing violations of the law and (b) a resolution to censure a private citizen for views he expresses on foreign policy matters. But he wants to you know that he's an Independent, not a Republican, and always remains far above partisan impulses (h/t Insta-monitor Zack).

(3) Another prong of the NSA scandal -- another one that can't be killed off by Pat Roberts and Bill Frist -- has emerged:

The company that publishes the Oregonian newspaper in Portland has filed a motion in U.S. District Court in Oregon to unseal documents in a pending case that alleges the Bush administration illegally intercepted international phone conversations between the codirector of an Islamic charity and his two lawyers in the United States.

In a motion filed Friday, lawyers for the Oregonian Publishing Co. argued that it is in the public interest to know the contents of documents that could prove the existence of a potentially illegal domestic spying program.

"This appears to be the first case in which documents have been filed with the court demonstrating the National Security Agency's practice of wiretapping private conversations," said Charles F. Hinkle, a lawyer for the publishing company. "We are not interested in the content of the attorney-client communications. We are interested in what the government did" . . . .

Hinkle says the Oregonian and the public deserve full disclosure.

"If the government carried out an illegal and unconstitutional program," he said, "then we think it's very important that the public know about that. "

Despite the best and most corrupt efforts of the White House and their Republican Congressional servants, we are going to find out, one way or the other, whether the Government eavesdropped on Americans who have nothing to do with terrorists and/or on their purely domestic communications. It doesn't matter how many Committee investigations are squelched or how many Nixonian laws are passed to render legal the President's illegal conduct. There are too many mechanisms for this information to emerge for it to remain concealed. Congratulations to The Oregonian for acting like a newspaper should.

(4) Arlen Specter issued a somewhat cantankerous statement which at least sounds like he isn't anywhere near ready to call off the Judiciary Committee's ongoing inquriy into the legality of the NSA program:

A vocal Republican critic of the Bush administration's eavesdropping program will preside over Senate efforts to write the program into law, but he was pessimistic Wednesday that the White House wanted to listen.

"They want to do just as they please, for as long as they can get away with it," Senate Judiciary Chairman Arlen Specter, R-Pa., said in an interview with The Associated Press. "I think what is going on now without congressional intervention or judicial intervention is just plain wrong."

But, Specter said, the committees haven't gotten full briefings on the program, instead choosing to create small subcommittees for the work. . .

"The intelligence committees ought to exercise their statutory authority on oversight, but they aren't," Specter said. "The Judiciary Committee has acted. We brought in the attorney general. We had a second hearing with a series of experts, and we are deeply involved in it."

And he re-iterated his opposition to the Dewine Nixon Law designed to render legal the Administration's lawbreaking:

DeWine, however, wants to give the administration as much as 45 days to operate without a court warrant. If at any point the attorney general has enough information to go to the intelligence court, he must.

Under that approach, Specter said the administration can still "roam and roam and roam, and not find anything, and keep roaming. ... I think that's wrong."

Specter said he hopes there will be a vote sometime in May on all of the pending legislative proposals relating to the NSA scandal, which includes the Censure Resolution. Someone may want to tell Democratic Senators that they're going to have to take a position sooner or later on these matters without being able to wait for the non-existent investigation that they say they are waiting for. Isn't it quite obviously better to advocate for the Resolution now in order to build public support for it? Speaking of which . . .

(5) Even Joe Lockhart, the former Clinton press secretary, recognizes that Republicans are transparently bluffing when they claim they want this scandal to persist. As The New York Observer reports:

[Lockhart] sees no political downside to Senator Feingold’s proposal—and likewise sees much desperation in the Republican spin that it would be another self-inflicted Democratic wound that would haunt the minority party in the fall elections. All the G.O.P. bluster about an early vote on the Feingold proposal to smoke out weak-sister Democrats for elimination in November, Mr. Lockhart said, “is complete nonsense.”

He said: “One simple rule of politics is that the more ferociously you’re pushing your talking points, the less you believe in them. The Republicans jumping so hard on this tells you that they believe they’re in a really vulnerable position—that this issue is not the winner they thought it was.”

Similarly, former DNC press secretary Terry Michael describes exactly the problem Democrats face:

“The fear factor inside the Democratic Party is appalling,” he added. “You’ve got these small-minded Democratic-consultant-driven political leaders, and then you’ve got real neocons who refuse to listen to the base of the party …. You have these voices of unbridled ambition—Hillary Clinton first among them—who are asking the base to nominate them, when they’re not even listening to the base when it comes to the most important issue in American politics today.”

H/t here to Greg Sargent, who adds his own excellent analysis that is highly worth reading in full:

More and more Dem strategists are arguing that Dems need to stop tripping over their own caution every single time the GOP says they've got a winner on their hands -- after all, the Republicans can always be counted on to say that, regardless of whether they even believe it -- but it's especially refreshing to hear a Clintonite saying so.

This could be significant. If even former Clintonites, known for their caution and political calculations, recognize that the NSA scandal is a serious political threat to Republicans and that their bravado to the contrary is just bluffing, this recognition may be gaining traction.

UPDATE: I wish I had time to comment extensively on this post from conservative-libertarian John Cole -- in which he explains why his "20 year affair with the Republican party is coming to an end" -- but since I don't, I will instead urge you to read it. Cole is not some fringe theory-libertarian or doctrainaire Goldwater conservative whose numbers are quite small. Instead, he represents a type which makes up a big bulk of the Republican Party. He's a common sense conservative who basically believes that the Government should, when possible, stay out of our lives and that we should err on the side of restrained Federal Government intervention.

As the NSA scandal among many other things illustrates (and, from what I can tell, the real wake-up call for Cole was the Schiavo travesty), the Bush Administration has been operating for many years from the opposite premise, and conservatives like Cole are feeling extremely alienated from the comprehensively non-conservative Republican Party.

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