Follow-up on the Gonzales questions

Thank you to everyone who left comments and who e-mailed suggestions, revisions, additions, corrections, etc. in response to the draft set of questions I posted. They were genuinely very helpful and insightful, and I am incorporating a lot of them into a new draft which I hope to post later today. If you have more, please e-mail them or leave them in the comments section to the posts containing the questions.

We are making some progress trying to obtain access to members of the Senate Judiciary Committee in order to convey the questions we want asked and how we want them to be asked. Hopefully, I'll have more updates on this in the next day or so, but it's possible that we may need some blogospheric encouragement of certain Senators in order to accomplish this.

I really think the media is starting to smell some blood here. Every day, particularly in The Washington Post, there is a new component of the story which, by itself, independently adds to the scandal. The Gonzales questioning on February 6 is not the culmination but only the starting point for the investigation into this whole affair. It is definitely time, as I posted earlier today, for the media to pay some more attention to the deceit/falsehood component of this scandal.

A few items to note about the feedback I received from the questions and about the hearings generally:

(1) The April 20, 2004 statement from the President during his speech in Buffalo (h/t Anonymous Liberal via e-mail) ought to be used over and over. His assurance there that the Government always eavesdrops only with court orders is unambiguously false and contains no wiggle room. It is a case of deliberate deceit as he campaigned for re-election and for renewal of the Patriot Act, and regardless of one's views on the merits of warrantless eavesdropping, Americans have a rather deeply ingrained sense that it is wrong for the President to outright lie to the public about an important matter such as this.

The text of that speech is posted on the White House's website, but if anyone knows how or where to obtain a copy of the videotape, please leave a comment or e-mail me. (UPDATE: The video from that clip is here; I know this got some play when the scandal first began but it would likely do a lot more good now).

(2) One of the principal points made in the comments responding to my draft list of questions is that it's important not to have the questioning of Gonzales be overly legalistic or complex. I agree, but want to make a couple of points about this.

It is inevitable that the focus of this part of the hearings will be primarily legal. The witness is the Attorney General and he is there to discuss the Administration's legal theories as to why it had the right to eavesdrop outside of FISA. Many of you formulated questions about the operational aspects of the program, but those are going to be investigated by the Intelligence Committee with different witnesses. The focus of the questioning on Monday will necessarily be legal.

Moreover, there is a difference between legal discussions and legalistic ones. The crux of this scandal is the legal theories which the Administration has embraced, and if approached the right way, they need not bore everyone to death. To the contrary, the central question -- whether the President has the right to act in violation of the law and to claim that neither Congress nor the courts can limit his power -- is one that is quite dramatic and resonates with Americans, who confronted identical questions with Watergate and Iran-Contra.

I purposely did not devote any questions to esoteric and boring legalisms which are more appropriately resolved in legal briefs rather than in televised hearings -- such as whether the AUMF should be read to impliedly exempt the Administration from FISA. Those type of questions, in addition to being boring and impenetrable to large segments of the public (and to even larger segments of mainstream journalism), are also really irrelevant, because the Administration claims that it has unlimited power regardless of the AUMF to eavesdrop on Americans without warrants -- and to do anything else relating to the terrorism threat. That is the danger posed by the Administration and that is something which the public can understand.

That's why, in my view, the principal objective with these hearings is to force that theory out into the open by compelling Gonzales to acknowledge clearly that: (a) the Administration believes it has the unlimited power to engage in any activities relating to the terrorism threat with no possible checks or limitations from Congress or the courts; (b) this power includes engaging in activities even when Congress makes engaging in those activities a criminal offense, as it did with warrantless eavesdropping; and (c) the theories of power espoused by the Administration would enable it to engage in a whole parade of extreme behaviors -- as applied to U.S. citizens and within the U.S. -- which will illustrate just how radical and threatening this Administration has become.

But Gonzales isn't going to just waltz into the hearing and start acknowledging that. It's going to take work to compel him to admit these things -- which means methodically examining the basis for his legal theories, forcing him to articulate the legal principles underlying the Administration's views with regard to specific matters, and then extending those principles to all sorts of other scenarios. Ultimately, there is no coherent way for Gonzales to argue that the Administration is free to eavesdrop on American citizens without any interference from Congress without articulating a principle and a theory that places broad, unchecked Presidential power in George Bush far beyond the realm of eavesdropping. Making that clear ought to be, in my view, the paramount goal of this examination.

That way, this scandal will forever be about whether George Bush has the monarchic power he claims -- to violate the laws of Congress and to act with no checks from Congress or the courts. Those are legal issues but they need to be confusing or boring.

(3) John Aravosis has a post analyzing the latest NSA scandal poll, from NBC News/Wall St. Journal, which was treated by the media as though it contained relatively good news for Bush but which actually reveals just how potentially destructive this scandal could be. Here are two significant questions from this poll (.pdf):

Do you think that the Bush administration should conduct wiretaps of American citizens who are suspected of having ties to terrorists without a court order, or do you think that the Bush administration should be required to get a court order before conducting these wiretaps?

Should be able to wiretap without court order ............... 41
Should be required to get a court order before wiretapping .. 53
Depends (VOL).......................................................... 4
Not sure............................................................... 2


How concerned are you that the Bush administration's use of these kinds of wiretaps could be misused to violate people's privacy--extremely concerned, quite concerned, not really concerned, or not concerned at all?

Extremely concerned ........................... 31
Quite concerned ................................... 25
Not really concerned............................ 22
Not concerned at all............................. 21
Not sure................................................ 1

And, for those fearful Democrats on the Committee and beyond, Carpetbagger points out that the same poll reflects that a very sizable majority (58%-34%) wants the Democrats in Congress to ensure that Republicans and Bush "do not go too far in pushing their agenda" rather than "work in a bipartisan way with Republicans to help pass President Bush's legislative priorities so that we do not have gridlock."

Those are some rather impressive numbers. A solid majority believes that warrants ought to be required even if the eavesdropping is only on those "suspected of having ties to terrorists." And 56% are either extremely concerned or quite concerned about the potential for abuse.

And, most significantly, none of these questions ask whether the public believes that the President has the right to engage in warrantless eavesdropping even where Congress passed a law specifically stating that it is a criminal offense to eavesdrop without judicial warrants. My guess is that a much, much higher percentage of people would disapprove if they knew of that fact and were asked about it.

The Administration’s pattern of deceit re: eavesdropping

One of the many pressing questions in the NSA scandal is this: If the Administration really believed that the AUMF gave it the authority to eavesdrop outside of FISA, why did it never say so, even as Congress was plainly operating under the assumption that the Administration was eavesdropping only with the judicial oversight required by FISA?

Not only did the Administration never claim that it had authority to eavesdrop outside of FISA (that is, it never claimed this until it got caught doing so), far worse is that the Administration repeatedly and deliberately misled both the Congress and the public into believing that it was always complying with FISA and that it was eavesdropping only with the judicial oversight and approval required by the law.

The Administration’s deceit took place over several years and in many different venues. The record of this deceit should always begin with this statement by George Bush on April 20, 2004, as part of a speech he delivered in Buffalo, New York:

Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.

That statement is an outright falsehood, and it is extremely serious. The President was attempting to address civil liberties concerns regarding the Administration’s wiretap activities, and he stated, falsely, that "any time you hear the U.S. Government talking about wiretaps, it requires – a wiretap requires a court order." He did not limit his assurances to eavesdropping conducted under FISA. To the contrary, he went out of his way to made clear that he was talking about all eavesdropping, and thus emphasized that a court order is required -- to use his words -- "any time you hear the United States talking about wiretap."

Why is George Bush allowed to make baldly false statements to Americans about matters of the gravest importance? Why is there not more outrage and controversy over the fact that the President stood up in front of the country and lied about the Government’s eavesdropping activities by assuring us that the only wiretaps that were done on American citizens first required a court order?

That question is not answered by claiming that national security required the President not to divulge the eavesdropping program, because he did not have to say anything at all. When he made his false statement, he wasn’t responding to a question. This statement was part of his pre-scripted speech. And as part of that speech, in an effort to campaign for his own re-election and for renewal of the Patriot Act, he falsely assured Americans that there was no ground for worrying about excesses with regard to eavesdropping because the only eavesdropping that is done is done under judicial oversight.

One's views of warrantless eavesdropping ought to have nothing to do with one's views of the President's false and misleading statements on this issue. Bill Clinton was impeached ostensibly for lying about a much less serious matter, and yet here is George Bush lying to the country by falsely assuring us that all eavesdropping conducted by the Government is done only with judicial approval. What possible justification is there for George Bush to be able to make false statements of this sort?

The President’s Attorney General engaged in the same deceit. As The Washington Post reported this morning (and as the blogosphere has long discussed), Attorney General Gonzales was specifically asked by Sen. Russ Feingold at Gonzales’ confirmation hearing in January, 2005 whether the President had the power to engage in warrantless eavesdropping, and Gonzales assured Feingold in reply that the Administration does not engage in activities forbidden by Congressional law and the question was therefore "hypothetical." Here is the unbelievably clear exchange referenced by the Post article, which arose from extremely prescient questions from the increasingly impressive Sen. Feingold:

FEINGOLD:

Let me switch to a subject that's come up a lot here today.

In the August 2002 memorandum, the Justice Department concludes that the president, as commander in chief, may authorize interrogations, that violate the criminal laws prohibiting torture and that the Congress may not constitutionally outlaw such activity when it's authorized by the president. This is the claim, essentially, that the president is above the law so long as he is acting in the interests of national security. . . .

You also, I am told, said that many presidents have asserted the power not to enforce a statute that they believe is unconstitutional. But there is a difference between a president deciding not to enforce a statute which he thinks is unconstitutional and a president claiming to authorize individuals to break the law by torturing individuals or taking other illegal action.

So what I want to do is press you on that, because I think, perhaps, you've misunderstood the question. And it's an important one. It goes to a very basic principle of the country, that no one, not even the president of the United States, is above the law. . . .

The question here is: What is your view regarding the president's constitutional authority to authorize violations of the criminal law, duly enacted statutes that may have been on the books for many years, when acting as commander in chief? Does he have such authority? The question you have been asked is not about a hypothetical statute in the future that the president might think is unconstitutional; it's about our laws and international treaty obligations concerning torture. The torture memo answered that question in the affirmative. And my colleagues and I would like your answer on that today.

And I also would like you to answer this: Does the president, in your opinion, have the authority, acting as commander in chief, to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country?

GONZALES:

Senator, the August 30th memo has been withdrawn. It has been rejected, including that section regarding the commander in chief authority to ignore the criminal statutes. So it's been rejected by the executive branch. I categorically reject it.

And in addition to that, as I've said repeatedly today, this administration does not engage in torture and will not condone torture. And so what we're really discussing is a hypothetical situation that...

FEINGOLD:

Judge Gonzales, I've asked a broader question. I'm asking whether, in general, the president has constitutional authority -- does he at least in theory have the authority to authorize violations of the criminal law when there are duly enacted statutes, simply because he's commander in chief? Does he have that power?

GONZALES:

Senator, in my judgment, you phrase it as sort of a hypothetical situation. I would have to know what is the national interest that the president may have to consider.

What I'm saying is, it is impossible to me, based upon the question as you've presented it to me, to answer that question.

So, in response to the specific question from Sen. Feingold as to whether the President has the authority "to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country" - indisputably exactly what the President had ordered three years earlier, as Gonzales knew -- Gonzales, under oath, assured Feingold that this was purely a "hypothetical situation" and he therefore could not answer.

That is the same falsehood George Bush told the country in his Buffalo speech – that the Administration was not eavesdropping on Americans without a warrant even though it had been doing exactly that for three years.

Worse still, Sen. Feingold expressly asked Gonzales to make a public commitment that he would inform the Senate should the Administration decide that it would engage in activities prohibited by a Congressional law on the ground that the Administration thought the law was unconstitutional -- exactly, precisely what the Administration did with FISA -- and Gonzales made that commitment:

FEINGOLD:

I recognized and I tried to make that distinction, Judge, between electing not to enforce as opposed to affirmatively telling people they can do certain things in contravention of the law.

GONZALES:

Senator, this president is not -- it's not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.

FEINGOLD:

Finally, will you commit to notify Congress if the president makes this type of decision and not wait two years until a memo is leaked about it?

GONZALES:

I will commit to advise the Congress as soon as I legally can, yes, sir.

After overtly misleading Feingold by assuring him that warrantless surveillance in violation of FISA was nothing more than a "hypothetical situation," Gonzales then gave Feingold a commitment which, as soon as he gave it, was violated – namely, that he would advise the Senate in the event the Administration engaged in such activities, rather than having the Senate only find out by virtue of a leak.

The Administration’s deceit on this eavesdropping issue began shortly after it started eavesdropping in violation of FISA. At the July, 2002 Senate Intelligence Committee hearings to debate the FISA amendments introduced by Senators Kyl, Schumer and DeWine, the Justice Department’s James A. Baker -- also under oath -- falsely assured the Committee that the Senate could liberalize FISA without worrying about incursions into civil liberties:

So you would be, you know, connecting electronic surveillance and potentially physical search of those targets and that raises all the same kinds of civil liberties questions that FISA does to begin with. But nevertheless, you would have had--before you get to that point, you would have had a finding by a neutral and detached magistrate, and indeed in this case a sitting federal judge, district court judge, that all of the requirements of the statute are met and that there's probable cause to believe that this individual is engaged in international terrorism activities, or activities in preparation therefor.

A statement more starkly false is difficult to imagine. What Baker swore was true to the Committee (and, by implication, to all of us) -- namely, that no eavesdropping occurs without a federal judge first finding that all of the requirements of FISA were met -– was completely false. Unbeknownst even to the Senate Intelligence Committee, eavesdropping without warrants had been ordered by the President many months earlier.

And, independent of all of these plainly false statements from George Bush and his Administration, the Administration, through its deeds, also repeatedly and deliberately misled Congress, as I documented several days ago, by affirmatively leading the Congress to believe that it was eavesdropping only in compliance with FISA, and that FISA amendments were therefore necessary in order to expand the Administration’s eavesdropping powers. This was done not only by the DoJ's Baker, but also by the representatives of the CIA and FBI who attended the hearings, both of whom led the Committee to believe that all eavesdropping is done only within the parameters of FISA.

All of this deceit is, independent of the law-breaking issues, scandalous in itself. Lying under oath to Congress is itself a criminal offense – as Gonzales plainly did when answering Feingold and as Baker likely did when he testified that all eavesdropping requires a warrant. And it is the greatest breach of public trust for George Bush to urge his own re-election and renewal of a highly controversial law by knowingly making false statements to the public designed to assure us of things which are simply false.

Beyond the deceit, all of this underscores the glaring weakness, the fundamental falsity, of the Administration’s entire defense in this NSA scandal. If, as the Administration now claims, it clearly had authority under the AUMF to eavesdrop in violation of FISA, why did it never say so – even as the Congress was clearly operating on the assumption that it was complying with FISA, and even as Congress was debating totally unnecessary amendments to FISA? At any time, the Administration could have simply told Congress: "there is no need to amend FISA to give us increased eavesdropping powers because you already have authorized us to exercise unlimited eavesdropping powers when you enacted the AUMF."

And worse than never saying this, the Administration ran around in multiple venues and on many different occasions, over the course of several years, giving false assurances that it was complying with FISA. That is not the conduct of officials who believe that what they are doing is legal and proper. People lie to conceal their behavior only when they believe that their behavior is wrong, not when they believe their behavior is justifiable.

And there is no conceivable justification for this repeated deceit. The Administration could have easily told Congress that it interpreted the AUMF as giving it unlimited eavesdropping authority, and certainly could have refrained from falsely assuring the public that it eavesdrops only with judicial oversight and approval. There were numerous public discussions about the Administration's eavesdropping activities, the most detailed and revealing of which were from President Bush as he campaigned for re-election, and the Senate itself, both in 2001 and 2002, was openly debating what standards ought to govern FISA. The notion that it would harm national security for the Administration to state then what it is now claiming -- i.e., that it believed the AUMF gave it unlimited eavesdropping powers -- could not even be argued with a straight face.

Most presidential law-breaking scandals in our nation’s history have two components – the law-breaking itself, followed by the deceit and lies designed to conceal the law-breaking. The Administration’s law-breaking has been the subject of significant attention. Its pattern of deliberate deceit deserves a lot more attention.

Items of interest

A few noteworthy matters:

(1) QandO, one of the more intelligent and interesting conservative-ish blogs, has an informative post regarding the McCain-Coburn legislation to require up-or-down votes on "earmark" spending - i.e., pork projects. Aside from the symbolic whiff of corruption which these sorts of wasteful, politically self-serving expenditures create, they also now account for billions of dollars in deficit spending.

Unsurprisingly, most Senators in both parties are highly resistant to this legislation, because virtually all of them use earmarks as thinly disguised bribes, abusing public money to buy votes in exchange for gifts to their constituents. This resistance reflects quite poorly on both parties, but it reflects particularly poorly on Republicans, who have long touted themselves as the party of fiscal discipline and spending restraints and yet have presided over a truly astounding and wildly irresponsible explosion in deficit spending ever since they have controlled all branches of the Government.

(2) Chuck Hagel joins the chorus of Republican and conservative voices expressing opposition to the NSA eavesdropping program. And as ReddHedd details, this superb article from Newsweek documents that substantial numbers of highly conservative appointees in the Justice Department were extremely disturbed by, and relentlessly fought against, the President-as-Monarch legal theories promoted by John Yoo and Dick Cheney aide David Addington.

A major part of this NSA story that has thus far been quite under-reported is the widespread and pervasive dissatisfaction among many, many conservatives with the Administration’s theories of unchecked presidential power.

(3) John Cole discusses another in the endless hypocrisies and unwarranted legislative intrusions by the Religious Right – this time trying to promote legislation to prevent employers from discharging health care workers who refuse to perform required services based on their religious beliefs and/or banning health care regulatory agencies from requiring that such services be performed. As the Washington Post reports:

About half of the proposals would shield pharmacists who refuse to fill prescriptions for birth control and "morning-after" pills because they believe the drugs cause abortions. But many are far broader measures that would shelter a doctor, nurse, aide, technician or other employee who objects to any therapy. That might include in-vitro fertilization, physician-assisted suicide, embryonic stem cells and perhaps even providing treatment to gays and lesbians.

I thought conservatives believed in the free market and the right of employers to make their own personnel decisions without interference from the Government. John’s sentiments seem pretty much on point:

There is little room for nuance in my opinion on this. If your religious beliefs interfere with your job providing any and all desired or required care for a patient, you have several options- change your job, change your religion, suck it up and hope yours is a forgiving God.

Denying people care because it upsets your sensibilities should not be allowed, and those who choose to do so should not be protected by legislation, they should have their licenses revoked. People who refuse to provide mainstream and accepted medical treatment to patients because of their own religious beliefs should no longer be considered doctors- they can hang a plaque outside their door that says the
following:

"Joe Schmoe- Unlicensed Faith Healer."

(4) For those who haven’t seen it already, there is an ongoing attempt to induce the advertisers on Chris Matthews’ MSNBC show to stop advertising due to some plainly inappropriate, offensive and just plain stupid comments Matthews has made in the recent past. He added to that list last night when he asked The New York Times’ Elisabeth Bumiller -- before any hearings have been held and with no basis whatsoever – "How is the president turning the NSA surveillance question into a winner politically?" It's difficult to choose the worst Matthews comment (guffawing with the painfully unfunny Don Imus about "Bareback Mountain" comes close for me), but if I had to choose, I think it would be this:

"Everybody sort of likes the president, except for the real whack-jobs."

What makes Matthews a particularly deserving target is that MSNBC holds him out as an objective journalist, not an opinion commentator, and yet his views are so routinely and baselessly biased and so clearly journalistically inappropriate.

Questioning the Attorney General

The Senate Judiciary Committee has scheduled the first day of hearings for its investigation into the NSA eavesdropping scandal for Monday, February 6 (a week from today). The first (and only) witness for that day will be Attorney General Alberto Gonzales.

The focus of the questioning will be the legal justifications for the Administration’s decision to eavesdrop on Americans without the judicial oversight and approval required by FISA. The operational aspects of the eavesdropping program -- i.e., what type of eavesdropping was engaged in, the reasons why it was necessary to eavesdrop outside of FISA, etc. -- will be investigated by the Senate Intelligence Committee, in as-yet-unscheduled hearings to take place in both opened and closed session.

The Senate Judiciary Committee did not exactly display great skill and acumen in questioning witnesses during the Alito hearings. As a result, there is substantial concern about whether its members will ask the necessary and relevant questions of the Attorney General, and more importantly, whether they will do so in a way (including with follow-ups and documentation) which will elicit and reveal the Administration’s real theories of its own power, and highlight the contradictions underlying those theories, as opposed to simply allowing the Attorney General to breezily recite pre-prepared talking points without really being challenged.

I believe we should not leave it up to the members of the Judiciary Committee -- again -- to decide for themselves which questions will be asked. We should try to play an active role in demanding that the Attorney General be held accountable and that the real questions raised by this scandal be meaningfully explored.

Towards that end, I have created a preliminary list of what I believe are the ten most significant and pressing questions (although I admittedly cheated with the number of questions by employing a standard lawyer trick of packing in sub-parts to the questions, but at least I openly acknowledge my treachery). I hope anyone who has additions, revisions, changes or other ideas will add them over the next couple of days so that we can have a comprehensive list of the questions that ought to be asked and how those issues ought to be pursued, and then urge the Judiciary Committee to pursue them.

For the sake of manageability, I have divided the 10 questions into the following two posts -- first, questions 1-5, then questions 6-10. Judiciary Committee Chair Arlen Specter last week sent a list of fifteen questions to Attorney General Gonzales. Many of those are obvious questions and I constructed my list so as to not overlap with Specter’s list. Please leave any comments on this post, not the other two.

I believe the paramount objective with these hearings is to force out into the open the theories of Presidential power which the Administration has embraced in order to justify its transgressions of FISA -- not just as applied to eavesdropping but with respect to all decisions broadly relating to the question of how this country will respond to the threat of terrorism. Thus, the questions posed to Attorney General Gonzales should absolutely not be confined strictly to the question of the NSA eavesdropping program, but must explore how the Administration’s theories of its own power apply generally.

The Committee, with its questioning, must make clear to the public that this scandal is not about whether we should be eavesdropping on Al Qaeda, because everyone agrees that we should and must do that. That is why we have a law -- FISA -- which specifically authorizes eavesdropping on terrorists. Nobody opposes eavesdropping. The scandal is about -- and these hearings must therefore emphasize -- the scope of the President’s claimed powers, and specifically his claimed power to act without what the Administration calls "interference" from the Congress or the courts, even including -- literally -- engaging in actions which are expressly prohibited by the criminal law.

Questions 1-5

Question 1

In a September 25, 2001 Memorandum Opinion addressed to the Deputy Counsel to the President, John C. Yoo, then-Deputy Assistant Attorney General in the Office of Legal Counsel, wrote (emphasis added):

In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

(a) Does this paragraph reflect, or did it ever reflect, the position of the Bush Administration with regard to the President’s powers to respond to "any terrorist threat."

(b) If not, in what way does the Administration’s positions on this issue differ from that paragraph?

(c) What powers does Congress possess, if any, to regulate or limit "the method, timing, and nature" of the President’s response to the threat of terrorism?

(d) What powers does the judiciary possess, if any, to regulate or limit "the method, timing, and nature" of the President’s response to the threat of terrorism?

(e) Are there any limits at all on the President’s power to order actions as a response to threats of terrorism and, if so, what are those limits?

(f) In his Memorandum, Mr. Yoo wrote, quoting the Supreme Court opinion in Youngstown: "As Lincoln aptly said, '[is] it possible to lose the nation and yet preserve the Constitution?'" Does the Administration believe that, as Mr. Yoo suggested, that the threat of terrorism means that we must choose between preserving the Nation or preserving the Constitution?

Question 2

Does Congress have any power whatsoever to regulate or limit the President’s ability to order eavesdropping on either the international or domestic communications of American citizens? If so, what are those limits?

Question 3

Congress has been debating whether to renew all of the provisions of the Patriot Act. Some of the original Patriot Act provisions which are in dispute include those provisions that gave the Administration new surveillance and investigation powers, including those provisions:

(a) allowing the government to obtain secret court orders in domestic intelligence investigations to get all kinds of business records about people, including library records, medical records and various other types of business records whenever the Government certified that the records were "sought for" a terrorism investigation (section 215); and,

(b) expanding the National Security Letter (or "NSL") authority that was contained in Section 505 to enable the FBI to obtain certain types of records using NSLs, with no judicial review.

If Congress decides not to extend these provisions, and the Patriot Act is renewed and signed into law only once these provisions are eliminated, can the President nonetheless exercise those very powers on the ground that he has the authority to unilaterally decide our nation’s response to the terrorism threat regardless of what Congress allows or prohibits?

Question 4

In December of last year, Congress, over the administration’s objections, overwhelmingly passed a Defense Appropriations bill that included the McCain Amendment, which "prohibit[s] cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world":

(a) Does Congress have the legal authority to regulate and limit the treatment of detainees by the United States?

(b) Does the President have the power to order treatment of detainees which is prohibited by the McCain Amendment?

(c) After President Bush signed the McCain Amendment into law, the White House issued a "signing statement" in which the President stated:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

With regard to this paragraph in the signing statement:

(i) What are the "Constitutional limitations on the judicial power" with regard to the McCain Amendment?

(ii) What is "the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief" with regard to the McCain Amendment?

(iii) Does this mean, or is it the Administration’s position, that the question of how detainees will be treated is for the President alone to decide, and neither Congress nor the courts can limit the President’s power?

(d) Once the signing statement was issued with regard to the McCain Amendment, an article in The Boston Globe reported that a senior administration official made clear that the position of the Administration is that it has the power to violate the McCain Amendment if the President believes it is in the national interest to do so:

A senior administration official, who spoke to a Globe reporter about the statement on condition of anonymity because he is not an official spokesman, said the president intended to reserve the right to use harsher methods in special situations involving national security. . . .

But, the official said, a situation could arise in which Bush may have to waive the law's restrictions to carry out his responsibilities to protect national security. He cited as an example a ''ticking time bomb" scenario, in which a detainee is believed to have information that could prevent a planned terrorist attack.

''Of course the president has the obligation to follow this law, [but] he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case," the official added. ''We are not expecting that those two responsibilities will come into conflict, but it's possible that they will."

With regard to the McCain Amendment, is it the Administration’s position that the President has the power to "waive the law’s restrictions" if the President deems it in the national interest to do so?

Question 5

The Department of Justice ("DoJ") issued a Press Release on January 27 summarizing its legal position with regard to the NSA eavesdropping matter. In support of its position that "[t]he NSA activities described by the President are consistent with FISA," the DoJ identified two arguments: (i) the AUMF authorized the Administration to eavesdrop without the warrants required by FISA, and (ii) if FISA is found to restrict the Administration’s power to eavesdrop without warrants, then it is quite likely unconstitutional.

The DoJ issued a lengthier document on January 19, 2006 setting forth its legal defenses of the NSA program, and these same two arguments were the ones invoked in that document to explain why its NSA eavesdropping program did not violate FISA.

(a) Leaving aside any exemption provided by the AUMF, does the Administration acknowledge that the NSA eavesdropping authorized by the President’s Executive Order was the type of eavesdropping which is prohibited by FISA in the absence of judicial oversight and approval?

(b) The DoJ has issued numerous documents, and made multiple statements, setting forth its legal position with regard to this matter. In any of those documents or statements, has the DoJ ever claimed that the type of NSA eavesdropping ordered by the President is not within the scope of FISA?

Questions 6-10

Question 6

On January 16, you were interviewed on CNN by Larry King, and you were asked: "Are you assuring that American citizens with nothing to hide have nothing to worry about?" In response, you said:

"Well, again, as the president indicated, and I'm only talking about what the president described to the American people in his radio address, we're talking about communication where one end of the communication is outside the United States and where we have reason to believe that a party on that communication is a member of al Qaeda or is a member of an affiliate group with al Qaeda."

In your answer, you limited your assurances by making clear that you were "only talking about what the president described to the American people in his radio address."

The January 27 DoJ Press Release, in several different places, contains this same limitation on the Administration’s assurances that innocent Americans are not being eavesdropped on without warrants.

Without disclosing any operational details, are there other warrantless eavesdropping programs beyond what the President described which entail or permit warrantless eavesdropping on the communications of Americans?

Question 7

In June, 2002, Senator DeWine introduced legislation to lower the evidentiary showing required for obtaining FISA warrants targeted at non-U.S. persons from "probable cause" to "reasonable suspicion," and in response, the DoJ attorney who supervises the process for obtaining of FISA warrants, James A. Baker, submitted a Statement to the Senate Intelligence Committee, in which he indicated that the Administration was not prepared to support those changes because they were unnecessary and possibly unconstitutional.

(a) As of June, 2002, was Mr. Baker’s statement accurate that the "probable cause" standard in FISA had not created any barriers or problems which impeded the Administration from engaging in all of the anti-terrorism eavesdropping it wanted to engage in?

(b) As of the time the President ordered the NSA to eavesdrop outside of FISA, how many requests for eavesdropping warrants had the FISA court rejected in its history?

(c) In his Statement, Mr. Baker specifically thanked the Congress for creating a 72-hour window as part of the Patriot Act which allows eavesdropping during that time period without obtaining a FISA warrant. In praising that provision, Mr. Baker said that this window has "enabled the government to become quicker, more flexible, and more focused in going ‘up’ on those suspected terrorists in the United States," and "has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats."

Was Mr. Baker’s statements praising this 72-hour window as giving the Administration the speed and flexibility it needed an accurate reflection of the Administration’s view of FISA at the time?

(d) In the January 27 Press Release issued by the DoJ, the point was made several times that the 72-hour window is inadequate to enable the eavesdropping which the Administration claims it needs to engage in. Prior to the public disclosure of the NSA warrantless eavesdropping program, did the DoJ ever advise Congress that, contrary to Mr. Baker’s statement, the 72-hour warrantless window was actually insufficient and needed to be changed?

(e) If, as the DoJ now claims, the 72-hour window was insufficient and too cumbersome, why did it send Mr. Baker to specifically advise the Intelligence Committee that the 72-hour window in FISA was working well, rather than advise the Committee that this provision should be loosened or changed to fix any problems?

(f) Did the DoJ or the Administration generally ever ask Congress to amend FISA to redress what it now claims are inadequacies in the 72-hour window?

Question 8

In the Summer of 2002, not only Sen. DeWine, but also Senators Schumer and Kyl, sponsored legislation to amend FISA in order to expand the scope of the Administration’s eavesdropping powers. The statements by the Senators who spoke at the Hearings in favor of those proposed amendments, including Committee Chairman Bob Graham, leave no doubt that the Senators were operating on the assumption that FISA continued to govern and restrict the eavesdropping activities of the Bush Administration.

Senator Graham, for instance, opened the hearings by stating that the amendments were offered "for the purpose of reducing both the nature and scope of the showing the government must make to obtain a surveillance order against suspected terrorists inside the United States who are neither citizens nor legal resident aliens." Senator Schumer said that the U.S "can't do the surveillance we need to do" if it can’t meet the requirements of FISA. Senator Kyl said the amendments were necessary to "put this important tool into the hands of law enforcement and intelligence agencies here in this country so that we can add one more element to the protection of the American people."

Again and again, the Senators at this hearing said that in order to increase the Administration's eavesdropping powers, it was necessary to amend FISA -- clearly showing that they were operating with the belief that the Administration was eavesdropping only in compliance with the statute:

(a) Why didn’t the Justice Department simply tell the Senate that it was not necessary to amend FISA in order to increase the Administration’s eavesdropping powers because the Administration already had unlimited eavesdropping authority under the AUMF?

(b) According to the remarks of both Senator Schumer and Senator Kyl, the Attorney General specifically indicated his approval for these FISA amendments. Why did the Justice Department encourage the Senate to spend its time and energies expanding the scope of FISA if the Administration already believed it had all the authority it needed to engage in limitless eavesdropping under the AUMF?

(c) In his testimony before the Committee, the DoJ’s James Baker sought to assure the Committee that expanded eavesdropping would not pose any threats to civil liberties by stating the following:

So you would be, you know, connecting electronic surveillance and potentially physical search of those targets and that raises all the same kinds of civil liberties questions that FISA does to begin with. But nevertheless, you would have had--before you get to that point, you would have had a finding by a neutral and detached magistrate, and indeed in this case a sitting federal judge, district court judge, that all of the requirements of the statute are met and that there's probable cause to believe that this individual is engaged in international terrorism activities, or activities in preparation therefor.

At the time, wasn’t Mr. Baker’s statement to the Committee false because he assured them that eavesdropping could only occur when you have "a sitting federal judge, district court judge" certify "that all of the requirements of the statute are met?"

(d) Isn’t it true that these Senators – Schumer, Kyl, DeWine, Graham – who thought in 2002 that FISA needed to be amended in order to expand the Administration’s eavesdropping powers, were operating on the false assumption that the Administration was only eavesdropping in compliance with FISA?

(e) Is it accurate to say that the FISA amendments which these Senators had introduced and were publicly debating were actually entirely unnecessary in order to expand the Administration’s eavesdropping power, because the Administration had already decided that had authority to eavesdrop beyond the parameters of FISA?

Question 9

Various members of Congress, including then-Majority Leader Tom Daschle, have stated that the Administration specifically requested that Congress insert a provision into the AUMF authorizing the Administration to use war powers within the United States, but Congress refused to include such a phrase, and the AUMF does not include such an authorization.

(a) Is that an accurate rendition of events – that the Administration requested, but Congress refused, the inclusion in the AUMF of a clause authorizing the Administration to use its war powers within the U.S.?

(b) What is the legal meaning or significance of that refusal by Congress, if any? Would it have made a difference one way or the other if Congress had agreed to include that provision rather than refused to include it?

(c) Despite that refusal, is it the Administration’s position that it has the authority to exercise its war powers within the U.S.?

Question 10

In its January 27 Press Release, the DoJ argued that:

In its Hamdi decision, the Supreme Court ruled that the AUMF also authorizes the "fundamental incident(s) of waging war." The history of warfare makes clear that electronic surveillance of the enemy is a fundamental incident to the use of military force.

(a) Is it the position of the Administration that, by virtue of the AUMF, the Administration is authorized to employ all of the "fundamental incidents of waging war?"

(b) Is it the position of the Administration that it is authorized to employ all of the "fundamental incidents of waging war" not only abroad, but also here within the United States?

(c) It is the position of the Administration that it is authorized to employ all of the "fundamental incidents of waging war" not only against foreign nationals, but against U.S. citizens as well?

(d) Is it the position of the Administration that the President would have these powers – namely to employ all of the "fundamental incidents of waging war" both abroad and here in the United States – even if the AUMF did not give that authority to the President?

(e) Is it the position of the Administration that the "fundamental incidents of waging war" include: (i) eavesdropping; (ii) detention of individuals it believes are enemy combatants; (iii) interrogation; and (iv) indefinite incarceration, even without counsel, charges being brought, or a trial?

(f) Is the following a fair summary of the Administration’s view of the President’s power:

In responding to threats of terrorism, the President has the power: (i) to eavesdrop on American citizens both outside of and within the U.S., (ii) to detain them, (iii) to use any methods he wants to interrogate them, and (iv) to incarcerate them indefinitely without counsel or a trial -- and the President can do all of this, including to U.S. citizens and inside the U.S., without any ability on the part of Congress or the courts to interfere with or limit those activities in any way?

(g) Is it the Administration’s position that the President has the power to order any of those activities described in the previous question even if Congress passes a law making it a crime to engage in or order those activities against American citizens?

(h) Leave aside the question of what the Administration intends to do or not do -- Is it the Administration’s position that it has the power, legally, to eavesdrop on a U.S. citizen inside the U.S. with no warrant, detain that citizen with no trial or charges being brought, interrogate that citizen using even those methods outlawed by the McCain Amendment, and incarcerate that citizen indefinitely – and that it can do all of those things even if Congress enacts laws prohibiting those activities?

Putting the terrorist threat into perspective

(updated below - updated again with Jonah Goldberg's "response")

History Professor and author Joseph J. Ellis has an Op-Ed in The New York Times yesterday in which he points out what I consider to be one of the most important and under-recognized truths about the way in which we view the threat of terrorism:

My first question: where does Sept. 11 rank in the grand sweep of American history as a threat to national security? By my calculations it does not make the top tier of the list, which requires the threat to pose a serious challenge to the survival of the American republic.

Here is my version of the top tier: the War for Independence, where defeat meant no United States of America; the War of 1812, when the national capital was burned to the ground; the Civil War, which threatened the survival of the Union; World War II, which represented a totalitarian threat to democracy and capitalism; the cold war, most specifically the Cuban missile crisis of 1962, which made nuclear annihilation a distinct possibility.

Sept. 11 does not rise to that level of threat because, while it places lives and lifestyles at risk, it does not threaten the survival of the American republic, even though the terrorists would like us to believe so.

All of this seems obvious at this point. The total number of Americans killed by Islamic terrorists in the last 5 years -- or 10 years -- or 20 years -- or ever -- is roughly 3,500, the same number of deaths by suicide which occur in this country every month. This is the overarching threat around which we are constructing our entire foreign policy, changing the basic principles of our government, and fundamentally altering both our behavior in the world and the way in which we are perceived.

And yet, one almost never hears anyone arguing that the terrorism threat, like any other threat, should be viewed in perspective and subjected to rational risk-benefit assessments. That's because opinions about terrorism are the new form of political correctness, and even hinting that this threat is not the all-consuming, existential danger to our Republic which the Bush followers, fear-mongerers and hysterics among us have relentlessly and shrilly insisted that it is, will subject one to all sorts of accusations concerning one's patriotism and even mental health.

Professor Ellis makes another important point: that even with regard to the genuinely existential threats in our nation's history, the extreme abridgment of liberties we embraced in response to those threats have almost always come to be viewed -- retrospectively and by consensus -- as excessive and unwarranted:

My list of precedents for the Patriot Act and government wiretapping of American citizens would include the Alien and Sedition Acts in 1798, which allowed the federal government to close newspapers and deport foreigners during the "quasi-war" with France; the denial of habeas corpus during the Civil War, which permitted the pre-emptive arrest of suspected Southern sympathizers; the Red Scare of 1919, which emboldened the attorney general to round up leftist critics in the wake of the Russian Revolution; the internment of Japanese-Americans during World War II, which was justified on the grounds that their ancestry made them potential threats to national security; the McCarthy scare of the early 1950's, which used cold war anxieties to pursue a witch hunt against putative Communists in government, universities and the film industry.

In retrospect, none of these domestic responses to perceived national security threats looks justifiable. Every history textbook I know describes them as lamentable, excessive, even embarrassing. Some very distinguished American presidents, including John Adams, Abraham Lincoln and Franklin Roosevelt, succumbed to quite genuine and widespread popular fears. No historian or biographer has argued that these were their finest hours.

Most people this side of Michelle Malkin and Ann Coulter recognize that those reactions were excessive and nowhere near justified by the actual threat which was posed. And yet we don't seem to be able to apply those lessons to the threat of terrorism, which is causing us to engage in all sorts of extreme measures based on the warped notion that the terrorism threat is -- to use George Bush's formulation -- an "unprecedented danger."

The cause of this irrationality, this inability to view the terrorism threat with any perspective, is not a mystery. Terrorists like Al Qaeda deliberately stage attacks which are designed to instill fear in the population far beyond what is warranted by the actual threat-level posed by the terrorists. That's the defining tactic and objective of terrorists. Fortunately for the terrorists, in the United States, Al Qaeda has a powerful ally in this goal: the Bush Administration, which for four years has, along with Al Qeada, worked ceaselessly to instill in Americans an overarching and excessive fear of terrorism.

There are all sorts of serious threats which America faces, including the threat of overreacting to threats. As Professor Ellis concludes:

What Patrick Henry once called "the lamp of experience" needs to be brought into the shadowy space in which we have all been living since Sept. 11. My tentative conclusion is that the light it sheds exposes the ghosts and goblins of our traumatized imaginations. It is completely understandable that those who lost loved ones on that date will carry emotional scars for the remainder of their lives. But it defies reason and experience to make Sept. 11 the defining influence on our foreign and domestic policy. History suggests that we have faced greater challenges and triumphed, and that overreaction is a greater danger than complacency.

It would be a good start to at least arrive at the point where we can have this discussion openly and rationally -- without the discussion being drowned out by manipulative emotional appeals and cheap and cynical smears. That there is even an Op-Ed in a major American newspaper with the words "terrorism" and "perspective" in the same sentence is something we haven't seen for four years, and it is an encouraging first step.

UPDATE: Digby has a somewhat different explanation as to how and why the Administration has been able to squeeze so much political mileage from 9/11 and the terrorism threat. Digby argues that the country derives an emotional and psychological high from the televised drama and war dances which we've been fed for the last four years. Needless to say, it's a post worth reading.

UPDATE II: Jonah Goldberg has a piercing and insightful response to this post over at The Corner:

IT'S JUST A NUMBERS GAME
[Jonah Goldberg]

Glenn Greenwald says terrorism is no big deal.

There are, I suppose, several substantive grounds on which to disagree with the views I expressed concerning how the threat of terrorism ought to be assessed, but unsurprisingly, Jonah can't find any of them, so he opts instead for his characteristically sloppy, lazy, food-stained, vapid shorthand. Poor Bill Buckley. Sometimes it's just best to take what you've created and burn it down to the ground when you're done with it so that others can't come along and mar your creation.

Posting today

(updated below -- and updated again)

I will be posting today at Crooks and Liars and will link here to those posts once they are up.

In the meantime, here are a couple of noteworthy items:

(1) Sen. Dianne Feinstein wrote a letter yesterday (.pdf - h/t Gator in Comments) to the Chairman of the Senate Intelligence Committee, Sen. Pat Roberts (with a copy to Sen. Arlen Specter, Chair of the Judiciary Committee), regarding the 2002 DeWine legislation to amend FISA, and she specifically asked about the Statement by the DoJ's James A. Baker conveying the Administration's refusal to support the liberalization of FISA because it was unnecessary and possibly unconstitutional. Sen. Feinstein clearly understands how those events so fundamentally contradict the Administration's explanation now regarding its FISA-violating eavesdropping program.

The Administration's explanation for why it created this eavesdropping program is beginning to unravel, and that should only fuel the zeal of the Senators on the two Committees which will hold hearings on the NSA scandal within the next couple of weeks.

(2) There was an excellent article published yesterday in The Washington Post regarding the DeWine issue and related issues by Dan Eggen and Walter Pincus. That article, which followed up on the Post's article from Thursday, makes clear that the Administration's rationale for the NSA program is squarely contradicted by its statements regarding the proposed DeWine amendments to FISA, and is one of the first significant articles which treats the NSA scandal as a serious scandal for this Administration.

And on top of all of that, there is this article today in the Post by Eggen which reports on amendments to FISA proposed by the Administration in 2003 which were designed to expand the Administration's eavesdropping authority - an obvious concession by the Administration that amendments to FISA were necessary in order to grant the Administration additional eavesdropping powers.

Although the New York Times originally broke the NSA story, the Post for the last several weeks has been in the forefront of advancing it, and it seems as though the Post is finally starting to wake up to the true seriousness and the magnitude of the threat which this scandal (deservedly) poses for the Administration.

* * * * * * *
My first post on C&L is up here, which discusses the new essay in The New Republic from the increasingly pernicious 7th Circuit Court of Appeals Judge Richard Posner, who advances his advocacy of law-breaking yet another step forward to a point where, in my view, he is really teetering on the edge of propriety and ethics for what a Judge is permitted to do under the Code of Judicial Conduct.

Posner is expressly defending illegal behavior on the ground that good results justify law-breaking. He's not the only one who is arguing that. There are lots of Bush followers who, by necessity, have resorted to that theory. But he's the only federal judge I've ever heard actually argue that the President (or anyone else) has the right to break the law, and that the virtue of obeying the law is really over-rated.

* * * * *
My second post at C&L reviews some miscellaneous items which I think are interesting. I'd be particularly interested in anyone's view of item (3) in that post. I mentioned once before here that there is an odd and clearly deliberate semantic formulation which the Administration uses when giving assurances that the eavesdropping program applies only to those associated with Al Qaeda and not to "innocent Americans."

At first, I mentioned it only in passing because I didn't want to be reading too much into something that might well be innocuous, but I've seen it repeated enough times now in various documents and by various Administration officials that I'm quite sure it is a consciously used formulation which has meaning.

* * * * *
I have a third post up at C&L regarding the disparity between the Beltway media's ongoing belief that George Bush is a popular and well-liked President with a slew of polls showing that the exact opposite is true and has been true for some time now. Even in the face of these polls, the reverent Bush lovers in the media like Chris Matthews continue to spit out statements like this:

"Everybody sort of likes the president, except for the real whack-jobs."

So, according to "journalists" like Matthews, only freakish, America-hating loons are against the war in Iraq, dislike President Bush, and believe that the Administration deliberately misled the nation into war -- even though polls continuously show that a majority of Americans hold these beliefs.

The first step back to power for Bush opponents is to stop trying to please and act in accordance with the judgments of the Chris Matthews, Tim Russerts, David Broders and Joe Kleins of the world. They know less than nothing about what Americans think, and it is these coddled, Beltway blowhards who are the freakish, warped ones even as they place that label on anyone who did not fall madly and permanently in love with George Bush and his post-9/11 protective prancing.

The Administration's humiliation of Congress

Since the NSA scandal began, one of the most bizarre aspects of the story is that the Administration has been claiming that Congress authorized it to eavesdrop in violation of FISA, but the Congress which is said to have done so had no idea that the Administration was engaged in warrantless eavesdropping and had no idea that it had authorized eavesdropping in violation of FISA. Beyond that fact, the actions of the Congress throughout 2002 make undeniably clear that Congress was not only completely unaware that the Administration was eavesdropping outside of FISA, but also that Congress was deliberately misled by the Administration into believing that FISA continued to govern the Administration's eavesdropping activities.

As was revealed a couple of days ago, Sen. DeWine had proposed legislation to liberalize the requirements of FISA in order to enable broader eavesdropping power. That fact, by itself, shows that Sen. DeWine at least assumed that the Administration was bound by FISA in its eavesdropping activities (why else would he bother to liberalize FISA unless he thought that it actually governed what the Administration could and could not do?).

But Sen. DeWine wasn’t the only Senator attempting to amend FISA in 2002. In addition to his legislation, there was also a proposed amendment (S 2586) co-sponsored by Sens. Charles Schumer and John Kyl in 2002 which was intended to eliminate the requirement in FISA that a surveillance target be "an agent of a foreign power" and instead allow eavesdropping on any non-U.S. person "engaged in international terrorism or activities in preparation therefore.''

Obviously, the assumption of Sens. DeWine, Schumer, and Kyl was that it actually mattered what FISA said because FISA was the law that governed the scope of the Administration’s eavesdropping powers. Of course, we now know that while the Senate was debating all sorts of proposed changes to FISA in order to expand the Administration’s eavesdropping powers, it actually did not matter at all what FISA said, because the Administration had decided that it could do whatever eavesdropping it wanted regardless of whether FISA allowed or prohibited that eavesdropping.

Indeed, throughout 2002 and into 2003 – while the Administration was secretly eavesdropping without bothering to comply with FISA at all – Senators from both parties were drafting legislation to liberalize FISA, holding hearings before the Senate Intelligence Committee on proposed FISA changes, making all sorts of grand statements about how these changes to FISA were needed in order to allow the Administration to do the eavesdropping on terrorists which our national security required.

But all of this was worthless, a total sham. Nothing could have mattered less than what the Senate decided to do with FISA because the Administration -- obviously unbeknownst to the Senate -- had already decided that it could eavesdrop however it wanted no matter what the Senate said and no matter what FISA allowed. Despite this, the Administration allowed the Senate to go through the embarrassing spectacle of acting as though it had authority with regard to the Administration’s eavesdropping and, worse, even encouraged that illusion by participating in the Senate hearings and pretending that it mattered what the Senate did with FISA.

An institutional humiliation greater than this is difficult to imagine. The transcripts of the hearings held by the Senate Intelligence Committee in July, 2002 (h/t Marc Schulman) -- hearings devoted to examining and debating both Sen. DeWine’s FISA amendments as well as those co-sponsored by Sens. Schumer and Kyl -- make conclusively clear that the Senate had no idea that the Administration was eavesdropping outside of FISA. Not only did they have no idea, they clearly were of the belief that the Administration was eavesdropping only within the legislative parameters set by Congress.

Here is what Sen. Bob Graham, Chairman of the Intelligence Committee, said when opening the hearings on these proposed FISA amendments:

The two bills that we are here to discuss today will provide additional changes to FISA for the purpose of reducing both the nature and scope of the showing the government must make to obtain a surveillance order against suspected terrorists inside the United States who are neither citizens nor legal resident aliens. As we did with the changes made in FISA last year, the Congress must examine revisions of this nature to assure that they strike the proper balance between enhancing our ability to fight terrorism while protecting our privacy and liberties. That is the purpose of the hearin gtoday.

Contrary to Sen. Graham’s quaint belief that FISA defined "both the nature and scope of the showing the government must make to obtain a surveillance order against suspected terrorists inside the United States," the Administration had unilaterally decided that it itself would decide the nature and scope of its surveillance, not Congress and not FISA. And his belief that it was Congress which had the obligation to "assure that they [FISA amendments] strike the proper balance between enhancing our ability to fight terrorism while protecting our privacy and liberties" must have provoked great laughter at the White House, which had long before decided that it would eavesdrop however it wanted regardless of what Congress had to say.

Similarly, here is what Sen. Schumer said in explaining why he thought his FISA amendments were so important:

Now, Senator Kyl's and my goal, quite simply, is to make it easier for law enforcement to get warrants against non-U.S. citizens who are preparing to commit acts of terrorism. Right now the government is required to show three things before it can get a warrant for national security surveillance. . . .

I believe the Vice President, the FBI Director, and the Secretary of Defense when they say other attacks are planned. Right now there may well be terrorists plotting on American soil. We may have all kinds of reasons to believe that specific individuals in our communities are preparing to commit acts of terrorism, but we can't do the surveillance we need to do because we can't tie them to a foreign power. . . .

It's important to note that if our bill becomes law it will immeasurably aid law enforcement without exposing American citizens and permanent legal resident aliens to the slightest additional surveillance. This law will only affect non-citizens and non-green card holders. And the language we're proposing is the same language the Administration sent up here during the debate over the Intelligence Authorization Bill. Attorney General Ashcroft has given his stamp of approval. And I look forward to working with Senator Kyl and perhaps Senator DeWine, if we end up collaborating a little further--Senator Kyl mentioned to me in the subway yesterday that we might be--to help this bill become law.

So Attorney General Ashcroft told Sen. Schumer that he supported the FISA amendments offered by Sens. Schumer and Kyl – apparently without bothering to mention that the Administration actually did not need any FISA amendments because it was doing just fine engaging in whatever eavesdropping they wanted regardless of what FISA said. And Sen. Schumer went on and on about how it was so important to enact his amendments liberalizing FISA because it would expand the Administration’s eavesdropping capabilities -- when, in reality, the Administration was already doing exactly that eavesdropping based on its view that Congress had no power to define or restrict its eavesdropping powers under FISA.

Sen. Kyl also was under the (false) impression -- deceitfully re-inforced by the Justice Department -- that it actually mattered what changes he thought should be made to FISA:

And we have assurances from the Department of Justice, which we'll get later, to this effect, and which would . . . be a very helpful way to amend the statute so that we could deal with this problem of the individual who we have reason to believe, have probable cause to believe, is engaged in some kind of international terrorist activity or planning, but who we can't at this moment connect up to a specific country or terrorist group.

We could work with our friends in the Judiciary Committee, of which both Senator Schumer and I are members, and we could get it in--and Senator DeWine, I might add--and that we can move quickly to get the support of our colleagues and put this important tool into the hands of law enforcement and intelligence agencies here in this country so that we can add one more element to the protection of the American people.

After that, Sen. DeWine explained why his amendments were needed, and revealed that he, too, thought that the Administration’s eavesdropping powers were defined by the laws enacted by Congress rather than by the Administration acting unilaterally and in secret:

My FISA reform bill would offer us a chance to improve our intelligence gathering and a chance to improve our ability to prevent future attacks. It would make it more likely that we could use FISA surveillance more often to gather the data that we need to fight terrorism.

Sen. DeWine seemed to believe that his FISA amendments were necessary to broarden "our intelligence gathering" because he was obviously unaware that the Administration had unilaterally arrogated that power unto itself and had no need for Sen. DeWine's cute little FISA amendments.

After the Senators on the Intelligence Committee spoke about why their FISA amendments were so important and why it was so necessary to amend FISA in order to expand the Administration’s eavesdropping capabilities, various Administration officials from the Justice Department, the FBI and the CIA all testified about their views concerning these amendments. Each of them acted as though it mattered what Congress did with regard to amending FISA – they all gave the impression that it was Congress through FISA that determined the scope of the Administration’s eavesdropping powers – and never once stated, suggested, implied or even hinted that the Administration, months before, had decided that it could eavesdrop far beyond the mandates of that law.

Indeed, the Justice Department’s James A. Baker affirmatively (mis)led the Committee into believing that FISA continued to be the law which governed what eavesdropping the Administration could or could not engage in:

As Mr. Bowman suggested, if we expect that there are cases out there that would fit within this new category, then you would invariably have surveillances of additional targets. So you would be, you know, connecting electronic surveillance and potentially physical search of those targets and that raises all the same kinds of civil liberties questions that FISA does to begin with. But nevertheless, you would have had--before you get to that point, you would have had a finding by a neutral and detached magistrate, and indeed in this case a sitting federal judge, district court judge, that all of the requirements of the statute are met and that there's probable cause to believe that this individual is engaged in international terrorism activities, or activities in preparation therefor.

You also have certifications by the Director of the FBI that this is legitimate for an intelligence purpose and approval by the Attorney General that the application meets the requirements of the Act. So you would have more surveillances perhaps but they would be done in accordance with all the other provisions of FISA. And FISA, as you know, when it was enacted was designed to carefully balance national security versus individual liberties.

Someone needs to ask the Administration why Mr. Baker told the Senate Intelligence Committee that their proposed amendments would increase the scope of surveillance targets when, in reality, the Administration had already increased the scope of those targets regardless of what FISA said. And someone also needs to find out why Mr. Baker falsely assured the Committee that before anyone’s conversations could be eavesdropped on, "you would have had a finding by a neutral and detached magistrate, and indeed in this case a sitting federal judge, district court judge, that all of the requirements of the statute are met." Of course, the Administration was eavesdropping without any such judicial oversight at all.

This whole FISA-"bypass" program was a complete hoax perpetrated on Congress. The Senate sat there in 2002 holding hearings on whether FISA should be amended to increase the surveillance powers of the Administration even while the Administration had decided that FISA was totally irrelevant.

But they let these Senators waste their time and resources holding hearings, calling witnesses, debating these issues, without notifying them that the Administration had freely been eavesdropping for months in violation of FISA and continued to do so. In fact, the Administration clearly misled the Senate into believing that FISA did govern the Administration’s eavesdropping powers by having the Attorney General and various Administration representatives either endorse or otherwise give their input on these proposed amendments, as though they mattered at all.

Unless these Senators have relinquished every last iota of their dignity, how can they not be furious at this complete contempt shown by the Administration towards both the Congress and our nation’s democratic, law-making processes? The Administration allowed, and even encouraged, the Senate to operate on the assumption that the Administration was abiding by FISA and that it therefore mattered what the Congress did with that law. This deceit led the Congress to engage in a ridiculous sham where it solemnly debated changes to a law which the Administration had secretly decided it did not need to abide by and thus was violating.

Additionally, the Administration should not be able to get away with claiming with a straight face that Congress was not only aware of its FISA-violating eavesdropping activities, but also that Congress had actually somehow "authorized" it. Here is the Senate Intelligence Committee clearly operating on the exact opposition assumption – namely, that FISA is still the governing framework for eavesdropping on suspected terrorists, and that the only way to increase the Administration’s eavesdropping powers is by amending FISA.

It should be very difficult for Senators – or for anyone who actually still believes in representative democracy and the basic governing principles of our country – to read the transcript of these Senate hearings without cringing with embarrassment for these Senators who were so plainly misled by the Administration. The Administration led the Senators to act as though their decisions on FISA were of grave importance to the country when, in reality, the Administration had already decided that there was actually nothing less important or consequential than what the Senate decided because the Senate had no power whatsoever to regulate the Administration’s eavesdropping activities.

At any point, the Administration could have easily said that they did not need amendments to FISA because the AUMF already gave them all the authorization they needed to eavesdrop in violation of FISA. Why didn't they say that if they really thought that Congress had given them that authority? That would have made all of these FISA amendments which the Senate was pitifully debating totally unnecesssary.

It is impossible to review the events in the Senate with regard to these proposed FISA amendments and continue to claim that the Senate was aware of and had authorized the President to eavesdrop outside of FISA. To the contrary, the Administration deliberately misled the Senate into believing that FISA still governed eavesdropping in this country, and the Senate labored under that false assumption until a month ago, when The New York Times revealed that the Administration had been eavesdropping since late, 2001 in deliberate violation of FISA.

Miscellaneous items

A few miscellaneous matters:

(1) Marty Lederman, a former Justice Department official and current Georgetown Law Professor (and current blogger), is an insightful and knowledgeable source for the NSA scandal. He left a Comment to an earlier post here which contains some highly informed speculation as to what this eavesdropping program likely was about and why it was implemented.

(2) A copy of the letter sent yesterday by Sen. Arlen Specter to Attorney General Alberto Gonzalez can be read here. Specter, whose Judiciary Committee has scheduled hearings on the NSA scandal to begin in early February (with Gonzalez to testify on February 6), sent a list of 15 questions he wants Gonzalez to be prepared to answer.

The questions are fine as far as they go, but I have very little faith either in Specter's willingness to pose genuine challenges to the Administration's law-breaking, and even less faith in the ability of the well-intentioned but (mostly) frustratingly lame and broken-down Democrats on the Judiciary Committee to pursue and expose the true nature of the Administration's lawlessness here. That will likely have to be left to some combination of the media, the blogosphere and citizen pressure/anger. There are actually some Republicans on the Committee (Graham, Brownback, even Specter) who have expressed some serious objections to the Administration's law-breaking here but, under the Bush Administration, Republicans like that have always snapped back into line after squawking with little impotent noises of protest. There is little reason to hope for any different behavior here.

(3) I will be on Air America's Majority Report tonight at 8:05 p.m. EST to discuss the NSA scandal. You can find your local listings for Air America or listen to the live stream here.

(4) Crooks and Liars has two video clips which are highly relevant and worth watching - the first is from Richard Nixon, famously declaring that "When the President does it, that means it is not illegal. This really is the closest historic precedent to the activities of the current occupant of the White House.

The second clip is of Gen. Hayden who, after sternly lecturing the media that the NSA is run by experts who know more about privacy issues than any other Americans, proceeded to demonstrate that he has only the vaguest and most passing familiarity with this thing called the "Fourth Amendment."

The significance of the Administration's July, 2002 statements about FISA

The Administration has tried to explain away its opposition to the DeWine legislation which would have loosened eavesdropping requirements under FISA by claiming that the DeWine standard of "reasonable suspicion" was lower than the standard which Bush’s secret program used ("reasonable basis to believe") and they were concerned that DeWine’s standard would be unconstitutional. Think Progress today compellingly demonstrates that the Administration’s response to this story is both false and contradictory.

But in addition to being false, the Administration’ explanation is also irrelevant -- really besides the point of this whole story. Certain media stories have effectively conveyed some of the issues raised by this matter but have not quite grasped the most significant part of it, and the Administration's response does not, as a result, address the real issue. What matters most here is not that the Administration refused to support the DeWine legislation (although that does matter), but what the Administration said in July, 2002 when explaining their refusal to support it.

The overriding point for this scandal is always that the law (FISA) makes it a crime to eavesdrop on Americans without judicial oversight and judicial approval, and the Administration engaged in such eavesdropping anyway and therefore broke the law (and continues to break the law) -- and that all of this stems from the Administration's theory that it has the right to violate the law because we are in "wartime." But ever since this scandal arose, the glaring question has always been: given how permissive FISA is and how rubber-stamping the FISA court has always been, what possible reason could the Administration have for deciding to eavesdrop without complying with the law and obtaining judicial approval under FISA? In short, what was their motive for breaking the law?

The Administration finally provided a coherent explanation for the first time on Tuesday when Gen. Hayden claimed that the "probable cause" requirement for getting a warrant under FISA was too restrictive and therefore did not allow them to engage in the eavesdropping they wanted. But the important point here is that Gen. Hayden's excuse for why the Administration decided to eavesdrop outside of FISA is transparently false, and -- in several different ways -- the Administration’s own statements from DoJ official James A. Baker made in connection with the DeWine legislation directly contradict the explanation it is now giving for its conduct:

(1) According to Baker's June, 2002 Statement, FISA’s "probable cause" standard was not creating any problems for the Administration in obtaining the eavesdropping warrants they needed.

Baker's Statement directly contradicts the explanation which the Administration sent Gen. Hayden to give on Tuesday as to why the Administration decided to eavesdrop outside of FISA – because, according to Gen. Hayden, the "probable cause" standard was too stringent. The fact that the Administration in 2002 clearly said that they were not aware of any problems presented by FISA’s "probable cause" showing -- and therefore perceived no reason to change FISA -- demonstrates that the explanation they are now giving as to why they eavesdropped without FISA oversight is simply false.

This, by itself, is an enormous story – the Administration finally, for the first time, offered a clear and coherent reason why they eavesdropped outside of FISA, and that explanation is clearly false, as proven by the Administration’s own statements in 2002 which directly contradict that explanation.

(2) Ever since this scandal was first disclosed, the Administration claimed that it had to eavesdrop outside of FISA because it needed "speed and agility" when eavesdropping, and -- without ever explaining why -- implied that FISA lacks this "speed and agility" (even though FISA allows warrantless eavesdropping for up to 72 hours). The President in his first Press Conference on this issue claimed (with no rationale given) that FISA was inadequate because "We've got to be fast on our feet, quick to detect and prevent." And in his Press appearance, Gen. Hayden claimed that the 72-hour window for warrantless eavesdropping was insufficient because the requirements for invoking it were still too cumbersome.

But, in his Statement to Congress, Baker expressly singled out the 72-hour window for warrantless eavesdropping (which was created by the Patriot Act) and specifically praised it for giving the Administration the speed and agility it needed to track terrorists:

One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism. Thank you.

Does that sound like an Administration which thinks that FISA and its 72-hour window are insufficiently slow and too cumbersome to allow it to engage in the eavesdropping it wants? Clearly, the Administration was telling Congress that the changes which Congress effectuated to FISA (via the Patriot Act) had given the Administration everything it needed with eavesdropping power. The Administration was clearly telling Congress it was happy with the broad eavesdropping powers it had under FISA.

Thus, the Administration’s excuse from the time the scandal broke and repeated by Gen. Hayden two days ago – that FISA does not provide the necessary "speed and agility" for eavesdropping - was directly contradicted by its claims in June, 2002 that the Patriot Act’s FISA amendments give it all the speed and agility it needed.

Here is the critical point: if, as the Administration is now claiming, FISA was inadequate for eavesdropping, why was it telling the Congress in June, 2002 that FISA was perfectly adequate to enable all the eavesdropping it wanted, and even praising Congress for amending FISA (via the Patriot Act) and thereby giving the Administration everything it needed?

(3) There are several critical facts to note about Baker’s Statement:

(a) Baker was not some out-of-the-loop DoJ bureaucrat. To the contrary, he was the official in charge of the FISA application process, which means that if anyone would know if FISA really were impeding the eavesdropping which the Administration wanted to engage in, it would be Baker.

(b) This was not some lone-wolf Statement made by Baker, but rather, was the considered position of the Administration itself on this issue. As former Justice Department official and current Georgetown Law Professor Marty Lederman explained (to GWU Law Professor Orin Kerr):

Baker wasn't speaking for OIPR [Office of Intelligence Policy and Review] here, or on his own -- he was speaking for the Department ("I welcome the chance to provide the views of the Department"; "I thank the Committee for the opportunity to present the views of the Department"). And, as you and I know, his testimony would have been scrubbed inter-agency, through OMB, by all affected entities and agencies, including OVP and NSA. So, this was a careful, Administration-sanctioned delaying mechanism.

(c) Bush’s secret, FISA-bypass eavesdropping program began in late, 2001 -- more than 6 months before Baker’s Statement was issued. Thus, as of the time that the secret FISA-bypass eavesdropping was underway, the Administration’s own DoJ was not aware of any of the supposed problems with FISA which the Administration is now claiming caused it to bypass FISA, and the Administration specifically told Congress then the opposite of what it is now claiming (that FISA’s probable cause requirement impeded necessary eavesdropping).

(4) Virtually every significant political law-breaking scandal in our nation’s history is comprised of two components: (a) the law-breaking itself, and (b) the subsequent attempts to cover up and explain away the law-breaking with falsehoods and untrue explanations.

That is what we are seeing now. The Administration scrambled for a full month to explain why they had to eavesdrop outside of the very permissive FISA scheme, to explain why they eavesdropped with no judicial oversight even though the law makes it a criminal offense to do so. We had been fed nothing but incoherent gibberish about the need for "speed and agility" in this "different war."

Now we finally heard an explanation from the Administration as to why they supposedly had to eavesdrop in violation of FISA -- because FISA supposedly was too rigid to allow the eavesdropping they wanted to do -- and that explanation is clearly false, as proven by the Administration's own statements and conduct at the time.

Leaving aside the always-paramount fact that the Administration has no right in our system of government to simply violate laws when it claims it has a good reason to break the law – and that principle, from start to finish, is what this scandal is about – the fact that the Administration is disseminating patently false explanations for why it violated the law does also leave the quite pressing and still unanswered question:

What is the real reason the Administration chose to eavesdrop in violation of FISA -- i.e., in secret and with no oversight -- rather than within FISA and with oversight? There is still no viable answer to that question from the Administration. Whatever the real reason is, the Administration still has not disclosed it. One thing is clear: the explanation given by Gen. Hayden this week simply is untrue.

Attacks on the blogosphere

I am still working on several matters in connection with the media's very encouraging reporting of the Administration's flatly inconsistent behavior and statements regarding the NSA scandal, as reflected by its reaction to Sen. DeWine's proposed FISA amendments in June, 2002. As a result, though, I am unable to blog a lot today again, which is a little irritating because there is a lot I want to post about regarding the NSA matter.

For the moment, though, I want to note this one point:

It is not unusual or extraordinary for the blogosphere to find critical facts or important connections between facts well before the establishment media finds them. For whatever reasons, in the case of the DeWine legislation, the path from the blogosphere into the establishment media was too clear and glaring for it not to be credited, but this really does happen all the time in the blogosphere.

I read blogs for a couple of years before I started this blog last October, and the reason I started blogging was precisely because the conversation and reporting that takes place among blogs is so frequently at a higher and more informed level of both analysis and thoroughness than what I was hearing from the establishment media, and for that reason, I wanted to participate in it. I can't count the times when some establishment media reported a point or fact as though it was some sort of new scoop when the blogosphere had been discussing and analyzing it days earlier or even longer.

This is all notable not to engage in some sort of pro-blogosphere celebratory dance, but rather, because there is a considered effort underway to marginalize the blogosphere and to depict it as some sort of crazed, extremist cesspool that not only does need to be listened to but ought to be actively scorned and rejected by all good and decent people.

Digby recently made the point that bloggers are clearly the next target for being depicted as nothing more than foul-mouthed, irresponsible lunatics whose opinions and statements must be disregarded simply by virtue of the fact that they emanate from the blogosphere. Scott McClellan was recently asked at a White House Press Briefing about various reports regarding rendering of suspects to Syria for interrogation-by-torture -- a question which is well-grounded in fact -- and when told that the reports were well-publicized, McClellan snidely asked, in order to cast aspersions on the credibility of those reports: "By what, bloggers"?

Efforts to marginalize the blogosphere aren't coming only from political officials but from status-threatened journalists as well. Time's Joe Klein -- who hasn't uttered a single thought outside of the listless belly of trite, conventional wisdom for many years now -- recently shared what he called his "disdain for bloggers," whom he smeared as being "all opinions and very little information." And the reason the recent controversy over The Washington Post's comments section had such resonance, especially among other establishment media outlets, is precisely because it fed the stereotypes of the blogosphere as nothing more than vulgar, substance-free personal assaults when, in reality, it was bloggers who, as is so often the case, first noticed the factual reporting errors from the Post's Ombudsman and demanded their correction (and became frustrated only when the Ombudsman ignored the requests for days and refused to correct her error).

There are all sorts of motivations which account for this effort, coming from several different circles, to attack the credibility of the blogosphere and to try to marginalize it. To cite just a few of these motives: the blogosphere threatens the prior monopoly which the establishment media maintained on both news and opinions; the White House and other political power centers can and do manipulate and control (large parts of) the establishment media in a way that they cannot control the blogosphere; and there is just a general and natural distrust of unstructured, free-wheeling and uncontrollable areans on the part of institutionalized authorities, which include establishment media figures as sadly represented by the likes of Joe Klein.

There are, of course, imperfections and flaws in the blogosphere, and bloggers are wrong about things not infrequently. But the establishment media is hardly free of errors or embarrassments of its own, and just as the Janet Cookes and Stephen Glasses and Judy Millers and Jason Blairs and Bob Woodwards do not constitute evidence that establishment journalists generally should be presumed to be corrupt or untrustworthy, nor can the occasional vulgarity or blogospheric error be fairly used as evidence of the lack of credibility of the blogosphere itself.

In story after story, bloggers (on both ideological sides) have uncovered facts or exposed errors and falsehoods from political officials and journalists which the establishment media failed to uncover. That's not to say that the blogosphere can or should replace the establishment media or that the establishment media has no use. We need the establishment media, with its vast resources and reach, to serve as an aggressive and meaningful check on government statements and actions. But in many instances, it is undeniably true that the blogosphere has supplemented the media's function in this regard, and other times has performed this function when the media failed to.

Jane Hamsher has made the point several times that bloggers can be an excellent resource for those enterprising reporters who are able to overcome the baseless perception that the blogosphere is some sort of wild, irresponsible jungle which competes with establishment journalism and therefore must be scorned. The work done in the blogosphere with great regularity is among the most reliable, well-researched, knowledgeable and analytical work being done anywhere on most stories of political significance, and the sooner the establishment media stops viewing the blogosphere as some sort of bug to be shooed away or squashed, the more effectively it can begin to work with the blogosphere to promote what is supposed to be the central function of our media -- to serve as an adversarial and aggressive check on the statements and actions of the Government.

Follow-up on the DeWine issue

I have been working a lot today with various people to try to induce certain journalists to cover the issues I posted about yesterday regarding the Administration's inexplicable and highly revealing opposition to the proposed 2002 DeWine amendments to FISA. For that reason, I have not been able to blog yet today. I hope to have a few posts relating to this matter and a few others up later today.

In the meantime, I can't help but note that, with rare exception, the usually vocal and responsive pro-Bush contingent in the blogosphere has been deathly quiet regarding this issue. There have been several screeching responses consisting exclusively of foul, childish name-calling, but very, very few substantive responses.

One of the few is this post from the always civil and thoughtful Mark Coffey at Decision '08. Although I intend to post a reply to all of the pro-Bush responses collectively, I posted an initial response in Mark's Comments section. Additionally, the generally pro-Bush blogger Marc Schulman of American Future has, to his credit, acknowledged that, at least preliminarily, there seem to be serious questions raised by the Administration's reaction to the proposed DeWine legislation.

I think that engaging pro-Bush advocates on the NSA scandal is important and constructive (and thus encourage anyone so inclined to engage Mark in his Comments section, as well as any other pro-Bush blogger who may awaken from their slumber and address the issue), both because that sort of interaction fleshes out the real issues more effectively than having two parallel, unconnected monologues, and because debates of that type bring greater attention to the NSA law-breaking issue, which I believe is a desirable goal.

I look very forward to seeing further responses to the DeWine issue, particularly from those pro-Bush bloggers who are typically eager to the point of hyperactivity to defend the Administration's every utterance on the NSA scandal.

The Administration's new FISA defense is factually false

In light of Gen. Hayden's new claim yesterday that the reason the Bush Administration decided to eavesdrop outside of FISA is because the "probable cause" standard for obtaining a FISA warrant was too onerous (and prevented them from obtaining warrants they needed to eavesdrop), there is a fact which I have not seen discussed anywhere but which now appears extremely significant, at least to me.

In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA. Specifically, DeWine's legislation proposed:

to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion. . . .

In other words, DeWine's bill, had it become law, would have eliminated the "probable cause" barrier (at least for non-U.S. persons) which the Administration is now pointing to as the reason why it had to circumvent FISA.

During that time, the Administration was asked to advise Congress as to its position on this proposed amendment to loosen the standard for obtaining FISA warrants, and in response, they submitted a Statement from James A. Baker, the Justice Department lawyer who oversees that DoJ's Office of Intelligence Policy and Review, which is the group that "prepares and presents all applications for electronic surveillance and physical search under the Act to the Foreign Intelligence Surveillance Court (FISA Court or Court)." If anyone would be familiar with problems in obtaining FISA warrants, it would be Baker.

And yet, look at what Baker said in his Statement. He began by effusively praising the Patriot Act on the ground that the 72-hour window provided by the Patriot Act had given the Administration the speed and flexibility it needed in order to engage in eavesdropping:

The reforms in those measures (the PATRIOT Act) have affected every single application made by the Department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going "up" on those suspected terrorists in the United States.

One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism. Thank you.

And then, regarding DeWine's specific proposal to lower the evidentiary standard required for a FISA warrant, Baker said that:

The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.

So, in June, 2002, the Administration refused to support elimination of the very barrier ("probable cause") which Gen. Hayden claimed yesterday necessitated the circumvention of FISA. In doing so, the Administration identified two independent reasons for opposing this amendment. One reason was that the Justice Department was not aware of any problems which the Administration was having in getting the warrants it needed under FISA:

The practical concern involves an assessment of whether the current "probable cause" standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congress's passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.

So as of June, 2002 -- many months after the FISA bypass program was ordered -- the DoJ official who was responsible for overseeing the FISA warrant program was not aware (at least when he submitted this Statement) of any difficulties in obtaining warrants under the FISA "probable cause" standard, and for that reason, the Administration would not even support DeWine's amendment. If - as the Administration is now claiming - they had such significant difficulties obtaining the warrants they wanted for eavesdropping that they had to go outside of FISA, surely Baker - who was in charge of obtaining those warrants - would have been aware of them. And, if the Administration was really having the problems under FISA, they would have supported DeWine's Amendment. But they didn't.

The second concern the Administration expressed with DeWine's amendment was that it was quite possibly unconstitutional:

The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.

By that time, the Administration had already been engaging in eavesdropping outside of the parameters of FISA, and yet the DoJ itself was expressing serious doubts about the constitutionality of that eavesdropping and even warned that engaging in it might harm national security because it would jeopardize prosecutions against terrorists. Put another way, the DoJ was concerned that it might be unconstitutional to eavesdrop with a lower standard than probable cause even as the Administration was doing exactly that.

Two other points to note about this failed DeWine Amendment that are extremely important:

(1) Congress refused to enact the DeWine Amendment and thus refused to lower the FISA standard from "probable cause" to "reasonable suspicion." It is the height of absurdity for the Administration to now suggest that Congress actually approved of this change and gave it authorization to do just that -- when Congress obviously had no idea it was being done and refused to pass that change into law when it had the chance.

(2) DeWine's amendment would have lowered the standard for obtaining a FISA warrant only for non-U.S. persons -- whereas for "U.S. persons," the standard would have continued to be "probable cause." And, DeWine's amendment would not have eliminated judicial oversight, since the Administration still would have needed approval of the FISA court for these warrants.

That means that, in 2 different respects, DeWine's FISA amendment was much, much less draconian than what the Administration was already secretly doing (i.e., lowering the evidentiary standard but (i) eliminating judicial oversight, and (ii) applying these changes not just to non-U.S. persons but also to U.S. persons). Thus, Congress refused to approve -- and the DoJ even refused to endorse -- a program much less extreme and draconian than the Administration's secret FISA bypass program.

This has extremely significant implications for the Administration's claims made yesterday through Gen. Hayden as to why it was necessary to bypass FISA. The Administration's claim that the "probable cause" component of FISA was preventing it from engaging in the eavesdropping it needed is the opposite of what it told Congress when refusing to support the DeWine Amendment. And its claim that Congress knew of and approved of its FISA-bypassing eavesdrop program is plainly negated by the fact that the same Congress was debating whether such changes should be effectuated and then refused to approve much less extreme changes to FISA than what the Administration secretly implemented on its own (and which it now claims Congress authorized).

The Administration is stuck with the excuse given by Gen. Hayden yesterday as to why it had to eavesdrop outside of FISA, but that excuse is plainly contradicted by these events and by the Administration's own statements at the time.

The "Bad Law" defense

Something extraordinary happened yesterday: the Administration, via the appearance by former NSA Director Gen. Michael Hayden at the National Press Club, finally offered a coherent answer to the question of why the Administration bypassed FISA in order to eavesdrop on Americans. By "coherent," I don’t mean "persuasive and satisfactory." I mean only that the explanation was at least responsive to the question and capable of being understood. Since all we had been given up until this point is gibberish about how we need to be "fast and agile" in this "different war," yesterday's explanation constituted significant progress.

Contrary to the excuse offered up by Bush followers that this illegal eavesdropping was all necessitated by some sort of super-complex data mining method which rendered FISA an obsolete relic, Gen. Hayden made clear that this is not the case. Bush's eavesdropping program entailed garden-variety eavesdropping on telephone conversations - not some new technologically advanced data mining program. As Kevin Drum put it:

General Michael Hayden, the deputy director of national intelligence, defended the NSA's domestic spying program today:

Hayden stressed that the program "is not a drift net over Dearborn or Lackawanna or Freemont, grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about. This is targeted and focused."

Unless I've missed something along the way, this is important news. Hayden is saying that the NSA program isn't some kind of large-scale data mining operation that the authors of the FISA act never could have foreseen. Rather, it's "targeted and focused" and involves "only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates."

In other words, it's precisely the kind of monitoring that the FISA court already approves routinely and in large volumes. Another few hundred requests wouldn't faze them in the least.

Kevin is exactly right – both about what Hayden said and about the under-noticed significance of it. Hayden made clear several times that the decision to bypass FISA had nothing to do with any sort of data-mining operation:

You know, I tried to make this as clear as I could in prepared remarks. I said this isn't a drift net, all right? I said we're not there sucking up coms and then using some of these magically alleged keyword searches -- "Did he say 'jihad'? Let's get --" I mean, that is not . . . This is targeted, this is focused. This is about al Qaeda.

According to Hayden, the reason the President wanted to bypass FISA was because FISA requires a showing of "probable cause" in order to obtain a FISA warrant for eavesdropping on telephone conversations, and the President believed that standard was too burdensome. They therefore lowered the standard from "probable cause" to "reasonable basis to believe," and also eliminated the legal requirement that a federal judge approve of the eavesdropping (and replaced it with the requirement that a NSA "shift supervisor" approve) – which is all a way of saying that they "changed" (i.e., violated) the law knowingly, unilaterally, and in secret. Gen. Hayden:

The president's authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates. . . .

QUESTION: Just to clarify sort of what's been said, from what I've heard you say today and an earlier press conference, the change from going around the FISA law was to -- one of them was to lower the standard from what they call for, which is basically probable cause to a reasonable basis; and then to take it away from a federal court judge, the FISA court judge, and hand it over to a shift supervisor at NSA. Is that what we're talking about here -- just for clarification?

GEN. HAYDEN: You got most of it right. The people who make the judgment, and the one you just referred to, there are only a handful of people at NSA who can make that decision.

When Hayden says that the President’s Executive Order allows eavesdropping using a standard that "is a bit softer than it is for a FISA warrant," what he’s saying, of course, is that the President ordered eavesdropping which FISA prohibits. FISA makes it a criminal offense to eavesdrop without a warrant from a FISA court, and Bush ordered eavesdropping without those warrants. Thus, Hayden claims that when NSA now wants to eavesdrop, it does not need to comply with FISA, but instead, has "two paths" to choose from:

If FISA worked just as well, why wouldn't I use FISA? To save typing? No. There is an operational impact here, and I have two paths in front of me, both of them lawful, one FISA, one the presidential -- the president's authorization. And we go down this path because our operational judgment is it is much more effective. So we do it for that reason.

To appreciate just how illegal this non-FISA "second path" for eavesdropping is, one can just read Section 1809 of FISA, which 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."

Put simply, FISA – i.e., the law – says that there is no such thing as a "second path" for eavesdropping (other than additional statutory authorization). Anyone who eavesdrops in accordance with a "second path" -- which is exactly what Gen. Hayden said the Administration was doing and continues to do -- is, by definition, breaking the law and committing a crime.

Gen. Hayden’s explanation is that the NSA eavesdrops in accordance with the "second path" because FISA is too restrictive and "does not give us the operational effect that the authorities that the president has given us give us." In essence, what we have from the Administration, then, is the "Bad Law" defense to criminality: "I did break the law, but the reason I broke the law was because it wasn’t a very good law to begin with."

There are several additional points to note about Gen. Hayden’s defense:

(1) As always, the first -- and, for this scandal, the dipositive -- principle is that the solution to a bad law is to change the law, not to break the law in secret and then claim once you’re caught that the law you broke was a bad law. If the President has the power to comply only with those laws he likes but to violate the laws he dislikes – and that, at bottom, is the Administration’s position – then we have a President who, by definition, does not believe in the rule of law and refuses to comport himself to it.

(2) This entire explanation rests on the claim that the FISA standards were too onerous to meet in order to convince a FISA court to allow them to engage in eavesdropping which they believed was necessary. But if that’s really true, one would expect there to be all sorts of examples where the Administration wanted to obtain FISA warrants but was unable to meet the "probable cause" standard and therefore the proposed eavesdropping was rejected by a FISA judge.

But by all accounts, that never happened. When the President ordered this "second path" for eavesdropping, a more rubber-stamping court than the FISA court would be hard to imagine. They simply didn’t turn down Administration requests to eavesdrop. And in the aftermath of 9/11, is there really any doubt that the court would have even more permissively approved eavesdropping requests, especially if, as Gen. Hayden claimed, the Administration is only eavesdropping on "specifically target communications we have reason to believe are associated with al Qaeda."

The claim that the evidentiary requirements for obtaining FISA warrants were too stringent is simply negated by the empirical evidence that they were able to get whatever warrants they wanted.

(3) One issue which has not been explained by the Administration ever, including by Gen. Hayden yesterday, is the obvious question of why they did not seek to have the FISA standards amended if they were too onerous. As Kevin Drum notes, it is virtually certain that a Senate which passed the Patriot Act with only a single Senator voting against it – and which actually did change part of the FISA procedure when enacting the Patriot Act – would have given the Administration whatever changes it wanted to the FISA standards.

It seems that what really attracted the Administration when bypassing FISA was not some desire to lower the evidentiary standard for obtaining warrants (since it was obtaining all the warrants it wanted and since it could certainly have persuaded Congress to amend the standard), but rather, the ability to eavesdrop without having to tell any Federal Judge on whom they were eavesdropping. That’s the disturbing part of the illegality, much more than the "probable cause" v. "reasonable likely to believe" issue.

A reasonable debate can be had by all as to whether the standard for obtaining a warrant ought to be "probable cause" or "reasonable basis to believe." I’m not sure it really makes much of a difference, since they are both quite subjective and I really can’t imagine a FISA judge, operating in secret, especially after 9/11, being unwilling to sign a warrant because there is only a "reasonable basis," rather than "probable cause," to believe that the targeted communications involve an al Qaeda member.

Matt Yglesias is absolutely correct that the standard described by Gen. Hayden is incredibly vague, and may be far looser than the country would like. But that debate is at least reasonable.

But what is not reasonable, and what most Americans would likely not want (hence the enactment of FISA), is for the Administration to be able to eavesdrop on Americans with no oversight whatsoever. Rather than the evidentiary standard for warrants, the most important part of FISA is that it allows eavesdropping on Americans only with judicial oversight in order to avoid abuse. That’s what the Administration did away with - unilaterally and in secret – and it is that (rather than the change in the evidentiary standard) which they likely would have been unable to have Congress agree to. So they went ahead and did it anyway.

We had a legislative regime in place which is incredibly permissive in allowing eavesdropping. We have a FISA court that could not have been more deferential in granting warrants. The only practical reason to bypass that process – even with a lowered evidentiary standard - is a desire to eavesdrop without having to disclose to a FISA judge whose communications are being intercepted and why.

(4) The crux of Gen. Hayden’s defense, as well as President Bush’s yesterday, is that the FISA-violating eavesdropping is not problematic because we can trust the Government to do the right thing:

I'm disappointed I guess that perhaps the default response for some is to assume the worst. I'm trying to communicate to you that the people who are doing this, okay, go shopping in Glen Burnie and their kids play soccer in Laurel, and they know the law. They know American privacy better than the average American, and they're dedicated to it. So I guess the message I'd ask you to take back to your communities is the same one I take back to mine. This is focused. It's targeted. It's very carefully done. You shouldn't worry.

And President Bush, in defending his eavesdropping program yesterday, repeatedly – and I do mean repeatedly – assured us that we need not worry ourselves about it because it was all being done to "protect" us:

I resolved on that day to do everything I can to protect the American people. . . .

My most important job is to protect the security of the American people. . . .

And so part of my decision-making process, part of it as you see when I begin to protect you, to do my number one priority, rests upon this fact . . .

If they're making phone calls into the United States, we need to know why -- to protect you.

But we don’t have a Government where the President can break the law in secret and then tell us not to worry about it because they are good people who are doing it for our own good, to "protect" us. We’ve never had a system of government operate on such paternalistic and blindly loyal sentiments, with our leaders holding themselves out as the Good, Strong National Fathers who must be trusted to do what's best for us, even if it is in violation of the law. The reason FISA exists is precisely because Americans, through their elected representatives, made a collective judgment that they do not trust the Federal Government to eavesdrop on Americans without judicial oversight.

The time to make all of these arguments – that we can trust the Administration to eavesdrop in secret, that the standards of FISA are too stringent, etc. -- was before the Administration broke the law, not now once they got caught breaking it. No judge would even listen to a criminal defendant try to explain that he broke the law because the law was too stringent or was ill-advised, and we should be no more willing to listen to that excuse for law-breaking just because it’s coming from George Bush. That’s what it means to say that we live under the rule of law and that nobody is above it.

Rules for Political Discourse

It’s always worthwhile to review the rules of political debate just to make sure that we’re not overstepping the bounds of propriety. After all, as the Commander-in-Chief helpfully reminded us just recently, there is a "difference between responsible and irresponsible debate" and we must "demand a debate that brings credit to our democracy -- not comfort to our adversaries." With that admonition in mind, let’s take a look at how these standards play out.

The Great Outrage among Bush followers these last couple of weeks is that Harry Belafonte called George Bush the "greatest terrorist." This is an example of "irresponsible" debate which fails to "bring credit to our democracy," but rather, brings "comfort to our adversaries."

Thus, we have learned that Belafonte’s comments constitute "sabotage and treachery," and they show that he is "demented." Good people everywhere must shun and stigmatize Belafonte, and it is evidence of great societal corruption that he is invited to speak on college campuses. As one patriotic commentator noted, Belafonte’s comment "sounds to me like giving 'aid and comfort' to the enemy. Yes, folks, I'm talking about the "t" word: treason" (emphasis in original). Accordingly, it would be best if Belafonte just renounces his American citizenship and stays in Venezuela with Hugo Chavez, where he belongs.

So just to recap: it renders someone a despicable untouchable loon if they call George Bush a terrorist. Now let’s look at some of the things we have learned in the recent past about Democrats.

We know that, when it comes to Iraq and the fight against terrorism, former President Jimmy Carter is "on the other side" (that would be the side of the terrorists). And how about DNC Chair Howard Dean? He’s a complete "traitor" who, according to Ronald Reagan’s son, "should be arrested and hung for treason or put in a hole until the end of the Iraq War."

Jay Rockefeller? Guilty of treason. How about Dick Durbin? According to Karl Rove, he's on the side of the terrorists, a total traitor. John Kerry? Yawn. Need you even ask? A real traitor to his country, and guilty of treason.

And then, of course, we just spent this last weekend hearing from countless pundits and "journalists" that Democrats sound so very much like the mass murdering Unprecedentedly Evil Terrorist Osama bin Laden -- so much so that it seems clear that bin Laden is getting his talking points from Dean, Kerry and the New York Times.

So let’s review: It is a despicable act of deranged hatred to call George Bush a "terrorist." But it is perfectly acceptable, even common, to accuse Bush's political opponents of being traitors, committing treason, being on "the other side" (i.e., with the terrorists), and pronouncing that they should hang. And there’s one last rule you don’t want to forget about. It’s from Newt Gingrich, announced on Hannity & Colmes:

"I think it's quite clear as you point out, Sean, that from this tape, that bin Laden and his lieutenants are monitoring the American news media, they're monitoring public opinion polling, and I suspect they take a great deal of comfort when they see people attacking United States policies."

So, according to Newt, anyone who is "attacking United States policies" -- what we in the United States used to call "criticizing the Government" -- is now guilty of giving "a great deal of comfort" to Al Qaeda.

These rules seem very fair and evenly applied and I think we owe it to the country to be a little more diligent in complying with them. After all, if we don’t stop with all of this criticism of the Commander-in-Chief, we might lose our freedoms.

The media's distorted understanding of "neutrality"

Substantial disagreement exists regarding the proper role of the media when it comes to reporting on the country’s political debates. But one point which seems beyond reasonable dispute is that a primary mandate of the press is to expose untruths and false propaganda which are disseminated by the Government. According to the Founders, that was the primary reason why the Constitution guarantees a free press.

Here is what Karl Rove, the President’s top advisor, said in his speech on Friday regarding the NSA law-breaking scandal, as reported by The New York Times' Adam Nagourney:

"Let me be as clear as I can be: President Bush believes if Al Qaeda is calling somebody in America, it is in our national security interest to know who they're calling and why," Mr. Rove said. "Some important Democrats clearly disagree."

This statement is factually false, and Rove has to know that it’s false. Nobody of any note – let alone "some important Democrats" – disagree that it’s "in our national security interest to know" who Al Qaeda is calling and why. Nobody opposes eavesdropping on Al Qaeda, and Rove knows that. And yet, here he is, claiming, falsely, that the NSA scandal is based on a disagreement about whether the Government should be eavesdropping on Al Qaeda, even though no such disagreement exists.

This is not about claiming a little poetic license with flamboyant political rhetoric, nor is this a dispute over how one characterizes the viewpoints of one’s political opponents. This is just false propaganda, pure and simple, with no goal but to mislead. Everyone who has been paying even the most minimal attention knows by now that nobody opposes eavesdropping on Al Qaeda. The only thing anyone is opposed to is not the President's eavesdropping, but that the President purposely broke the law by eavesdropping on Americans without the judicial oversight which the law requires. Karl Rove’s statements about what Democrats believe are not just exaggerated, but are factually false.

The reason this matters so much is because we live in a country where, at the time we invaded Iraq and even for months thereafter, an overwhelming majority of our population -- 70% -- believed that Saddam Hussein participated in the planning of the 9/11 attacks even though there was never any evidence of any such thing. Even as of September, 2003 -- almost 6 months after our invasion:

Nearly seven in 10 Americans believe it is likely that ousted Iraqi leader Saddam Hussein was personally involved in the Sept. 11 attacks, says a poll out almost two years after the terrorists' strike against this country.

Sixty-nine percent in a Washington Post poll published Saturday said they believe it is likely the Iraqi leader was personally involved in the attacks carried out by al-Qaeda. . . .

The belief in the connection persists even though there has been no proof of a link between the two.

President Bush and members of his administration suggested a link between the two in the months before the war in Iraq. Claims of possible links have never been proven, however.

That is one of the most extraordinary facts ever. People tend to avoid talking about this because it’s just so shameful and embarrassing. What could be a more powerful testament to the way in which this Administration so nakedly traffics in falsehoods, the susceptibility of Americans to be manipulated by rank cartoonish brainwashing, and worst of all, the profound failure of the media to fulfill its purpose of ensuring that our citizenry is informed and that the Government cannot falsely propagandize the nation? What does it say about our Government, our population and our media that we embrace such patent falsehoods even about the gravest of matters?

We are well on our way to having exactly this sad dynamic repeat itself with the NSA scandal. Karl Rove is peddling transparent falsehoods about the scandal because he knows we have a neutered media that will simply pass them along, at most tepidly and neutrally noting that some Democrats disagree, but never, ever pointing out that the claims are factually false. If things continue as they are, public opinion polls will undoubtedly soon show that a majority believes that Democrats oppose eavesdropping on Al Qaeda and that the NSA scandal-- as numerous dishonest Bush followers keep framing it -- is based on a disagreement about whether we should have to "hang up" when Osama calls.

At the very least, it is the media’s obligation to ensure that a fair and informed debate occurs regarding the President’s truly radical and un-American claim that he has the right to break the law, and that any laws which purport to limit the use of his "wartime" powers within the U.S. and against American citizens are, by definition, unconstitutional. In the Times article, after quoting Rove’s claim that Democrats oppose eavesdropping on Al Qaeda, Nagourney tepidly noted:

Yet it is difficult to think of a Democrat who has actually argued that it is not "in our national security interest" to track Qaeda calls to the United States, as Mr. Rove contested; he did not offer any examples of whom he had in mind.

But this is woefully inadequate to correct Rove’s lie. The reason it is "difficult to think of a Democrat" who opposes eavesdropping on Al Qaeda is because there is none of any prominence who believes such a thing. Rove’s statement about the NSA scandal and about what Democrats believe is just false, and the Times should say so.

When the Times fails to fulfill its responsibility to inform citizens that the Government’s statements are false, the false statements take root and then become conventional wisdom -- leading to travesties like 70% of the population believing that Saddam planned 9/11. Any doubt that this is happening with the NSA scandal will be dispelled by simply observing the way in which Bush followers are already starting to recite Rove’s false claims about the NSA scandal. Here is Michelle Malkin favorite A.J. Strata sharing his thoughts this weekend about what the NSA scandal means in light of Rove's speech:

In a week where Osama Bin Laden has resurfaced to once more threaten attack on this country, the liberals find themselves protecting Bin Laden’s right to communicate with his forces here in America, and pretending the risk is not Bin Laden, but the fact the liberals are not in power and the Republicans are in power.

Why can’t liberals differentiate between an attack and an invasion of privacy? Is it because to them Al Qaeda’s 9-11 attack was not an act of war but a legitimate political statement? One they support? . . .

What happens when America decides liberals simply see themselves as the brethren of Al Qaeda, who are a suppressed and misunderstood political movement with the right to kill Americans to make their case known. Well, if that happens there will be a political shift this nation sees once in a millennium.

After the Administration's campaign to convince the A.J. Stratas of the world that Saddam planned 9/11 was such a smashing success, its propaganda efforts are now in overdrive to convince the same people that the NSA scandal stems from the Democrats' desire to allow Al Qaeda to attack Americans. Contrary to the bravado coming from the White House, the NSA law-breaking scandal is a real threat to the Administration. If the media does its job and makes clear that this scandal is not about whether Democrats favor eavesdropping on Al Qaeda but, instead, about whether the President has the right to break the law because the "war" we are fighting entitles him to do so, then the actual issue will have to be aired.

The Administration’s central goal, as always, is to depict opposition to the President as evidence of one’s sympathies with The Terrorists. We just spent a whole weekend hearing about how Democrats sound exactly like Osama. And simultaneously, and not unrelatedly, we hear Karl Rove issuing the indisputably false claim that the NSA scandal stems from the Democrats’ desire to block the Administration from eavesdropping on their allies in Al Qaeda as they plot their attacks against Americans.

The media need not take sides in the NSA debate or in any other. But it is failing in its primary purpose if it continues to allow the Administration to blithely make false statements without informing their readers that the statements are false. Allowing the Government to make false statements is not neutrality; it is an abdication of the principal journalistic responsibility.

Karl Rove’s statements about the NSA scandal are patently false and are intended to prevent examination or even awareness of the Government’s claimed powers of law-breaking. It is the job of the media to make this known and to devote itself to exposing -- not neutrally passing along -- such government falsehoods.

Saddam copying Bush's talking points?

There are a few Bush-loving sites which are vehemently denying that GOP commentators compared Bush opponents with bin Laden by "pointing out" that bin Laden's latest message "sounds like" Democrats. I am currently have a mini-debate with a couple of those blogs and their readers in the Comments sections to those posts (including the omnipresent Tom Maguire in the latter), where the Bush lovers are earnestly protesting that all they were doing was making an innocent factual observation that bin Laden's speech had a lot of points that are often made by Democrats.

See, pro-Bush commentators didn't mean anything bad at all by this comparison, and they certainly did not mean to imply -- where would anyone possibly ever get that idea? -- that Democrats are al Qaeda supporters. It's just that bin Laden sounds a lot like Democrats and all they're doing is pointing that out. What's the problem?

In that case, I'm sure they won't mind at all if it's pointed out that Saddam Hussein's defense theory at his war crimes trial in Baghdad sure does sound an awful lot like the Bush Administration's theories as to why they have the right to violate the law. As Stirling Newberry points out (h/t American Coprophagia):

Saddam Hussein's defense against his indictment by an ad hoc Iraqi tribunal is simply that has the head of the state he had unlimited power to defend the state. That enemies of the state did not have legal protection, and therefore he cannot be charged for what he did during that time.

Hussein must somehow be obtaining copies of the letters which Alberto Gonazelez has been writing in order to defend George Bush and is apparently taking copious notes, because he has almost every one of Gonzalez's points down pat. Uncanny, isn't it? Bush and Saddam have exactly the same view of what it means to be President and how it means that they get to break the law as long as they are doing it to defend the country.

I'm not comparing Saddam and Bush, of course. Not at all. I'm only innocently observing that they sound exactly like one another when talking about their view of the power of a nation's President to violate the law. That's all. The similarity is undeniable. Anyone can see it. What could possibly be wrong with pointing it out?

Is this really the infantile level of debate to which we're descending? It's only January. Marvel at how much more precipitously things are going to sink between now and November.

Posting today

I will be posting several posts at Crooks & Liars today and will post the links here once those posts are up.

* * *

My first post is now posted here regarding the smear by Chris Matthews in which he said that mass murderer Osama bin Laden, in his new videotape, sounds like Michael Moore. Since then, there has been a slew of commentators making the same point with regard to anyone who opposes Bush's policies on war and terrorism. Newt Gingrich said this last night on Hannity & Colmes:

"I think it's quite clear as you point out, Sean [Hannity], that from this tape, that bin Laden and his lieutenants are monitoring the American news media, they're monitoring public opinion polling, and I suspect they take a great deal of comfort when they see people attacking United States policies."

So now it constitutes giving "comfort" to the enemy simply to be "attacking United States policies." And as my C&L post demonstrates, the White House has clearly embarked upon a strategy of expressly equating opposition to Bush's war and terrorism policies to treason.

A President burdened by an unpopular war and horrible approval ratings has no choice but to engage in gutter tactics like these. It's one thing for him and his followers to do this, but it's another matter entirely for our "journalists" to operate from this premise. It was all the rage on the cable shows in the days before the 2004 election to assert that bin Laden had released a new video in order to "endorse" Kerry, and they also claimed back then that bin Laden had lifted his talking points from the Kerry campaign.

There is no doubt that 2006 will be replete with these sorts of attacks. It is imperative that journalists not be permitted to get away with equating anti-Bush criticism with pro-terrorist subversion. That should go without saying, but it clearly doesn't.

It is still amazes how the very people who claim so solemnly that terrorism is the overarching problem of our generation play such cynical and self-serving games with it every chance they get.

* * *
My second post, relating to the new wave of fear-mongering provoked by the latest bin Laden message, and the need for Bush opponents to formulate a strategy for addressing and undermining this hysteria, is now posted here.

Various matters

A few miscellaneous items of interest:

(1) Following up on the post yesterday about George and Kellyanne Conway, there are two matters to note:

(a) Commenter Sully pointed to this passage from page 182 of David Brock’s book Blinded by the Right:

For the next few years, Conway ... spoke to me about little else but Clinton’s rumored sexual habits, and the supposed size and shape of his genitalia. On some level, Conway's hatred of Clinton seemed attributable to raw jealousy.

For the few people who e-mailed to opine that my post about the Conways was too aggressive or personal, please give that some thought. There are lots of things that probably explain George Conway’s obsession with this particular genitalia matter, but the important point is that the assaults and attacks engaged in by people like him throughout the 1990s degraded our political discourse in unprecedented ways.

(b) Speaking of which, George’s wife, Kellyanne, appeared on television last night with Joe Scarborough and this is what she did:

I just saw [MSNBC's] Joe Scarborough with airhead pollster Kellyanne Fitzpatrick go on and on about how "Democratic Senators" have been taking their cues from Bin Laden or vice versa and both had been persecuting our Commander-in-Chief.

Accusing Bush opponents of treason and subversiveness -- or working in tandem with Osama bin Laden -- is, in a real sense, a continuation of the sleazy Republican tactics of the 1990s. Nobody plays more games with matters of national security and terrorism than Bush followers, for whom those issues are little more than instruments to be used for domestic political gain.

UPDATE: Crooks & Liars has the (unpleasant-to-watch) video of Kellyanne comparing "the President's detractors" to Osama bin Laden.

(2) There is a glaring double standard for what is acceptable for political rhetoric in this country. Anything other than the most reverent and restrained criticism of George Bush is strongly condemned by the establishment media, and yet the most extreme types of accusations (treason, working with Osama, etc.) are endorsed and therefore prevalent against the President’s opponents.

Along these lines, Digby details two separate, quite illustrative episodes involving the odious Chris Matthews – (a) his remarks that bin Laden in his new video "sounds like Michael Moore"; and (b) some truly repulsive homophobic banter between Matthews and faux-cowboy Don Imus in which they guffaw while referring to "Bare-backing Mountain" and "Fudgepack Mountain." Digby contrasts that banter with the truly unbelievable panting of Matthews, along with G. Gordon Liddy, over George Bush’s aircraft-carrier strutting.

Peter Daou is demanding an apology from Chris Matthews for his equating Michael Moore to Osama bin Laden, and is urging everyone in the blogosphere to join and demand that Matthews apologize. Digby in the post linked above provides the contact information for Matthews. And a new website has been created to leave your comments for Chris Matthews regarding his behavior.

(3) Armando has an excellent post lamenting the inability and/or refusal of certain timid Democratic types to clearly articulate the real dangers posed by the Bush Administration. I really believe that this is one of the central problems in mounting a real challenge to the excesses of this Administration – that even so many Democrats have been bullied for so long that they are afraid of standing up in any real way to the Administration, because they doubt their ability to persuade Americans of their views.

As a result, they dribble out entirely half-hearted and vague protests which are so incoherent that they are incapable of letting anyone even know what their position is, let alone persuading anyone of that position. They then point to the fact that Americans don’t agree with these (tepidly expressed) protests as a reason not to pursue them more aggressively. It’s a vicious, self-defeating cycle which has been George Bush’s best friend.

(4) Jane Hamsher has done some superb blogging the past few days regarding The Washington Post’s Ombudsman Deborah Howell and Howell's flatly false statement about the Abramoff scandal. This episode is a real case study in how blogging can have a meaningful impact on how events are reported. Adding to Jane’s tenacity were Atrios and John at Crooks & Liars, among others, and as a result, Howell was forced by the unrelenting tidal wave of protests into a reluctant retraction, and the Post was so upset by the intensity of the protests that they actually eliminated their Comments Section on their blogs.

The important point is that they felt the wrath of readers as a result of their inaccurate reporting – whereby they simply ingested and then disseminated GOP talking points that were false – and this episode can only make them more careful in the future.

(5) Both Digby and Sean-Paul Kelley have good posts regarding mistakes they believe Democrats are making in talking about the Abramaoff scandal.

(6) The Heretik’s takes on pretty much every issue are always unique and entertainingly expressed. I highly recommend this post regarding the Administration’s rhetoric in defense of its illegal eavesdropping.

(7) I have a new post from last night up at C&L regarding the way in which this Administration has destroyed U.S. credibility by a steady stream of statements which have, time and again, turned out to be false. For the first time in my lifetime, many people immediately disregard -- not subject to scepticism, but outright disregard -- statements of purported fact which they hear from the Government. Many Americans generally, as well as our traditional allies, have arrived at the sad and counter-productive point where they simply don’t trust what the Administration says. Given the history of its statements and conduct (which, regardless of the reason why, have proven over and over to be inaccurate), any rational person would do the same.

The Justice Department tries again

On December 22, 2005, the Department of Justice issued a 5-page letter outlining its arguments as to why the President’s NSA warrantless eavesdropping program was legally justified. Those arguments have been thoroughly rebutted, including by the independent and nonpartisan Congressional Research Service (which I discussed briefly here) ; this letter from 14 law professors and former government lawyers; and this comprehensive compilation from The Left Coaster of all the arguments marshaled in the blogosphere against the DoJ’s legal position, including the numerous posts I have written on all of these legal issues.

In response to all of these arguments, the DoJ returned to the drawing board and yesterday released a 42-page single spaced letter (.pdf) elaborating on its original arguments, adding a few new ones, and advancing some positions which clarify both what this scandal is about and the unprecedented, truly limitless powers claimed by the Administration. The most notable new component of the DoJ’s position is its declaration that, if necessary, it will attack the constitutionality of FISA itself if it is found that FISA "impedes" the President’s power to eavesdrop on Americans as part of the fight against terrorism (Letter at pp. 3 & 35).

Most of the legal arguments against the DoJ’s position have already been articulated in the sources cited above, so rather than re-create a comprehensive legal response to these arguments, it seems more productive to make a few observations about the new facets of the DoJ’s position:

(1) It is now beyond dispute that the Administration is claiming that George Bush has the right to order any activity or action on the part of the Government -- including against American citizens and even if it transgresses the limitations of the law -- as long as the President simply claims that such actions are necessary to protect America against terrorists. According to the Administration, then, neither the law, nor the courts, nor Congress, nor anything else, can interfere with, limit or even review the President's powers. Thus, says the DoJ:

"Because the President has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al Qaeda, FISA would impermissibly interfere with the President’s most solemn constitutional obligation – to defend the United States against foreign attack."

That’s the Administration’s position in a nutshell. The Constitution not only allows, but requires, the President to defend the country. Therefore, the President is empowered to do anything at all which he "determines . . . [is] necessary to the defense of the United States from a subsequent terrorist attack," and any "interference" -- whether from the law, the Congress, or the courts -- is "impermissible."

In order to defend Bush’s eavesdropping program, the Administration is required to assert this position of presidential omnipotence. It has no choice. That’s because the DoJ’s principal argument as to why the President had the right to eavesdrop outside of FISA is that the Congressional resolution authorizing the use of force in Afghanistan and against al Qaeda (AUMF) implicitly granted the President an exemption to FISA -- even though it did not mention eavesdropping or FISA -- because the AUMF’s "expansive language . . .places the President’s authority at its zenith" (p. 11) and thus "affords the President, at minimum, discretion to employ the traditional incidents of the use of military force" including within the U.S. and against U.S. citizens (p. 10 & 11) (President can use these powers "wherever [terrorists] may be – on United States soil or abroad").

This position plainly amounts to an assertion that there can be no limits whatsoever placed on the President’s power to engage in any activities which he deems necessary to protect the country. Nobody can find a single sentence in these 42 pages which provides any basis whatsoever for recognizing such limitations on George Bush’s power. It is a naked theory of limitless presidential power. Thus:

* The Letter favorably cites an argument made by Attorney General Black during the Civil War that statutes restricting the President’s actions relating to war "could probably be read as simply providing ‘a recommendation’ that the President could decline to follow at his discretion." (p. 32; emphasis added);

* "[T]he President’s role as sole organ for the Nation in foreign affairs has long been recognized as carrying with it preeminent authority in the field of national security and foreign intelligence." (p. 30);

* The President is the "sole organ for the Nation in foreign affairs" (p. 1);

* "The President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected"), quoting a concurring opinion from radical Executive Branch fanatic Judge Laurence Silberman) (p. 10; emphasis added);

* "[I]t is clear that some presidential authorities in this context are beyond Congress’s ability to regulate" (p. 30);

* "Indeed, ‘in virtue of his rank as head of the forces, [the President] has certain powers and duties with which Congress cannot interfere’") (quoting Attorney General Robert H. Jackson) (p. 10);

* "Among the President’s most basic constitutional duties is the duty to protect the Nation from armed attack" and the "Constitution gives him all necessary authority to fulfill that responsibility." (p. 9);

* the President’s war powers "includes all that is necessary and proper for carrying these powers into execution" (p. 7; citation omitted, emphasis added) -- even in conflicts where, as the Administration concedes is the case here, no war has been declared by Congress (p. 26) (acknowledging the "important differences between a formal declaration of war and a resolution such as the AUMF").

Over and over again in this Letter, the DoJ depicts our government as vesting in the President full and unlimited authority to do anything - literally - which he deems necessary to protect the nation against foreign threats. No formal war declaration by Congress is required. The President can exert these powers both inside the U.S. and against U.S. citizens. Congress cannot "interfere" with the President and the courts cannot review what he is doing.

All of this leads directly to the question posed by Al Gore earlier this week:

Can it be true that any president really has such powers under our Constitution? If the answer is "yes" then under the theory by which these acts are committed, are there any acts that can on their face be prohibited? If the President has the inherent authority to eavesdrop, imprison citizens on his own declaration, kidnap and torture, then what can't he do?

The answer from the DoJ in its letter yesterday is "nothing."

(2) The truly radical nature of the Administration’s position is illustrated by the fact that it is forced to argue that FISA itself – to the extent it "impedes" the President’s power to eavesdrop on American citizens – is unconstitutional. For 30 years, FISA has existed as the framework for regulating eavesdropping by the Government. It was enacted by Congress as a response to serious abuses of this power, signed into law by the President, and nobody serious ever argued that it was unconstitutional. Indeed, the working assumption of both the Congress and the Bush Administration in the wake of 9/11 was that FISA would continue to regulate the Administration’s eavesdropping, which is why The Patriot Act amended FISA in the aftermath of 9/11 (p. 27, fn. 13).

But the Administration is engaged in a full-frontal assault on anything which can be used to argue that George Bush’s wartime powers are limited in some way. That means that if FISA is seen as such a limitation, then the Administration asserts that it can ignore and violate FISA because it suddenly believes it to be unconstitutional. Thus, the Letter claims:

* Congress knew when it was enacting FISA that it "was pressing or even exceeding constitutional limits" (p. 19);

* "Whether Congress may interfere with the President’s constitutional authority" to eavesdrop on Americans as part of the war against terrorists "poses a difficult constitutional question" (p. 29);

* "If an interpretation of FISA that allows the President to conduct the NSA activities were not ‘fairly possible,’ FISA would be unconstitutional as applied in the context of this congressionally authorized armed conflict." (p. 35). In other words, unless we all agree that FISA can’t restrict George Bush’s eavesdropping for as long as this "war" exists - which will be, by their own account, essentially forever - then it’s unconstitutional.

Anything which stands in the way of George Bush’s powers -- which "impedes" or "interferes" with those powers -- is now, according to the Department of Justice, unconstitutional.

And it is important to note here that the DoJ is expressly arguing that even if the AUMF did not grant Bush an exemption from FISA, he would have the right to violate FISA anyway because the Congress has no right to "interfere" in anything he does in defense of the country. Thus, while much is made in the DoJ letter of the argument that Congress silently authorized this eavesdropping when it passed the AUMF, the Administration is asserting the power to violate FISA regardless of whether Congress approved of eavesdropping outside of FISA.

(3) This Letter leaves no doubt, as if there were any before, that the DoJ in now in full advocacy mode on behalf of the President. This Letter is the work of the President’s lawyers scrambling to defend him from law-breaking, and does not even remotely pretend to be the work of an objective body investigating this matter. In light of that, isn’t it time to scoff at Alberto Gonzalez’s facially ridiculous claim that no Special Counsel is needed to investigate this matter because he, Gonzalez, has already done so and concluded that everything is perfectly legal?

If there were ever an issue for our ostensibly independent media to take up, and for that matter for the blogosphere to agitate for, it is the appointment of a Pat Fitzgerald-like Special Counsel to investigate whether the President and others in his Administration broke the law (and, since this program is continuing, whether they continue to break the law). No reasonable person can dispute that the DoJ is far, far beyond the point of constituting some independent law-enforcement check on the President.

(4) Once again, the DoJ does not contend that FISA itself authorized this eavesdropping or that the type of eavesdropping it engaged in is not covered by FISA. To the contrary, it specifically acknowledges that FISA is "generally applicable to the interception of communications in the United States" (p. 2), and "it is assumed for purposes of this paper that the activities described by the President constitute ‘electronic surveillance’ as defined by FISA, 50 U.S.C. section 1801(f)" (p. 17, fn 5).

Although the Letter claims that it is operating on this assumption in order to avoid the disclosure of classified information about the eavesdropping program, the DoJ could easily assert that it believes the eavesdropping complied with the mandates of FISA but that it is incapable of describing why this is so without disclosing classified information. But unlike Bush’s most slavish followers, the DoJ has never taken the position that its eavesdropping was permitted within the parameters of FISA. To the contrary, in this Letter, the DoJ refers to "[t]he President’s determination that electronic surveillance of al Qaeda outside the confines of FISA was ‘necessary and appropriate.’" (p. 36, fn. 21).

The need to defend George Bush’s law-breaking has put the DoJ in the position where it can defend him only by expressly advocating a theory of presidential power that really does bring us to the John Yoo vision of a President who – even in times of a permanent and undeclared war, and even against American citizens – can exert unlimited and unchecked powers ("Neither statute . . . can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.")

That's no longer the Yoo theory. It now describes the expressly claimed power of the Bush Administration. It is difficult to overstate how radical and consequential this development is.

National Review's new blog -- A vile case study in GOP filth-peddling

When Sam Alito’s wife cried, we were subjected to all sorts of solemn hand-wringing and pious sermons about the need for civility and dignity in our political system. And we're hearing some of these same lectures over Hillary Clinton's terribly crass and uncivil description of the Bush Administration as a dissent-squashing plantation. These GOP sermons are delivered by Republicans who are very, very concerned that such incivility will deter good people from entering public life.

Our media stars, always eager to show their serious and nonpartisan side, join in with these condemnations of the mean and uncivil Democrats. When doing so, they apparently fail to remember, and thus never mention, that the same Republicans delivering these dignity lectures spent the 1990s engaging in elevated and dignified discussions of semen stains on dresses, speculation about whether the President has unusual spots on his penis, tales of the lesbian First Lady’s murder of a male political aide with whom she was having an affair and subsequent efforts to make it look like a suicide, and all sorts of other similar sewer-scraping filth that they spewed for an entire decade in lieu of any substantive or political debate.

In one sense, those days seem to be far in the past. But they really aren’t, and the trash merchants who so fundamentally sullied our political life are still lurking like dormant viruses, eager to reclaim their glory days. The long-awaited and vitally important report of the Independent Counsel who spent 10 years and more than $20 million investigating Henry Cisneros’ payments to his mistress was leaked yesterday, a stark reminder of the bottom-scraping obsessions which dominated the national media and infected our political process throughout the 1990s.

National Review has created a museum dedicated to the Republican political gutter of the 1990s in the form of a new blog hosted by two of the trashy lowlifes who worked during the entire Clinton Presidency to turn our national political dialogue into one big Jerry Springer Show. The authors of the blog are George Conway III and his lovely wife, Kellyanne.

In the short time that this blog has existed, we have been regaled with stern condemnations of Jon Corzine’s payments to his girlfriend "a year following his divorce from wife of 33 years, Joanne"; celebrations of "the eighth anniversary of the deposition testimony [in the Paula Jones case] that earned Mr. Clinton his suspension" from the Bar; and a post devoted exclusively to touting a truly despicable article by Accuracy in Media's Cliff Kinkaid regarding Bill Clinton’s public campaign to encourage healthier diets among Americans, which said this:

If Clinton can persuade kids to eat right, that's great. But let's face it: his sexual appetite has been as serious a problem as what he eats. And it's in the sexual arena that he could really perform a public service. He should step forward and campaign against sexual diseases. That wouldn't be a laughing matter.

In fact, Clinton might be valuable in warning young people not to engage in oral sex. Clinton, who exploited Monica Lewinski for sexual gratification, could cite a Swedish study finding that some mouth cancers are caused by a virus contracted during oral sex. The study, conducted at the University of Malmo, found that individuals orally infected with human papilloma virus, HPV, are at a higher risk of developing oral cancer.

Kerstin Rosenquist, who headed the study, said that mouth cancer has been on the rise among young people and that the prevalence of HPV could be one of the factors.
It is a distinct possibility, of course, that more young people are engaging in oral sex and getting mouth cancer because of the example set by former junk food junkie Bill Clinton. But don't expect Mika Brzezinski to do a report on that. That might remind people of how much of a rogue he was.

This is the filth out of which the Conway couple emerged, and in which, along with so many self-righteous Bush-loving moralists, they continue to wallow.

Since the early-1990s, George Conway has been a partner at the prominent Manhattan law firm Wachtell, Lipton, Rosen & Katz, where he worked with rejected Bush judicial nominee Miguel Estrada (I was an Associate at that firm for a couple of years after law school in the mid-1990s but had minimal personal interaction with Conway and, to my recollection, none with Estrada). Conway came to be celebrated in Republican circles when it was uncovered that, while at Wachtell Lipton, he had been secretly working to bring about the Paula Jones sexual harassment lawsuit (which ended up being summarily dismissed by a federal court as so lacking in evidence that no reasonable jury could ever find in favor of Jones), and had deceitfully concealed his work from his own partners. He also secretly worked with Linda Tripp and helped engineer her initial meeting with Ken Starr.

This great and courageous crusader for his political principles hid his work on the Paula Jones case, covering it up because he was petrified that his corporate clients and law firm partners would discover the company he was keeping. Out a fear of offending them, and knowing that his partners would not approve of the work he was doing, he worked secretly in the dark alleys late at night to bring about the trashy, lowly scandals which became a Republican obsession. As the New York Times article which exposed him reported:

As it turns out, some of the most serious damage to Bill Clinton's Presidency came not from his high-profile political enemies but from a small secret clique of lawyers in their 30's who share a deep antipathy toward the President, according to nearly two dozen interviews and recently filed court documents.

While cloaking their roles, the lawyers were deeply involved--to an extent not previously known--for nearly five years in the Paula Jones sexual misconduct lawsuit. They then helped push the case into the criminal arena and into the office of the independent counsel, Kenneth W. Starr. . . .

George T. Conway 3d, a New York lawyer educated at Yale, shared Marcus's low view of President Clinton. When the Jones case led to Ms. Lewinsky, Marcus and Conway searched for a new lawyer for Mrs. Tripp. . . .

Conway wanted his role kept hidden as well, because his New York law firm, Wachtell, Lipton, Rosen & Katz, included influential Democrats like Bernard W. Nussbaum, a former White House counsel. Conway's name does not appear on any billing records.

And as Salon reported:

[Firm spokeswoman Liesl] Noll confirmed that Conway, a 34-year-old conservative activist, had recently informed the firm's stunned partners that he had worked for free and without their knowledge on the Jones case, writing the crucial Supreme Court brief that successfully argued Jones' suit should proceed despite the fact that Clinton was still in office.

And, as set forth below, he was also the individual responsible for the dissemination to Matt Drudge of the story about the spots on Bill Clinton's penis. So that’s George Conway. Isn't it about time to hear some more lectures from him about the need for dignity in our political discourse and about the shame of lawyers who act unethically?

Conway's wife and now co-blogger, Kellyanne, is a perfect match for him. Having spent the latter half of the 1990s (before she married George) peddling herself around as one of the soldiers in the army of young, blondish, mascara-drenched Republican loyalists who made a career for themselves digging into Bill Clinton’s sex life, she now runs around creating groups like "Women for Alito" and mindlessly reciting GOP talking points on Fox.

Bob Somerby at Daily Howler has described Kellyanne as "one of our most disingenuous pundits," and has documented multiple untruths she has spewed. Perhaps most revealingly, Kellyanne - who spent the 1990s along with her husband propagating the filthiest and most scurrilous gossip about the President – actually went on Fox and condemned protest songs against the war in Iraq by saying this:

"...it is never proper to be so critical of an administration or a President that you look like some anti-American zealot."

It looks like the Conways’ love of the political sewer is matched only by their love of irony.

According to a highly revealing (and highly revolting) expose in Salon, George’s involvement with the Paula Jones circle came as a result of his romantic interlude with Laura Ingraham (before he ended up marrying Ingraham-clone Kellyanne). It was Ingraham, according to the article, who "connected Conway with Matt Drudge during the summer of 1997." This all happened because Conway, who even back then earned well in excess of $1 million each year at Wachtell, Lipton, was:

Short, dark, slightly overweight, and painfully shy, he was also, at the age of thirty-three, unmarried and without a regular girlfriend at the time. He aspired to date tall blondes, preferably of the conservative persuasion.

And during this time, it wasn’t only his own private parts that Conway was obsessing over:

On October 8, 1997, Conway sent a long E-mail message via America Online to Matt Drudge. "Subject: Your Next Exclusive" is the caption on that message. "Remember me?" it begins. "I'm Laura's friend. We talked once about Kathleen Willey ... This is being given to you, of course, subject to your not disclosing the source." (Conway forwarded the same message to Ingraham the following day.)

The main topic of the October 8 message was not Willey but the "distinguishing characteristic," a matter nearly as sensitive as the Willey allegations. Like Coulter, Conway must have realized that with the leak of its details to Drudge, any further settlement negotiations could again be disrupted.

Davis certainly thought so. "Conway's leaking of this stuff certainly jeopardized a settlement," said Davis after examining the Drudge E-mail in 1999. "I had no concept, no idea that they did or would do such a thing [as to leak Willey's name]."

Somehow, in a way I can’t quite put my finger on, this photograph of the Conways tells one everything there is to know about them.

Examining filth-peddling relics of the 1990s like the Conways is not merely an exercise in masochistic nostalgia. As their new National Review blog demonstrates, lowly character smears are a quite current and integral weapon in the Republican arsenal. These gutter tactics and their vile purveyors haven’t gone anywhere. And it is beyond doubt that all of the Clinton smears which lowered our political discourse to the primordial level, along with many new ones, are being kept warming in the oven just in case Hillary gets anywhere near a Presidential election.

But the real reason to remember this despicable filth-peddling is because these same Republicans are being permitted by an amnesic and manipulated media to parade themselves around as the Paragons of Civility and Dignity. That Republicans can deliver dignity lectures to the media, which then dutifully reports them with a concerned face while repeatedly showing video of Sam Alito’s wife crying, is quite compelling evidence of just how wretchedly dishonest Republican moralizing is and, worse, how utterly dysfunctional our media has become.

I think the Conways are a great addition to the blogosphere and have no doubt that they will be generating all sorts of revealing commentary. Where else can you read one day about the mouth cancer that American kids are getting as a result of Bill Clinton’s oral sex addiction and the next day read sterling tributes to the need for dignity in the political process? And where else can you read smug commentary about Bill Clinton’s suspension from the Bar by a lawyer who secretly worked on a baseless sex scandal lawsuit while concealing his work from his own partners?

This nice couple is a lovely little microcosm of sanctimonious Republicans who manage to live in the sewer while sermonizing to the world about the virtues of cleanliness.

Funniest post ever

The Cornerites were lamenting how terrible -- just terrible -- the attacks are on Jack Murtha's war record and Kathryn Jean Lopez said this:

RE: PURPLE HEARTBREAKERS [Kathryn Jean Lopez]

Mac, I recoiled when that congresswoman called Murtha a coward and don't disagree with Webb. But one thing: Webb writes, "The political tactic of playing up the soldiers on the battlefield while tearing down the reputations of veterans who oppose them could eventually cost the Republicans dearly." Is that an actual strategy out there? As I recall the White House tried to shut the Swift Vets down.

That really is the funniest post ever.

UPDATE: It seems that Kathryn Jean has received some eloquent e-mails politely objecting to this post of hers, causing her to offer a very believable and coherent explanation as to what she meant.

Assisted suicide case shows the Administration's true colors

The Supreme Court yesterday ruled 6-3 in Gonzalez v. Oregon that Attorney General John Ashcroft lacked the authority under the Controlled Substances Act of 1970 (the CSA) to "interpret" that statute -- which was intended to regulate drug usage -- as prohibiting physician-assisted suicide, which the State of Oregon legalized by referendum in 1994.

The legal issues in the case turn (ostensibly) on relatively obscure matters of statutory interpretation. The far more interesting aspect of this case is its factual background -- the way in which this whole dispute arose as a result of the Bush's Administration's attempts in the weeks after 9/11 to overturn Oregon's assisted suicide law. How this whole thing came about presents some interesting and truly disturbing insight into what the Bush Administration is really all about.

In 1994, Oregon citizens approved legislation allowing doctors to assist terminally ill patients (i.e, patients who are reasonably certain to die within 6 months) who want to bring about a peaceful and painless death. In 1997, Oregon voters rejected a referendum to repeal the law. The democratic process in Oregon twice resulted in a judgment by its citizens that terminally ill individuals should be permitted to have the assistance of their physician in choosing a dignified and peaceful death.

Unhappy with the outcome of democracy in Oregon, certain Republicans in Congress (led by Orrin Hatch and Henry Hyde) demanded that the Justice Department (through the DEA) revoke the federal registration of any doctors in Oregon who provide the death-inducing medication to the terminally ill patients who request it under the Oregon law. As the Supreme Court explained, the Justice Department refused to do so when Attorney General Janet Reno wrote to Hatch and Hyde, concluding:

that the DEA could not take the proposed action because the CSA did not authorize it to "displace the states as the primary regulators of the medical profession, or to override a state's determination as to what constitutes legitimate medical practice."

Unhappy with the notion that Oregon could make its own decisions about assisted-suicide, these same Republicans then introduced legislation in Congress in order to give the Attorney General authorization to revoke the federal licenses of any Oregon doctors who assisted in suicide under this law. These Republicans wanted to use federal law to override Oregon law despite the fact they have long claimed to be believers in "states’ rights" -- i.e., that the Federal Government’s power should be restricted and individual states should be able to make their own decisions in areas traditionally reserved to the states, which indisputably includes regulation of the doctor-patient relationship.

In any event, the Republican sponsors could not get their legislation enacted. Congress refused to provide the Attorney General with authority to revoke the registration of Oregon doctors who assist in suicide.

So, Republican opponents of Oregon's assisted suicide law tried and failed: (a) to have Oregon’s law repealed by referendum; (b) to induce the Justice Department to revoke the licenses of Oregon’s doctors who assisted in suicide; and (c) to enact legislation in Congress giving the Justice Department the right to revoke the registration of doctors assisting in suicide. Again and again, these crusaders were rebuffed by the democratic and legal processes.

But once the Bush Administration took power, democratic processes in this area ceased to matter. John Ashcroft was hell-bent on putting an end to physician-assisted suicide in Oregon because he personally believes it to be morally wrong, and he wasn’t going to let any legal barriers stand in his way of imposing his moral framework on Oregon.

When Ashcroft took office, the State of Oregon was concerned -- due to Ashcroft’s well-known opposition to assisted-suicide -- that he was going to take steps to impede Oregon’s statute. As a result, Oregon’s Attorney General wrote a letter to Ashcroft asking for a meeting to discuss his intentions, in reply to which Ashcroft had a subordinate send a letter that said this:

"I am aware of no pending legislation in Congress that would prompt a review of the Department's interpretation of the CSA as it relates to physician-assisted suicide. Should such a review be commenced in the future, we would be happy to include your views in that review."

That letter was sent on April 17, 2001. Less than seven months later, on November 9, 2001, Ashcroft caused the DoJ to blatantly breach its promise to Oregon and – while the whole country was focused on the September 11 and anthrax attacks – Ashcroft issued an "interpretation" stating that it was illegal under the CSA for Oregon doctors to assist in suicide. As the Supreme Court described it:

On November 9, 2001, without consulting Oregon or apparently anyone outside his Department, the Attorney General issued an Interpretive Rule announcing his intent to restrict the use of controlled substances for physician-assisted suicide.

Incorporating the legal analysis of a memorandum he had solicited from his Office of Legal Counsel, the Attorney General ruled "assisting suicide is not a 'legitimate medical purpose' within the meaning of 21 CFR 1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the Controlled Substances Act.

It cannot be overstated how reprehensible this is. Ever since September 11, the Bush Administration has insisted again and again that the threat of terrorism is an unprecedented existential threat. We are at "war," and must devote our full attention to capturing terrorists and winning the war, even if it means severely restricting our constitutional liberties and taking other extreme measures to fight this war.

And yet, less than two months after September 11, what was the Justice Department doing? What was the Attorney General's attention devoted to? Working in secret, and in violation of its promises to the State of Oregon, to figure out how it could trample on the democratic process and on principles of states rights which conservatives claim to believe in, all in order to block terminally ill people from choosing how to die because John Ashcroft and James Dobson think that it’s immoral to exercise that choice. That’s what Ashcroft’s DoJ was doing in the weeks after September 11.

For the last four years, this Administration has cynically exploited the September 11 attacks and the supposedly overarching terrorist threat to work unnoticed, wielding the ever-expanding powers of the Federal Government in order to implement a whole slew of moralizing, intrusive measures. In this time of alleged "war," the Administration has devoted substantial resources of the Federal Government -- including the DoJ, the FBI and other law enforcement agencies -- to measures as pressing as waging the war against adult pornography, the war against the morning after pill, and the vicious war against adult gambling.

But when it comes to anti-democratic impulses and rank hypocrisy, none of those things match the Administration’s behavior with regard to Oregon’s assisted suicide law. These crusaders for the democratic process, majority will, and states’ rights simply lied to the State of Oregon, trampled on the will of a majority of Oregon’s citizens, and used the power of the Federal Government to override laws regulating medical treatment, an area which has always been reserved for the states.

And this was all done inside the Justice Department, engineered by John Ashcroft, literally in the weeks (before and) after September 11. This was all happening while the country was focused on September 11, the anthrax attacks which the DoJ never solved, enactment of the Patriot Act, and scores of other newly pressing concerns brought about by these terrorist attacks. But in the weeks before September 11 and in the weeks immediately after, the priority of the Attorney General was figuring out how to override the will of Oregon voters in order to prevent terminally ill patients from choosing how to die.

The Administration has skillfully used fear-mongering over terrorism to obscure the extent to which intrusive religious conservatism is shaping and molding almost every aspect of U.S. domestic policy. Agencies and sub-agencies which receive relatively little attention but which have great influence on domestic policies have, in many cases, been turned over to religious extremists, and the lack of light being shined on these bureaucratic crevices in Washington means that they are running wild, without any real restraint or opposition.

Americans are going to wake up one day and look at the results of these largely covert activities and find that there is a whole panoply of intrusive, religion-driven restrictions embedded into federal law in almost every sector. Not even the September 11 attacks slowed these efforts. To the contrary, as these assisted suicide manueverings demonstrate, the terrorists attacks were used, and continue to be used, to enable the Administration to pursue measures which it knows the country would not accept if it were paying attention to them.

Invasion of the dirty masses

(Updated below)

The principal benefit from the emergence of the blogosphere is that it has opened up our political discourse to a much wider and more diverse group of participants. Previously, establishment journalists and their hand-picked commentators were the sole vehicle for the dissemination of political opinions. The only commentators and opinions which received any real attention were the ones which establishment journalists deemed worthy of attention. Those who were outside of the club of established journalists were ignored and unable to have their opinions heard.

All of that has changed with the blogosphere. The blogosphere is a hard-core and pure meritocracy. It doesn’t matter who you are or what your pedigree is. You either produce persuasive arguments and do so with credibility, or you don’t. Whether someone has influence in the blogosphere has nothing to do with their institutionalized credentials and everything to do with the substance of what they produce. That is why even those who maintain their anonymity can be among the most popular, entertaining and influential voices. The blogosphere has exploded open the gates of influence which were previously guarded so jealously by the establishment journalists.

For precisely that reason, many establishment journalists have raging contempt for the blogosphere. It is a contempt grounded in the fallacy of credentialism and a pseudo-elitist belief that only the approved and admitted members of their little elite journalist club can be trusted to enlighten the masses. Many of them see blogs as a distasteful and anarchic sewer, where uncredentialed and irresponsible people who are totally unqualified to articulate opinions are running around spewing all sorts of uninformed trash. And these journalistic gate-keepers become especially angry when blogospheric criticism is directed towards other establishment journalists, who previously were immune from any real public accountability.

The irony, though, is that many of these establishment journalists have been forced to accommodate the growing influence of the blogosphere by starting blogs of their own. And the unedited and immediate format of blogging means that they sometimes unintentionally reveal their real mindset, and one can see it in the light of day.

The blog over at The New Republic, called The Plank, provides countless examples of establishment journalists' embittered, self-loving thought processes at work. In some ways, The Plank is the national headquarters for petty journalistic elitism and the fallacy of credentialism. At The Plank, those who are properly credentialed are entitled to an immediate presumption of the rightness of their opinions (regardless of the substantive merit), and opinions expressed by those who are without these TNR-recognized credentials are presumptively worthless.

This post from The Plank's Jason Zengerle – in which he opines with regard to the NSA scandal that "some of the outrage is in fact outrageous" -- illustrates the problem perfectly:

David Rivkin and Lee Casey, who both worked as lawyers in the Reagan and Bush I Justice Departments, take to The New York Times op-ed page today to argue that President Bush's warrantless domestic surveillance program is legal. "The program's existence has now become public, and howls of outrage have ensued," they write. "But in fact, the only thing outrageous about this policy is the outrage itself."

I don't know enough about the law to know whether Rivkin and Casey are technically correct (although the fact that Cass Sunstein, as honest a broker as you're likely to find among law professors, thinks that Bush may well have been within his legal rights makes me think that some of the outrage is in fact outrageous).

Zengerle says that he is incapable of reaching his own conclusion as to whether the President broke the law, but is nonetheless willing to dismiss the outrage over this scandal – and even label the outrage itself "outrageous" -- based on nothing other than the say-so of Cass Sunstein. Without mentioning a single argument of Sunstein’s that he finds persuasive (indeed, without even indicating that he read any of Sunstein’s arguments), Zengerle turns up his nose at all of the protests over Bush's law-breaking as nothing more than the ignorant, base anger of the masses. After all, Cass Sunstein is an Approved, Credentialed and Important Person at TNR, so when he expresses an opinion, one can assume that it is likely correct.

In contrast to the towering giants of Credentialism like Sunstein, those whom Zengerle has not heard of can barely be mentioned in good company, let alone be taken seriously. In this post, Zengerle explains why he is so offended by the widespread pedestrian criticisms of The New York Times’ Bill Keller based on the fact that the Times concealed the NSA story for more than a year after it learned of it.

In particular, Zengerle takes aim at the criticisms of the Times made by, to use Zengerle’s term, "a press critic named Jay Rosen." The bulk of Zengerle’s response is devoted to demonstrating that Rosen is a big nobody who Zengerle has never heard of and therefore can’t possibly be qualified to speak ill of Journalism Giant Bill Keller:

I don't know much about Rosen, other than that he must be taken somewhat seriously by media people, since he's frequently linked to on Romenesko (either that or he e-mails Romenesko every time he writes a new blog post). According to his bio, Rosen "had a very brief career in journalism at the Buffalo Courier-Express" before going off to media studies grad school; he's been on the faculty at NYU since 1986.

Now, maybe in the two decades that have passed since he worked at an actual publication, Rosen's forgotten what it takes to put out one of those publications; or maybe the Buffalo Courier-Express had the unique ability, not to mention the unlimited resources, to both report the news and report on itself. But if the Times and most other media outlets actually abided by Rosen's transparency prescription, they wouldn't be able to produce first-rate stories like the one about the NSA's warrantless surveillance.

The snottiness here is breathtaking. According to Zengerle, the only reason why Rosen’s name can even pass the lips of anyone serious is because "he’s frequently linked to on Romenesko" (although that might only be because "he e-mails Romenesko every time he writes a blog post"). And Rosen has barely even worked in real journalism, and when he did, he worked at something called "the Buffalo Courier-Express," which Zengerle makes a point of mocking.

What is always missing from these snide dismissals is any consideration of the merits of the actual argument. People in these journalistic clubs will always defend each other from outside attacks no matter the merits, because they believe in their souls that their inclusion in the club by itself proves that they are superior to those outside of it when it comes to assessing news events and forming thoughts and opinions on them.

This morning, The Plank’s Michael Crowley lashed out at what he perceives to be unfair attacks on fellow establishment journalist Sue Schmidt of The Washington Post. Schmidt stated, falsely, that Jack Abramoff donated money to some Democrats. The Plank had previously demanded that the blogosphere "apologize" to Schmidt for what it believes were unfair criticisms of her, and this morning Crowley let loose his real thoughts about the crass, unregulated, uncredentialed world of blogging:

Perhaps my favorite part of this utterly inane attack is the commenter who opines, "Schmidt's getting paid like Armstrong Williams got paid." How does somone (sic) so stupid manage to operate a computer? Anti-TNR bloggers often tease us about our modest circulation numbers as compared to their impressive readerships. But if that's the kind of simpleton certain bloggers spend their lives entertaining, I, for one, don't mind the comparison. The relationship between a blog item and a response like the ones I'm discussing here is not new-media "journalism," nor is it activism. It's vaudeville. Except it's not even funny.

The never-ending parade of journalism embarrassments which we've witnessed -- from Bob Woodward and Judy Miller to the Times’ refusal to explain why it concealed this NSA story for a full year -- has exposed the decadent and corrupt underbelly of these media stars. The difference is that there was never a mechanism in the past for compelling them to account for their behavior and now there is. And nothing has exposed their fragile, self-absorbed and incestuous mindset more than the responses they give when defending each other.

One of the truly most damaging problems we have faced is that the people in these journalistic and political circles have cared far more about defending themselves and preserving their status in these clubs than they have cared about performing their role as journalists. They defend each other instinctively and truly see themselves as beyond criticism and above accountability, particularly from those who have not reached their lofty journalistic heights. The blogosphere has made it impossible for them to maintain that cocoon. They now have to hear criticism of their work and sometimes even have to lower themselves to addressing it. And as The New Republic bloggers often make crystal clear, they are quite unhappy about all of this.

UPDATE: Ezra Klein is not particularly enamored of the argument I make, to put it mildly, and explains why in a thoughtful (though misguided) post at his blog. I posted my reply to Ezra in his Comments section.

The Administration's NSA playbook is empty (updated)

It’s been more than a month since The New York Times first disclosed the existence of Bush’s illegal NSA eavesdropping program. One would think that the Administration by now has developed all of the defenses and justifications for this program which exist.

If last night’s CNN interview by Larry King of Attorney General Alberto Gonzalez is any indication, there simply are no justifications for it. The Administration is still incapable of answering the very first question which arose when this eavesdropping was first disclosed: why couldn’t the Administration comply with the extremely permissive provisions of FISA when eavesdropping? This CNN interview also demonstrates that the country’s most prominent "journalists" are still incapable of asking any probing or meaningful questions of our Government with regard to this scandal:

KING: General, isn't there a happy medium? Isn't there a way to get quickly to a judge who signs off on a warrant to tap or listen in? Isn't there a way to do that quick?

GONZALES: Larry, whenever you involve another branch of government in an activity regarding electronic surveillance, inherently it's going to result in some cases in delay. Perhaps in straightforward cases we can get authority relatively quickly but not all of these cases are straightforward and it's very, very important that the president has the agility and the speed to gather up electronic surveillance of individuals that may be in contact with the enemy.

Unbelievably, both King’s question and Gonzalez’s answer are predicated on the assumption that FISA prohibits eavesdropping until a warrant is obtained from the FISA court. Larry King is apparently unaware that FISA allows the Administration to begin eavesdropping immediately without a warrant, and they therefore don't need "to get quickly to a judge who signs off on a warrant to tap or listen in."

As a result, King was incapable of following up on Gonzalez’ answer by asking the painfully obvious question: since FISA allows for immediate warrantless eavesdropping, in what conceivable way does it fail to provide the "agility and the speed" to eavesdrop? (And had King managed to pose that question, he also could have asked: if FISA was inadequate, why didn’t the Administration seek changes to it from the GOP-controlled House, rather than simply deciding to violate it in secret?).

It appeared from the beginning of this scandal -- and it has now become unavoidably true -- that there is something deeply dishonest going on here. It’s axiomatic that if someone provides a completely incoherent reason for why they did something, they’re not disclosing their real motive. The need for "speed" in eavesdropping is plainly not why the President ordered FISA to be violated, because FISA expressly allows for immediate eavesdropping, and it doesn’t get any speedier than "immediate."

We still don’t know why the Administration broke the law here, what motive it had in refusing to comply with FISA. There don’t seem to be that many possibilities. It could be that the President simply believed that he should not be required to get permission from a court to eavesdrop on whomever he wants. It could be that the Administration wanted to install its theory of the President’s wartime law-breaking powers. And it could be that the Administration wanted to eavesdrop for reasons which the FISA court would not endorse.

What is clearly the case, as demonstrated by Gonzalez’s answer, is that whatever the Administration’s motives were for violating FISA, we have not yet learned what they are. In lieu of real answers to these questions, the Administration still thinks that it can get away with treating Americans, and our journalists, like idiots, by having Gonzalez say things like this:

We need to know who the enemy is. We need to know what the enemy is thinking. We need to know where the enemy is thinking about striking us again. And so
absolutely, this president is going to utilize all the tools that are available to him to protect this country and I think the American people expect that of the president of the United States, who is the only public official charged, not only with the authority with the duty of protecting all Americans.

And this:

And so, as the president said if someone in the United States, if you're an American citizen and you're talking to al Qaeda, we want to know why. I think it's very, very important that we know about communications that are occurring within the United States to folks outside the United States that may be affiliated with al Qaeda.

We know that on the attacks, with respect to the attacks on September 11th, we had the enemy here in our country and they obviously communicated with each other in order to initiate those attacks and that's why it's so very, very important that we have electronic surveillance of communications involving the enemy.

Whenever the Administration is asked why it violated the law, it spews out tributes to the Great Importance of Eavesdropping. Larry King is incapable of understanding this, but the issue is not whether the Administration should eavesdrop. Can’t journalists ingest the simple fact that whenever someone who is defending the Administration starts talking about the merits of eavesdropping, that is a loud and immediate signal to whatever journalist is being fed that rhetoric that the person is evading, not addressing, the issue?

This is not a hard point to understand. Everyone agrees we should eavesdrop. We all want eavesdropping on terrorists. That’s why a law exists which allows such eavesdropping, provided that it’s done with judicial oversight so that the Administration can’t abuse this power. Larry King doesn’t understand this distinction but Americans will, once Bush opponents articulate it clearly.

Gonzalez also wanted to assure us that there is no reason to have anything like a Special Prosecutor investigate the legality of the President’s conduct because a team of excellent, highly skilled lawyers has already looked at that conduct and concluded that everything was perfectly legal:

KING: Back to former Vice President Gore asking for a special counsel to investigate, would you object to that?

GONZALES: Well, I don't know why -- I don't know why there would be a need for a special counsel at this time, Larry, because what I can tell you is that from the very beginning, from its inception this program has been carefully reviewed by the lawyers at the Department of Justice and other lawyers within the administration and we firmly believe that the president does have the legal authority to authorize electronic surveillance in order to gather up foreign intelligence particularly, Larry, when we're talking about foreign intelligence of the enemy in a time of war.

Why would Al Gore possibly want a Special Investigator to examine the legality of George Bush’s conduct when George Bush’s own lawyers in the Justice Department already looked at it and said it was fine? Besides, when it comes down to it, says the U.S. Attorney General, legalities, shmegalities - "we're talking about foreign intelligence of the enemy in a time of war." That is the only defense the Administration has.

Finally, there was this odd exchange:

KING: Are you assuring that American citizens with nothing to hide have nothing to worry about?

GONZALES: Well, again, as the president indicated, and I'm only talking about what the president described to the American people in his radio address, we're talking about communication where one end of the communication is outside the United States and where we have reason to believe that a party on that communication is a member of al Qaeda or is a member of an affiliate group with al Qaeda.

King asked Gonzalez whether innocent Americans "have nothing to worry about" in terms of eavesdropping by the Government, and Gonzalez -- in claiming that it’s only Al Qaeda whom we’re eavesdropping on -- went out of his way to limit his assurances by saying that he’s "only talking about what the president described to the American people in his radio address." That would seem to suggest that there is eavesdropping on Americans outside of "what the President described to the American people in his radio address." What was Gonzalez referring to there? (And it's always worth noting that if we're only eavesdropping "where we have reason to believe that a party on that communication is a member of al Qaeda or is a member of an affiliate group with al Qaeda," then it becomes that much more difficult to explain why FISA warrants couldn't have been obtained for such eavesdropping).

The real point which emerges from this whole interview is this: the Administration can defend its law-breaking only with evasions and distractions. Its only tactic for justifying its conduct is to make irrelevant appeals to the need to "protect the American people" by eavesdropping which is clearly not a justification at all. That is why it is so imperative for Bush opponents to speak loudly, clearly and relentlessly on this issue. Once Americans understand that the Administration can eavesdrop on Al Qaeda to its heart’s content in compliance with the law -- and that everyone, including Bush opponents, wants full-fledged eavesdropping on Al Qaeda --Americans will want to know the real reason for the Administration's decision to break the law and to eavesdrop on Americans in secret.

UPDATE: As for the misleading claim advanced by Gonazalez and Bush followers in the blogosphere that "Clinton did it, too," Think Progress makes clear just how frivolous that argument is.

Dick Cheney stands with Muslim tyrants

Our foreign policy towards the Middle East is plagued by a glaring and fundamental contradiction. Ever since it became undeniably apparent that the weapons which we insisted justified our invasion of Iraq did not actually exist, the sole rationale we have been stuck with is that Saddam was a tyrannical ruler, and tyranny in the Middle East breeds hostility against the U.S. and is also morally wrong on its own terms. We tell the world that we are now in Iraq not in order to combat any specific danger, but to battle against the tyranny which oppresses Muslims and to bring freedom to that region.

One obvious problem with this theory is that our two closest Muslim allies in the Middle East -- by far -- continue to be two of the most repressive: Egypt and Saudi Arabia. This week, our Vice President is visiting our close allies, the tyrants who rule over each of these countries, in order to plot with them regarding what our joint approach should be to the pressing problems in that region:

Vice President Dick Cheney met with Egyptian President Hosni Mubarak Tuesday for talks on the political process in Iraq and the West's standoffs with Syria and Iran.

After meeting with Mubarak, Cheney was expected to travel to Saudi Arabia later Tuesday for talks with King Abdullah. . . . .

Saudi Arabia and Egypt - both key U.S. allies - are the two Arab powers behind an Iraqi national reconciliation conference that is expected to convene next month in
Iraq to clear the way for a larger Sunni participation in the political process.

George Bush has entertained both tyrants at his Texas "ranch," a distinction which, as we are so often told, is reserved only for Bush’s best-est friends in the whole world. The U.S. tightly embraces these two dictatorships for all the world to see.

It is obvious that we are not taking any steps to undermine these tyrannical regimes, nor are we going to be doing that any time soon. To the contrary, we prop them up with billions of dollars and substantial military aid, without which they would likely collapse within in a matter of months, and the Bush Administration vigorously defends this aid. With these policies, we consign 100 million Muslims in those two countries alone to brutal and absolute repression. These are the same people we are supposedly trying to persuade with our invasion of Iraq to think of us as benevolent liberators and to believe that we are occupying Iraq because we want to crush tyranny.

This is not to criticize our alliances with the Egyptian and Saudi governments per se. To the contrary, it’s hard to imagine a worst disaster than imposing democratic elections on those two countries, which would be tantamount to handing them over to anti-American Muslim extremists, if not to Al Qaeda itself.

But that’s precisely what exposes the core incoherence of our occupation of Iraq. Our policy in that region is plainly not to export democracy and emancipate Muslims from tyranny. A reasonable argument can be made that our policy is exactly the opposite – to strengthen those tyrannies which work in tandem with U.S. interests. Whether that is what our policy ought to be is a separate question from the fact that this plainly is our policy, which makes our explanations about why we are in Iraq incredible on their face.

It is very difficult to understand how we think that anyone is going to be persuaded by our insistence that we invaded Iraq in order to bring democracy to Muslims when the central cog of our foreign policy in the Middle East is to preserve the authoritarian rule over two of the largest and most significant countries in that region. What is the point of pretending to have a policy that the whole world can see we don’t really have? How can that possibly do any good? Do we really think that Muslims don’t notice this fundamental inconsistency between what we say we are doing in the Middle East and what we are actually doing?

Blogger economics

Prior to starting this blog, I was a regular reader of countless other blogs. Invariably, at some point during the year, virtually every one of those blogs asked their readers to donate money to the blog. Although I donated for a couple of my favorite bloggers, I never fully understood the rationale behind the request. It seemed to me that blogging was a hobby they chose to do and people generally don’t receive donations for their hobbies.

Now that I am blogging myself, I have a very clear understanding of why those requests, as unpleasant as I’m sure they were to have to make, are necessary. To do it correctly and meaningfully, blogging really is a full-time job, sometimes even more consuming than that. Like newspapers or magazines, bloggers create and provide regular content for their readers that provokes, informs, entertains and, at its best, galvanizes.

Especially for blogs that are comprised of just one or two people, the workload is heavy and continuous. For a blog to have any impact, the blogger is almost certainly foregoing other income-producing activities in order to create content for the blog. I know I have done so and want to continue to do so. I am passionate about the issues I am blogging about; I believe that blogs can have a real impact; and I want to be able to continue to devote my energies to these matters.

Beyond the blog itself, many bloggers are attempting to translate the energy and passion of the blogosphere into something which can have an impact on actual political events. I am currently involved in a couple of projects with other bloggers devoted to developing methods for having the influence of the blogosphere extend beyond the computer screen. In this way, blogging becomes a form of political activism as well. But the unfortunate reality is that being able to devote such a large portion one’s energies to this work depends upon finding a way to make it financially feasible.

All of this is by way of explaining that I have put a "Make a Donation" Paypal button on the side of the blog and am requesting that anyone who enjoys this blog and who is so inclined to support it do so by making a contribution. Anyone who wants an alternative method can e-mail me and I will provide the information. I love working on this blog and will continue to, but I need find a way to do so in a way that is not financially burdensome. I know there are people who can’t donate and, either way, I’m genuinely appreciative of every person who reads this blog.

Gore's speech

(UPDATE: I have a post up at C&L regarding the Gore speech today)

Al Gore gave an astoundingly good speech today, attacking the Bush Administration's lawless eavesdropping in a very reasoned but still clear and principled way. I never liked Al Gore when he was a politician - he was calculating, self-serving and programmable. But he was always interested in ideas and has clearly been emancipated as a result of his loss from the forces which suffocated him forever.

If Bush opponents made the case against the Administration the way Gore did today - with appeals to the universal American values and traditions which are so plainly under assault by George Bush -- then overly cautious Bush opponents could stop fretting about the scary political implications of standing up to Bush's law-breaking. Americans understand the arguments Gore made on an instinctive level.

The whole speech by Gore (who, it's worth remembering, received more votes than Bush when they ran against each other) should really be read. Here are a few highlights:

The result was the Foreign Intelligence and Surveillance Act (FISA), which was enacted expressly to ensure that foreign intelligence surveillance would be presented to an impartial judge to verify that there is a sufficient cause for the surveillance. I voted for that law during my first term in Congress and for almost thirty years the system has proven a workable and valued means of according a level of protection for private citizens, while permitting foreign surveillance to continue.

Yet, just one month ago, Americans awoke to the shocking news that in spite of this long settled law, the Executive Branch has been secretly spying on large numbers of Americans for the last four years and eavesdropping on "large volumes of telephone calls, e-mail messages, and other Internet traffic inside the United States." The New York Times reported that the President decided to launch this massive eavesdropping program "without search warrants or any new laws that would permit such domestic intelligence collection."

During the period when this eavesdropping was still secret, the President went out of his way to reassure the American people on more than one occasion that, of course, judicial permission is required for any government spying on American citizens and that, of course, these constitutional safeguards were still in place.

But surprisingly, the President's soothing statements turned out to be false. Moreover, as soon as this massive domestic spying program was uncovered by the press, the President not only confirmed that the story was true, but also declared that he has no intention of bringing these wholesale invasions of privacy to an end.

At present, we still have much to learn about the NSA's domestic surveillance. What we do know about this pervasive wiretapping virtually compels the conclusion that the President of the United States has been breaking the law repeatedly and persistently

A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution - our system of checks and balances - was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men."

An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution - an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

Thomas Paine, whose pamphlet, "On Common Sense" ignited the American Revolution, succinctly described America's alternative. Here, he said, we intended to make certain that "the law is king."

Vigilant adherence to the rule of law strengthens our democracy and strengthens America. It ensures that those who govern us operate within our constitutional structure, which means that our democratic institutions play their indispensable role in shaping policy and determining the direction of our nation. It means that the people of this nation ultimately determine its course and not executive officials operating in secret without constraint.

The rule of law makes us stronger by ensuring that decisions will be tested, studied, reviewed and examined through the processes of government that are designed to improve policy. And the knowledge that they will be reviewed prevents over-reaching and checks the accretion of power. . . . .

Can it be true that any president really has such powers under our Constitution? If the answer is "yes" then under the theory by which these acts are committed, are there any acts that can on their face be prohibited? If the President has the inherent authority to eavesdrop, imprison citizens on his own declaration, kidnap and torture, then what can't he do?

The Dean of Yale Law School, Harold Koh, said after analyzing the Executive Branch's claims of these previously unrecognized powers: "If the President has commander-in-chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution."

The fact that our normal safeguards have thus far failed to contain this unprecedented expansion of executive power is deeply troubling. This failure is due in part to the fact that the Executive Branch has followed a determined strategy of obfuscating, delaying, withholding information, appearing to yield but then refusing to do so and dissembling in order to frustrate the efforts of the legislative and judicial branches to restore our constitutional balance.

Moreover, if the pattern of practice begun by this Administration is not challenged, it may well become a permanent part of the American system. Many conservatives have pointed out that granting unchecked power to this President means that the next President will have unchecked power as well. And the next President may be someone whose values and belief you do not trust. And this is why Republicans as well as Democrats should be concerned with what this President has done. If this President's attempt to dramatically expand executive power goes unquestioned, our constitutional design of checks and balances will be lost. And the next President or some future President will be able, in the name of national security, to restrict our liberties in a way the framers never would have thought possible. . . .

We have a duty as Americans to defend our citizens' right not only to life but also to liberty and the pursuit of happiness. It is therefore vital in our current circumstances that immediate steps be taken to safeguard our Constitution against the present danger posed by the intrusive overreaching on the part of the Executive Branch and the President's apparent belief that he need not live under the rule of law.

I endorse the words of Bob Barr, when he said, "The President has dared the American people to do something about it. For the sake of the Constitution, I hope they will."

Bush followers are not conservatives

Al Gore is scheduled to speak today at noon alongside long-time conservative Bob Barr in protest of the Bush Administration’s lawless NSA eavesdropping program. Such a joint appearance not only highlights the real opportunity to turn this scandal into one that transcends the liberal-conservative battles, but also demonstrates just how far removed this Administration is from anything remotely resembling principles of conservatism -- or, for that matter, any principles which call for some restraint on Federal Government power.

It has long been clear that there is nothing remotely "conservative" about this Administration, at least in the sense that conservative ideology has stood for a restrained Federal Government which was to be distrusted. There has been a long line of decidedly un-conservative actions by this Administration -- from exploding discretionary domestic spending to record deficits to an emergency convening of the Federal Government to intervene in one woman’s end-of-life decisions to attempts to federalize, even constitutionalize, marriage laws – all of which could not be any more alien to what has been meant by "conservatism" for the past 40 years.

The NSA scandal ought to make it impossible for any intellectually honest conservatives to continue to support this Administration. It is a scandal in which the Administration has trampled on two bedrock conservative principles -- an unintrusive Federal Government and adherence to the rule of law. Newsweek’s Jonathan Alter, one of the few mainstream journalists who has both recognized and articulated that the NSA scandal constitutes a genuine crisis in our government, explained in his column this week:

But "Snoopgate" is already creating new fissures on the right. The NSA story is an acid test of whether one is a traditional Barry Goldwater conservative, who believes in limited government, or a modern Richard Nixon conservative, who believes in authority.

This is exactly right. Under the Bush Administration, the term "conservative" long ago ceased to signify a political ideology and has instead become a personality cult. As Alter says, the conservatism of Bush followers is first and foremost about a belief in authority – the authority of George Bush. Literally, what now determines whether one is a "conservative" is the fealty one demonstrates to George Bush, the Leader and Commander-in-Chief.

Adherence to any particular political principle has become irrelevant. Whatever George Bush does or says becomes the definition of "conservatism," even if what he is doing and saying has nothing to do with, or is even antithetical to, precepts of actual conservatism. One is a "conservative" in exact proportion to the extent of one’s loyalty to Bush.

Although Bush followers long maintained the fiction that they were "conservatives," they are, at long last, giving up the pretense. Bush lover Fred Barnes has a new Book of Reverence entitled "Rebel-in-Chief," which Andrew Sullivan, having reviewed the book for the Sunday Times, has labeled a "fellatial biography" that "makes Powerline read like the Daily Kos." If the classicly glorifying cover is any indication, Sullivan’s description is accurate:

















Bush followers who are discussing the book are openly celebrating the fact that George Bush has dispensed with any notions of a restrained Federal Government and has, instead, converted the Federal Government into an instrument for imposing a "conservative" vision on America. Here is Christopher Wilcox in the New York Sun drooling with admiration for both Barnes' book as well as its subject:

One of Mr. Barnes's most important points is how unhappy many conservatives are with Mr. Bush's big-spending ways. This certainly has been reported elsewhere, but Mr. Barnes goes further, claiming that Mr. Bush is deliberately transforming the conservative movement from its small-government orientation to a more activist approach.

What does it even mean to say that Bush is "transforming the conservative movement from its small-government orientation to a more activist approach." What is left of "the conservative movement" if one guts from it its "small-government orientation"? Isn’t that somewhat like transforming the peace movement away from its opposition to war or the environmental movement away from its opposition to pollution?

In reviewing Barnes’ paean, the Bush worship club that calls itself "Blogs for Bush" makes equally clear that conservatism needs only George Bush, not any of that obsolete abstract stuff about small government. Explaining to us with great understatement that the Commander-in-Chief is "liked and admired by a very staunch set of supporters," Blogs for Bush tells us, with no trace of irony:

Don't get me wrong, I'm a conservative and believe that conservatism is the only proper way to govern, but like President Bush I see no reason to tilt at windmills. To fight to terminate the Department of Education is to merely give the liberal/left opposition the opportunity to campaign against you as "anti-education" - much better to just pour some conservative wine in the old, liberal bottles...use the bloated budget of the Department of Education to advance conservative education reform.

So when Democrats had primary control of the Federal Government, conservatives spent the entire time loudly demanding that the size and reach of the Federal Government be severely curtailed. But that was all just for show. When the same conservatives acquired full-scale control of the Federal Government, they decided that restraining the Federal Government was just "tilting at windmills." No need to bother oneself with that now. So they decided instead to dispense with all of those silly small government pipe dreams and, to fill the gap, they are embracing and expanding the power of the Federal Government in order to implement their "activist" conservative vision on America.

That the Bush Administration is engaged in such an un-conservative project is not news to anyone who has been paying even minimal attention. But it is news that they are admitting it. And Bush opponents ought to be exploiting this very real and growing tension in order to demonstrate that there is nothing remotely partisan or ideological about the NSA law-breaking scandal.

Real conservatives – meanings ones who have objectives and beliefs other than the glorification of George Bush – ought to be most offended by Bush’s law-breaking. One can defend Bush’s secret, lawless eavesdropping on American citizens only if one has a virtually blind faith in the Bush Administration, and yet the core instinct of conservatism has long been expressed by this sentiment:

It is a mistake to think of the Bush Administration as "conservative." There is nothing remotely conservative about it. It resembles far more strongly a cult of personality which glorifies the authority of the leader and which desires no limits on his power. But regardless of what one thinks of what has long been referred to as "conservatism," there is a fundamental tension between that ideology and the beliefs of Bush followers.

Al Gore’s appearance with Bob Barr is reflective of that tension and uses it quite powerfully to make the point that the NSA scandal is not the by-product of the standard liberal-conservative split. Bush's invasive, illegal eavesdropping promotes neither liberal nor conservative values. To the contrary, it squarely contradicts both, and promotes nothing other than the Bush Movement.

In terms of ensuring that there are real consequences to Bush’s law-breaking, it would be highly constructive for there to be a lot more events like this Gore-Barr speech. There is no reason to continue to ignore these long-simmering divisions which are waiting to explode.

GOP Dog Training

I have two dogs who are well-behaved only when they think it’s in their interests, and so I’m always on the look-out for really effective dog training methods. The GOP definitely has well-honed dog-training skills, and as a result, they now have a very good, well-behaved dog named Arlen. He used to be a bad dog, but no longer:

Step 1: Arlen the Bad Dog

The Republican expected to chair the Senate Judiciary Committee next year bluntly warned newly re-elected President Bush against putting forth Supreme Court nominees who would seek to overturn abortion rights or are otherwise too conservative to win confirmation. . . .

"When you talk about judges who would change the right of a woman to choose, overturn Roe v. Wade, I think that is unlikely," Specter said, referring to the landmark 1973 Supreme Court decision legalizing abortion.

"The president is well aware of what happened, when a number of his nominees were sent up, with the filibuster," Specter added, referring to Senate Democrats’ success over the past four years in blocking the confirmation of many of Bush’s conservative judicial picks. "... And I would expect the president to be mindful of the considerations which I am mentioning."

Step 2: Arlen is Beaten with a Rolled-up Newspaper

The Washington Times - 11/08/04:

James Dobson, founder of Focus on the Family, says he is not convinced by Mr. Specter's assurances that all judicial nominees will be treated fairly. "He is a problem, and he must be derailed," Mr. Dobson said on ABC's "This Week."

Mr. Dobson described Mr. Specter's original remarks last week as "one of the most foolish and ill-considered comments that a politician has made in a long time." "There are many, many members of that committee [who] are more qualified and less of a problem then Senator Specter," he said.

National Review Editors - 11/05/04:

It follows that Arlen Specter should not be elevated to the chairmanship of the Senate Judiciary Committee. . . Specter's litmus-test attitude (after pressure on Thursday, he backtracked, in a statement, saying he has no litmus test — but we know him too well to take the chance) is wrong in principle, because it demands that judges pledge fealty to an anti-constitutional decision. For the social conservatives who just elected Republicans to office for the very purpose of getting sound judges confirmed, Specter's elevation would not just be a symbolic slap in the face but an actual betrayal. Find the man another sinecure.

The Washington Post - 11/14/04:

Appearing yesterday on "Fox News Sunday," Majority Leader Bill Frist (R-Tenn.) called Specter's comments "disheartening" and said the Pennsylvanian had "not yet" made a persuasive case for the chairmanship. Frist said Specter will meet this week with the Senate GOP leadership as well as Judiciary Committee Republicans but that a final decision will not be made until January.

Step 3: Arlen Whimpers and Lays Quietly on the Floor

However, conservatives began a campaign to deny him the chairmanship after his comments on Roe v. Wade and judicial nominees. Specter then met with many conservative Republican Senators, and based on assurances he gave them, he was recommended for the Judiciary Committee's chairmanship in late 2004.

The Washington Post - 11/17/04

Key Republicans said yesterday they believe that Sen. Arlen Specter (R-Pa.) will be approved by GOP colleagues as chairman of the Judiciary Committee despite an uproar over his expressed doubts that a Supreme Court nominee who opposes abortion rights could be confirmed by the Senate.

The predictions followed an extraordinary, nearly two-week-long campaign by Specter to firm up his shaky grip on the chairmanship. It culminated yesterday in personal appeals by Specter to GOP leaders and committee colleagues to trust his assurances that he will do all within his power to win speedy approval for President Bush's judicial nominees. . . . .

Step 4: Arlen the Good Dog

Judiciary Committee Chairman Arlen Specter, R-Pa., closed five days of hearings Friday and announced his support for Alito's ascension to the high court.

Step 5: Arlen Gets Patted on the Head and is Thrown a Treat

Blogs for Bush:

Well, the worries are laid to rest - Senator Specter has handled himself and the two Supreme Court nominees deftly and with exceptional patience and grace. He's done a good job by the Republican Party, and we owe him thanks for a job well done.

Powerline:

This is also a good time to reconsider the Republican leadership's decision a year ago not to deny Arlen Specter the chairmanship of the Senate Judiciary Committee.
I don't think there's any question that this was the right move.

Specter has conducted himself well, and might have caused problems had he been on the outside. Unlike with the gang of 14 deal, Power Line had the right line on this one. We grudgingly agreed with the decision of the Senate leadership not to block Specter.

Kathryn Jean Lopez, National Review:

Specter did a fine job presiding over the hearings. That's what he's supposed to do. As far as the past goes-- a year ago this November--he issued a warning to the president and announced a litmus test--against too-conservative nomineees--the morning after the presidential election. It was our view (my words here, not "ours") that Senate Republicans should get a backbone--publicly acknowledge that conservative values won the election and they should actually take the lead in D.C.--and say club rules be damned. They chose not to. I think that was a mistake, albeit, clearly, not the end of the world. He's chairman. As chairman, he did his job with the two excellent candidates the White House put up who made it to the committee. Good for him.

I honestly wish my dogs were that easily trained. They could learn a lot from Arlen.

Learning lessons from Iraq

Regardless of what else one thinks of the Iranian problem, one fact seems to have clearly emerged: in dealing with the Iranian threat, we are in a drastically weaker position, on almost every level, as a result of our invasion and ongoing occupation of Iraq. By severely limiting our options and consuming our resources, our war against a decrepit and impotent Saddam has made us less able to deal with real threats to our security – exactly what the dreaded war opponents insisted in advance would be the case if we went to war in Iraq.

The question of what to do about Iraq was depicted – and continues to be depicted – as a choice between courage and cowardice, strength and weakness, Churchillian resolve or Chamberlain-like appeasement. With this premise firmly in place, those who cheered on the war (from a safe distance) are courageous, manly fighters in the glorious, resolute mold of Churchill. Those who opposed the war, even on the most pragmatic and even hawkish grounds, are caricatured as cowardly pacifists wanting to appease our enemies and make America weak.

This crude depiction was always pure fantasy, a cheap cartoon, but is unmistakably being hauled out again for Iran. Here is the revealingly self-named Captain Ed already dredging up the tired, deceitful "appeasement" smear for anyone who doesn’t immediately adopt the most bellicose posture possible towards Iran:

Now would be the time for Western nations to stand together in a show of unity to demand Iranian compliance or face the imposition of a tough sanctions regime. Unfortunately, the new government of Germany took the occasion of their first visit to the US to launch the new version of appeasement they want to use . . .

This indicates that the US will shortly face the same conundrum we did with Iraq -- a major security issue on which the UNSC refused to take any action to resolve, opting instead for the illusion of status quo.

Are we really going to again fall for the "appeasement" and cowardice trick from the Captain Eds of the world? Opposition to the war in Iraq had nothing to do with "appeasement" and everything to do with pragmatic predictions – which turned out to be indisputably accurate – that invading Iraq was not justified by the level of threat it posed and, more importantly, would be far more difficult than claimed, thus rendering us weaker as a nation to confront the real threats that we faced.

The number one Appeaser-FlowerChild-Coward on Iraq was Howard Dean, whose opposition to the war was used to depict him as some sort of unholy mix of Joan Baez and Alger Hiss. And yet listen to Dean’s argument, made a month before we invaded, as to why the war was ill-advised – about how an occupation of Iraq would drain away our resources and our credibility for dealing with greater threats to our country:

And I firmly believe that the President is focusing our diplomats, our military, our intelligence agencies, and even our people on the wrong war, at the wrong time, when our energy and our resources should be marshaled for the greatest threats we face. . . .

Now, I am not among those who say that America should never use its armed forces unilaterally. In some circumstances, we have no choice. In Iraq, I would be prepared to go ahead without further Security Council backing if it were clear the threat posed to us by Saddam Hussein was imminent, and could neither be contained nor deterred. However, that case has not been made, and I believe we should continue the hard work of diplomacy and inspection.

We must remember, though, that Iraq is not the greatest danger we face today. . . .

[L]ast month, [the President] again had the whole world listening as he gave his State of the Union Address. He devoted four paragraphs to the war against terror. He devoted sixteen to Iraq. He mentioned Saddam Hussein by name 18 times. He did not mention Osama bin Laden at all. The President sounds like a war President, but I must ask whether he is focused on the right war.

Saddam Hussein should not mistake a debate in this country about the best way to disarm him for any lack of resolve, here or elsewhere, that he must be disarmed. We will ensure that Saddam Hussein is disarmed of weapons of mass destruction. But we must be smart as well as tough.

Can anyone dispute that Dean was right about virtually every prediction he made, every warning that he issued about why invading Iraq was ill-advised and counter-productive? Any doubt about that ought to be resoundingly dispelled by this passage from his speech:

Secretary Powell's recent presentation at the UN showed the extent to which we have Iraq under an audio and visual microscope. Given that, I was impressed not by the vastness of evidence presented by the Secretary, but rather by its sketchiness. . .

We have been told over and over again what the risks will be if we do not go to war. We have been told little about what the risks will be if we do go to war. If we go to war, I certainly hope the Administration's assumptions are realized, and the conflict is swift, successful and clean. . . . It is possible, however, that events could go differently . . .

Compare this outright prescience from Dean to the war supporters’ declarations of cakewalks, predictions of glorious victory celebrations, promises that the war would pay for itself, and shrill fear-mongering about Saddam’s non-existent weapons. In light of what just happened in Iraq -- in light of how wrong the Captain Eds and other war-mongers were about essentially everything -- what rational ground exists for even listening to them on Iran, let alone being bullied again by this same "coward/appeasement" smear that is the only trick they know?

The vast majority of those who opposed the war in Iraq did so based on the pragmatic ground that the risks and costs of the war vastly outweighed the gains, and most importantly, that devoting our military and financial resources to a contained Saddam would weaken America in its ability to deal with other, more pressing threats -- beginning with Al Qaeda and extending to a nuclear-seeking North Korea and Iran.

Can there be any doubt that war opponents were exactly right that invasion of Iraq would make us far weaker in dealing with every other threat, including Iran? Even the war-mongers are acknowledging how limited our options are in dealing with Iran because we are presently occupying Iraq. Let us count the ways that our occupation of Iraq impedes our ability to deal with the Iranian threat:

First is the obvious fact that our military occupation of Iraq renders non-existent any credible threat of full-scale military action against Iran:

But behind the scenes there is no stomach for a fight. The US is the only country that could take military action. But with the US military already seriously overstretched in Iraq and with the mid-term congressional elections approaching there is no impetus in the White House or in Congress for another military adventure.

And the Iranians know this, of course (h/t The Moderate Voice):

"The Americans cannot do anything to us at the moment - they're a bunch of donkeys stuck in the mud of Iraq," said Tayebeh Biniaz, a chemistry tutor, wrapping her black chador tightly against the freezing winter wind.

And then there is the fact that the large numbers of soldiers we have in Iraq, along with our dependance on the good will of Iraqi Shiites, makes even targeted air strikes in Iran, which would result in scores of civilian deaths, virtually impossible -- so says no less of a war-lover than Victor Davis Hanson:

But 2006 is not 1981. We are in war with Islamic radicalism, at the moment largely near the Iranian border in Iraq and Afghanistan. The resulting furor over a "Zionist" strike on Shia Iran might galvanize Iraqi Shiites to break with us, rather than bring them relief that the Jewish state had eliminated a nearby nuclear threat and had humiliated an age-old rival nation and bitter former enemy. Thousands of Americans are in range of Iranian artillery and short-term missile salvoes, and, in theory, we could face in Iraq a conventional enemy at the front and a fifth column at the rear. . .

The Shiite allies in Iraq might go ballistic and start up a second front as in 2004. Muslim countries, the primary beneficiaries of a disarmed Iran, would still protest loudly that some of their territories, if only for purposes of intelligence and post-operative surveillance, were used in the strike. After Iraq, a hit on Iran would confirm to the Middle East Street a disturbing picture of American preemptory wars against Islamic nations.

Nor is a strategy of supporting a coup against the democratically elected Iranian President feasible, given that our only remaining justification for our invasion of Iraq is that we are crusading to bring democracy to that region. Whatever credibility and moral leadership we had and could use right about now is pretty much non-existent for reasons that need no elaboration. And all of this is independent of the way in which our invasion of Iraq – and all of the amusing insults directed at our European allies – has weakened those alliances, which we particularly need to accomplish anything constructive inside of Iran given that we have virtually no intelligence assets there and Europe does.

The real point is that we need to avoid, first and foremost, this inane dichotomy where one’s views for dealing with foreign threats become a test of one’s courage and manhood. Not every conflict is World War II, and not every foreign policy challenge is about proving that you are Churchill and not Chamberlain.

This is the destructive paradigm that pushed us into this plainly ill-advised occupation of Iraq. It assumes in advance that the more mindlessly belligerent one is in dealing with any threat, the better. It similarly holds that those who do not join in the war dances ought not be listened to at all because the mere fact that they counsel a more restrained or subtle course exposes them as cowards and appeasers. That warped mentality – which quite deliberately confuses war-mongering for courage and wisdom -- is what led us into the mess that we are in, but there is no evidence that any of the perpetrators have learned any lessons. Quite the contrary.

Imagine a world where Saddam is still in place, sputtering around impotently and in check by stringent inspections. There has been no WMD debacle in Iraq. Our decades-long alliances are intact. Our military has been engaged only in precision strikes against actual terrorists where they are found -- rather than occupying a country of 25 millions Muslims plagued by brewing sectarian civil war -- and is therefore primed, energized, and fresh. And U.S. credibility on issues like these is what it was before we invaded Iraq, rather than what it is now. The credible threat we could pose to Iran under those circumstances is in a different universe than the virtually non-existent threat we can pose now.

Can we at least avoid being subjected this time to the childish notion – already being peddled by the same people who were wrong about essentially everything as they pushed us into invading Iraq – that anyone who does not rush to embrace the most militaristic solution possible for Iran is an appeasing, irresponsible coward who should not be taken seriously? Just look at what that mindset has wrought.

Postings today

I will be posting today at Crooks and Liars and will provide links here as soon as my posts over there are up.

My first post -- concerning the ugly, disturbing hysteria provoked by the 5 Middle Eastern men who tried to purchase disposable cell phones at Walmart -- is here. Michelle Malkin courageously led the outrage over these would-be cell phone buyers. The Comments section to that post is long, raucous and some of the comments are reprehensible, but it's worth checking out the comment of The Ugly American, who is a blogger and sometimes-commentator on my blog.

In light of her book defending the internment of Japanese-Americans during World War II (which has a picture of 9/11 hijacker Mohammad Atta on the cover), has anyone ever asked Michelle Malkin whether she favors similar internment camps for Arab-Americans or Muslim Americans - not for forever, but just until our current war on terrorism is over in 30 years or so? It's hard to imagine how she could be opposed to that. Maybe they can ask her about this on Fox News the next time she guest hosts the morning program.

Only a Select Committee can investigate the NSA scandal

Whatever one’s views are on the NSA warrantless eavesdropping program, most people agree that the scandal raises some of the most profound issues our Government can face -- the limits of Executive power, to what extent a "wartime" President is constrained by law, how the Congress and judiciary check and balance Presidential power, and whether the President has the right to ignore Congressional law on national security grounds. All but the shrillest and most blindly loyal Bush apologists seem to agree that these are matters which, at the very least, require a through airing and investigation by Congress.

Even George Bush himself encouraged a Congressional investigation into this scandal, acknowledging on Tuesday that such an investigation would be "good for democracy." Republican Senator Arlen Specter has also said that he believes the Bush Administration’s eavesdropping program ought to be investigated, and has now announced his intentions to hold hearings on this scandal in early February before the Senate Judiciary Committee which he chairs.

This investigation, however, cannot be conducted by Specter's Judiciary Committee. Given its constraints, composition, and history, the Senate Judiciary Committee -- like all standing Committees in the Congress -- is clearly not designed, and is not able, to conduct a thorough and serious investigation of the pressing and potentially complex issues raised by this scandal. And beyond the limitations which every standing Committee has, the Alito hearings just demonstrated that the Judiciary Committee is especially slow-moving, dysfunctional and plagued by bickering and long-standing animosities.

The severe limitation of standing Congressional Committees generally has given rise to a bipartisan consensus that serious Congressional investigations must be conducted by a specially created Select Committee which is given the mandate, and the resources, to conduct a genuinely probing investigation. For that reason, every significant government scandal over the last thirty years involving allegations of abuse of power by the nation’s executive branch -- including Watergate, Iran-Contra and the widespread abuses of the intelligence community -- have been investigated by a focused Select Investigative Committee formed by Congress to specifically investigate that scandal. Such investigations are not conducted by standing committees. Indeed, House Republicans just created exactly this type of Select Committee to investigate the Federal Government’s response to Hurricane Katrina.

For our nation's most significant scandals involving allegations of abuses of executive power, a judgment has always been made that the issues presented are too serious and complex to be entrusted to a garden-variety standing Committee. These standing Committees are burdened by significant constraints on their time and resources and are distracted by numerous other competing demands on their attention, all of which combine to render impossible a thorough and and rigorous investigation.

By important contrast, Select Committees are deliberately structured to ensure that the members comprising the Committee are well-versed in the technical and legal issues presented and can therefore meaningfully question witnesses on these issues. That is why Congressional Rules provide for the creation of Select Committees -- because they can be structured and equipped with the resources from the beginning which are necessary for the specific investigation. And the fact that they have only one mandate -- to investigate the matter at hand -- ensures that the investigation remains substantive and focused.

Select Committes can and should also include lawyers with experience conducting these kinds of investigations, who can skillfully and tenaciously cross-examine witnesses and ensure that the truth is being revealed. Sam Dash and Arthur Liman respectively performed this vital role for the Watergate and Iran-Contra investigations, and if the investigation into the NSA scandal is to be meaningful, it needs a Select Committee with lawyers and other experts of this type to actively participate in the investigation.

Presumably, the investigation which so many people on both sides are urging be conducted into the NSA scandal should be a real and meaningful investigation, not a show trial dominated by partisan agendas, weighed down by entrenched animosities or rendered inadequate by a lack of expertise and skill. The Senate Judiciary Committee is entirely incapable of conducting an investigation of that sort. Only a Select Committee devoted to this investigation and bestowed with the necessary investigative tools and resources can ensure that Americans get a real investigation into this scandal.

UPDATE: Digby also thinks that it's imperative that we have a Select Committee investigate the NSA matter, and sets forth some very compelling reasons why the Judiciary Committee is woefully inadequate for this exceptionally important task.

UPDATE II: Jane Hamsher concurs, and offers some scenarios for what such a Committee would look like and why it would uniquely enable a real investigation.

A Nation of Jonah Goldbergs

(UPDATED: See update below)

There is a widespread, tacit assumption that no matter how apathetic and inattentive Americans become, there is still some line which they will not allow the Government to cross when it comes to exceeding or abusing the limits of government power. That assumption has taken a huge beating over the last four years, and is now in serious doubt.

Americans have sat by more or less passively by while this Administration detained American citizens and threw them into a military prison without charges being brought, without a trial, and without even allowing them access to a lawyer. Many are basically indifferent to revelations that the Bush Administration is eavesdropping on American citizens in secret and with no oversight of any kind. And worst of all, a sizable portion of the population is acquiescing to the fact that we have a President who was just discovered breaking the law, and rather than expressing shame or remorse once he was caught, has vowed to continue doing it based on the theory that he has the right to violate the law and that it's for our own good.

It is sometimes hard to put one’s finger on exactly what motivates such passive acceptance of these obvious government abuses, but Jonah Goldberg puked up a paragraph last night in the Corner which really captures everything that is rancid and decaying in our country and which casts an ugly though illuminating light on all of this.

In his little item, Jonah was talking about – and, of course, defending – the strip searching of the 10-year-old girl in the case where Judge Alito ruled that the search warrant issued to the Police authorized searching of the girl. Jonah then went further - much further -- and defended all strip-searching of all children, even without a warrant, whenever the Police thinks the kids’ parents are "drug dealers":

STRIP SEARCHES [Jonah Goldberg]

I understand the need for following the procedural niceties, but as a plain moral common sense issue, if you are a drug dealer and keep drugs on the premises with your child, you get zero-point-zero sympathy from me if your kids are searched, warrant or no. It may be wrong for the cops to do it. But you are not a victim for choosing a life where you can rationally expect to expose your kids to far greater risks than a search by a polite cop. The kid's a victim -- of bad parents.

If you can stomach it, let’s review this, because it really illustrates what is going on in our country. Constitutional safeguards guaranteed by the Bill of Rights are nothing more than what Jonah calls "procedural niceties." While it would be nice and all if the Constitution were adhered to, "plain moral common sense" means that it’s actually unnecessary, even undesirable, to be restricted by such things.

After all, we’re dealing here with people whom the State says it suspects, but has not yet proven, are "drug dealers." With those people (and, of course, with "suspected terrorists"), anything goes, even before a trial and without any due process of any kind. All of this can be done strictly on the Government's say-so, even if the Constitutional "niceties" which exist to prohibit such behavior haven’t been complied with. "It may be wrong," spits out Jonah, but we should do it anyway, because these people deserve it.

Isn’t it exactly this depraved thinking which lies at the heart of almost every current controversy we have? The whole point of the Bill of Rights – really, its principal function – is to prevent the Government from punishing those whom the Government claims (but has not yet proven in a court of law) are bad people deserving of punishment. That’s why there is a sequence mandated by the Constitution before rights can be abridged and punishment inflicted – first, charge someone with a crime, then give them the right to defend themselves along with other protections of due process, and then convict them. Only then are they considered criminals whose rights can be abridged.

What people like Jonah Goldberg stupidly refer to as these "procedural niceties" happen to be the only things which distinguish our country from every two-bit dictatorship around. If the Government has the power to simply decree American citizens to be criminals -- or terrorists -- without bothering to prove it in accordance with "procedural niceties," then the Government has the power of tyranny. It means the Government can act against whatever citizens it wants without limits, strictly on the Government’s say-so. That’s why we have a Constitution - to impose those limits and to prevent the Government from exercising exactly this power. That is so obvious. It’s basic civics. It’s something we learn in the sixth grade.

There is, of course, a great irony that self-styled "conservatives" like Jonah constantly rail against the evils of disregarding the mandates of the law in order to achieve some desirable outcome. That’s the whole "judicial activism" shtick -- that these judges are evil and undemocratic because they want to exceed the law in order to achieve the outcome they like. And yet their entire world-view has come to be based on the premise that transgressions of any and all types of laws – from FISA to anti-torture laws to Constitutional guarantees of due process – are perfectly justifiable as long as they are in pursuit of some desirable outcome, usually fighting the "terrorists," but other results they like can justify these lawless transgressions as well.

Thanks to the ceaseless fear-mongering of this Administration, we are becoming – excuse the grotesque imagery -- a Nation of Jonah Goldbergs, scared and lazy creatures who sit around believing that the Government is justified – even obligated – to act literally without constraint against the Bad People, the ones who are deemed to be Bad not pursuant to any "procedural niceties" but simply by the unchecked decree of the Government. These Jonah Goldbergs love to talk tough. But they are repulsively coddled and effete, whining about every perceived petty injustice which affects them but breezily endorsing the most limitless abuses of others, as long as the "others" seem sufficiently demonized and far enough away.

This brazen willingness to glibly endorse such government abuses is a natural by-product of a personality which loudly beats the drums of war and, in doing so, boasts about how tough that makes him, only to then insist that others should be subjected to the resulting risks because he’s too busy and too important playing computer games, watching Star Trek, and wiping drool off his daughter’s chin to bear that burden. It is a mindset that is as selfish and weak as it is indifferent to the fate of others.

Such individuals want more than anything for the Government to protect them, and in exchange, are willing and even eager to give the Government unlimited power to act against those citizens whom the Government says are bad and dangerous people. It is a mindset of great cowardice which is devoid of any principles other than fear and petty selfishness. And it really is the antithesis of everything which gave birth to the United States.

Thus, the Government can and should throw Jose Padilla in a military prison without a trial and without a lawyer because George Bush has decreed that he is bad. The Government can and should eavesdrop without warrants or oversight on American citizens because it assures us it's only doing it to those people who George Bush believes are bad. The Government can and should strip search children, even without the warrants required by the Constitution, because it’s only doing it to the people who are bad. And the Government can and should break whatever laws it wants to break in order to act against those people who George Bush says are bad.

It is truly nauseating to watch the basic principles of our country, which have preserved both liberty and stability with unprecedented brilliance over the last 200 years, be inexorably whittled away and treated like petty nuisances by the depraved Jonah Goldbergs among us. It is a mindset based on a truly toxic brew of glib self-absorption, sickly laziness and profound ignorance, and it is being easily manipulated by an Administration which is demanding -- and acquiring -- more and more power in exchange for coddling and protecting the little Jonah Goldbergs of the world.
________

UPDATE: Jonah has responded to this post with a breathless little item in the Corner. He tries, understandably, to back away from what he wrote by saying that he likes warrantless strip searches of children "as a moral and practical (as opposed to a legal matter"). Then, backing away further still, he says in a subsequent post that he was merely defending "police operating in good faith on a legal warrant" doing "something eminently reasonable."

In Jonah’s first post, he specifically referred to the strip searching of children, "warrants or no" -- not, as he now claims, "police operating in good faith on a legal warrant." And the whole point of Jonah’s post was to say that it’s no big deal if the Police strip search people and their children without warrants because, after all, they’re "drug dealers" and they deserve what they get.

But as Atrios points out, it’s third grade civics that a person is not guilty of any crime until they are proven to be guilty of it, which is why it’s only in a Police State that the Government has the power to search people (let alone their kids, let alone the power to eavesdrop on them or incarcerate them indefinitely) without judicial oversight and approval.

And Jonah’s dismissive claim that "this country wasn't a dictatorship before the Warren Court" is breathtakingly ignorant. It wasn’t the cartoonishly evil "Warren Court" which held that basic liberties prohibit the state from searching us without a warrant. The Founders provided for that in what they called "The Fourth Amendment." That’s what Jonah wants to wave away based on his perverted notions of "plain moral common sense."

What makes Jonah’s post conclusively reflective of not only his ideological corruption but also his severe character flaw is that Jonah would never be quite as breezy or casual about lawless strip searches if it was him or his daughter being subjected to them.

But Jonah is convinced that abuses of this sort will never happen to him and he therefore doesn’t care that they happen to others. To the contrary, he eagerly wants other people – the alleged, suspected "drug dealers" and "terrorists" and other Bad People – to be subjected to those abuses because he thinks it will protect him from bad things. That’s why I described his thinking as a mindset based on fear and petty selfishness. He is willing to give up and even denigrate the most basic liberties of our country because he thinks he doesn't need them and would be better off without them.

Bush courageously confronts tough questions

(UPDATE: I have another new post today at C&L regarding all of the pious civility sermons from Republicans to which we have been subjected over the last 24 hours ever since "Mrs. Alito" had her emotional breakdown.)

I have a new post up at C&L regarding the creepily reverent "questions" which George Bush was asked yesterday after his speech in Louisville, Kentucky. The President has been criticized for appearing only at events where he cannot be questioned, and the White House's response has been to manufacture "Q-and-A sessions" after Bush's speeches where one citizen after the next stands up and heaps worshipful praise on the "Commander-in-Chief." The "questions" are all along the lines of "Thank you for protecting us all. What can we do to help you?"

The one question Bush was asked yesterday about the NSA scandal basically demanded to know why the reporters who disclosed the illegal eavesdropping haven't been imprisoned yet. Bush laughed off the question with a coy joke. He is a powerful leader but also a magnanimous and kind leader.

GOP's fun and games with bigotry accusations

The reason Republicans are so very upset over the CAP questioning of Alito is because they have embraced a strong and principled refusal to introduce concepts of race and bigotry into the confirmation process for judges. For that reason, the media are taking quite seriously Republican objections to the Alito questioning because Republicans would never raise such issues as part of the debate over judicial nominees.

For instance, during the Democrats’ filibuster over Miguel Estrada’s nomination to the Court of Appeals, National Review published an article entitled "Democratic Racism," the first paragraph of which said this:

Given his record, why did these Democrats block Estrada's nomination? Put simply, because he is a Hispanic who broke from the party fold. Despite their inevitable protesting to the contrary, it is clear that Ted Kennedy's gang of 45 discriminated against Estrada because he is Hispanic . . . . Indeed, if Congress were an ordinary employer and a federal judgeship were treated as a job under federal antidiscrimination law, then Estrada would likely win on a claim of employment discrimination.

The accusation wasn’t confined to Republican magazines, as Jonathan Chait in the LA Times explained:

Republicans widely insinuated that Democratic opposition to the nomination of Miguel Estrada as a federal appellate judge was racist. Trent Lott — Trent Lott!, the man who was forced to step down as majority leader because he praised the segregationist candidacy of Strom Thurmond! — asserted, "They don't want Miguel Estrada because he's Hispanic."

This is how the dignified GOP Judiciary Committee member Charles Grassley put it:

"If we deny Mr. Estrada the position on the D.C. Circuit, it would be to shut the door on the American dream of Hispanic-Americans everywhere."

Republicans also explained how Democratic opposition to conservative nominee William Pryor was due to the fact that Pryor is Catholic and Democrats are, of course, anti-Catholic bigots:

When Democrats opposed the nomination of extremely conservative Alabama Atty. Gen. William Pryor, Republicans insisted it was because Pryor is Catholic. (Democrats said they didn't even know Pryor is Catholic until a Republican brought it up in hearings.) The Committee for Justice, a group linked to the White House, ran TV advertisements portraying a locked courthouse with the sign, "Catholics need not apply."

The same National Review article said the anti-Hispanic Democratic bigots were blocking Estrada’s nomination just "like they discriminate against another nominee, William Pryor, for his devout Catholicism."

And here is the dignified and distinguished Republican Senator from Alabama, Jeff Sessions, during the Judiciary Committee's hearings on William Pryor:

Senator JEFF SESSIONS (Republican, Alabama): The ranking member protests that he is not anti-Catholic and he's offended that anyone suggested that he is. Well, let me tell you, the doctrine that abortion is not justified for rape and incest is Catholic doctrine. It is a position of the pope and it's a position of the Catholic Church in unity. So are we saying that if you believe in that principle, you can't be a federal judge? Is that what we're saying? And are we not saying then good Catholics need not apply?

Democrats don’t just hate Hispanics and Catholics, but women as well, which is, of course, why they have opposed the nomination of some of them to the federal court:

When Democrats opposed Priscilla Owen, another very conservative nominee, Atty. Gen. John Ashcroft blustered, "Senate Democrats have indicated an unfortunate trend toward unfairness against qualified women nominated by this administration."

And then there were the accusations that Democrats opposed the nomination of Janice Rogers Brown because they were racists who wanted to keep black judges off of the court:

Virtually every time the Democrats objected to one of Bush's judicial nominees, the president's allies accused them of discrimination. Take, for instance, Janice Rogers Brown, the California Supreme Court justice who Bush nominated for a federal appeals court job. She speaks about government in the raving tones of a militia member and believes that the sort of government role in the economy most Americans have taken for granted since the New Deal is not just wrong but unconstitutional.Now, you would think that the Democratic opposition to Rogers as a federal judge is probably related to her desire to use the courts to impose her Dickensian vision upon an unwilling public. Instead, Republicans have insisted the Democrats must be motivated by bigotry.

Sometimes this argument has been subtle. ("I would hope that today the filibuster would not be used to deny an up-or-down vote on Janice Rogers Brown, because every parent deserves to dream for every child that they'll have a chance," argued one GOP senator.) Other times it has been more crude. ("Why are they afraid to put a black woman on the court?" asked one conservative black minister at an event with Senate Republican leader Bill Frist.)

So that's why Republicans are so offended by this questioning of Alito. They have declared the distasteful issues of race and bigotry off-limits in the confirmation process and they don't understand why Democrats won't do the same.

And unlike Alito’s wife, I’m sure that the wives of the Democrats on the Senate Judiciary Committee really love it when their husbands are attacked with these vicious, overt accusations of racism and bigotry. Maybe if one of them had cried in front of a camera over it we would have heard a little more about these "disgusting" and "shameful" accusations.

Being mean to Alito

Supporters of Sam Alito's nomination are solemnly pointing to the tears of Alito's wife as a proxy for expressing their profound distaste over the inappropriate and discourteous questioning of her husband, Sam, by the bullying Democrats on the Committee.

It is, of course, totally inappropriate, and just downright rude, to ask someone who wants to sit in the swing seat on the U.S. Supreme Court for the next 30 years (at least) about his touted memebership in a group which has views so extreme that the nominee himself expressed revulsion over them. And just because many of the views expressed by the group in question go to the heart of what the Supreme Court does is hardly a reason why he should be asked about his membership in that group.

And if the Democrats are going to be really rude and insist on asking about it, they should ask only once and accept whatever "answer" they are given. Asking follow-up questions about obvious holes or inconsistences in the answer -- let alone being so crass as to want to see documents on this group and Alito's membership in it -- is really beyond the pale of social decency.

It goes without saying that proper decorum and politeness should have prevented the Democrats from mentioning such unpleasantries. Where are their manners? Their crassness made Mrs. Alito cry. And that, of course, shows that Sam Alito would make an exceptional Supreme Court Justice and that it's time to stop with this nonsense and get on with his confirmation by acclamation so that we don't further upset his wife with impolite questions.

Every good dinner party host -- at least the ones who had a proper upbringing -- knows that you don't talk about unpleasant topics like race or politics with your guests. Because if you do, one of the guests is bound to get offended and the whole party will be ruined. Apparently, Mrs. Alito was so upset that she didn't even want dessert. Are the Democrats really going to sink so low as to subject her to further emotional turmoil by asking more questions of her husband?

UPDATE: In his inimitible style, The Heretik explores some additional oddities raised by this sorry, contrived drama.

NSA scandal polling & other matters

I have a new post up at Crooks & Liars regarding the latest Pew poll on the NSA scandal.

Also, the Republicans today found a very substantive argument in favor of Alito's confirmation, which they promptly planted on Drudge: the Democrats were so mean in their attacks that they made Alito's wife cry.

The Democrats on the Judiciary Committee are trying, sort of. But it is not the most talented roster around, to put it mildly. Specter has said that he plans to hold hearings on the NSA scandal in late January or early Feburary, but the Democrats should do whatever they can do in order to get those hearings away -- far away -- from the Judiciary Committee. It is not a good line-up for the Democrats, either in absolute terms or as compared to the Republicans on that Committee, who aren't exactly a Dream Team either, but they work much more in tandem and are much more aggressive.

Isn't it possible to set up some sort of newly comprised House-Senate Joint Investigative Committee similar to what we had for Iran-Contra, and then get an Arthur Liman-like special counsel to viciously grill every witness and demonstrate to the country how clear the law-breaking here is? As diligent as I'm sure Pat Leahy and Herb Kohl will be on these issues, they are not exactly skillful cross-examiners. They are far more likely to induce sleep than damaging admissions.

The NSA issue is way too serious to leave in their well-intentioned but pedestrian hands.

If Bork was too radical for the Court, why isn't Alito?

One of the difficulties with judicial confirmation hearings is that there is no real standard to use for determining which nominees should be confirmed and what constitutes a disqualifying attribute.

But one of the few things that is settled in this process is that whatever else it means to be too radical to be confirmed to the Supreme Court, Robert Bork was too radical, which is why he was overwhelmingly rejected by the Senate and by Americans. Bork has come to set the standard for non-confirmability – he is now the embodiment, the measure, in this country of a nominee whose views are so radical that he is disqualified from serving on the Court.

For that reason, as Alito opponents are starting to highlight, the most significant fact revealed during Alito’s confirmation hearings yesterday, by far, was the extreme praise which Alito heaped on Robert Bork when Alito was already the U.S. Attorney in New Jersey. As uncovered by The Washington Post, Alito, in 1988, did not just say that he supported Bork’s nomination, but also made clear that Bork was his ideal for what a Supreme Court Justice ought to be:

Aron: Do you think Robert Bork should have been confirmed?

Alito: I certainly thought he should have been confirmed. I think he was one of the most outstanding nominees of this century.

Aron: Why? How?

Alito: He is a man of unequaled intellectual ability, understanding of constitutional history, someone who had thought deeply throughout his entire life about constitutional issues and about the Supreme Court and the role that it ought to play in American society.

That is extraordinary praise for someone who was judged too radical to serve on the Supreme Court. And even more strikingly, when asked why he believed Bork was one of the greatest nominees, Alito cited exactly that which compelled the Senate and the country to reject Bork’s nomination: specifically, Bork’s "understanding of constitutional history" and his thoughts "about the Supreme Court and the role it ought to play in American society."

This leads to an obvious and overarching point: If Robert Bork was so far out of the mainstream in 1988 as to be unfit to serve on the Supreme Court, how can Sam Alito be in the mainstream in 2006? Since Alito has cited as his judicial hero someone whom the country overwhelmingly rejected as being too radical, shouldn’t Alito and his allies bear the heavy burden of demonstrating in what material respects Alito differs from Bork?

Alito does not claim that he’s changed his views in any way during his legal career. To the contrary, he’s been a model of consistency and immovability. Nobody suggests that he is anything but the same person as he was in 1988.

The views of Bork which led to his rejection are not obsolete relics of that time period. Quite the contrary; they are urgently relevant to the most critical issues of today. Here, for instance, is what the Senate Judiciary Committee said about Bork's extremist views concerning Executive power:

In extensive writings and congressional testimony over the course of his professional career, Judge Bork has expressed a broad, almost limitless, view of presidential power, particularly with respect to the conduct of foreign affairs, and a correspondingly narrow view of Congress's ability to restrict abuses of that power. The committee believes that, when viewed as a whole, Judge Bork's views on the scope of executive power place him well outside of the mainstream of legal thought, and run directly contrary to the limits on executive power intended by the Framers. . .

Judge Bork's suggestion that the President has the inherent power to ignore such limitations is profoundly troubling. Judge Bork has expressed an exceedingly narrow view of Congress's right to participate in or restrict intelligence activities, even when such activities are conducted in the United States against U.S. residents.

Reasonable people may differ about whether particular intelligence activities are appropriate or inappropriate. But under our constitutional system of checks and balances, Congress simply must have the power to oversee and ultimately to control the ability of the Executive Branch to conduct intelligence operations. In light of the Framers' great concern about the risks presented by concentrated power in the Executive Branch, the committee finds Judge Bork's rejection of congressional limitations on such power particularly disturbing.

The committee believes that Judge Bork's views on the scope of presidential authority are troubling, not merely because those views would impose unprecedented limitations on Congress's ability to curb abuses of presidential power, but because his views in this area are the antithesis of judicial restraint. In the area of executive power, Judge Bork shows little deference to duly enacted legislation and little regard for either the text of the Constitution itself or for the principle of checks and balances that resonates throughout the document.

All this talk about respect for precedent is ironic. One of the very few things that could be called "precedent" with regard to these judicial confirmation hearings is that whatever else "out-of-the-mainstream" means, Robert Bork and his judicial philosophy clearly qualify.

Given that, isn’t it almost self-evident that a person who holds Bork up as his judicial model and lavishly praises Bork’s "understanding of constitutional history" and role of the Court in our society should be presumptively viewed as being too radical as well? At the very least, Alito should bear the heavy burden of demonstrating that he is, in material respects, a different jurist than the Robert Bork who was resoundingly condemned by the country and the Senate as being far too radical to be confirmed.

Two final points:

(1) The fact that Alito claims that he followed Supreme Court precedent when he was a lower court judge says nothing about how radical and aggressive he will be in overturning precedents once he is on the Supreme Court. Nobody suggested that Bork had failed to follow Supreme Court precedents when he was an appellate judge.

The concern that led to Bork’s rejection was that once he was on the Supreme Court -- and, for the first time, had the power to overrule Supreme Court precedents -- he would then be guided by his radical judicial philosophy to overturn some of the most important and settled cases safeguarding Americans’ basic liberties. That is the same concern about Alito, and as was true for Bork, nothing in his history as a lower court judge can assuage that concern.

(2) Alito’s defenders and the media have made much out of Alito’s stated belief in stare decisis and his agreement to uphold the rule of law, as though those statements prove that Alito is in the judicial mainstream. Here are the first three paragraphs of Bork’s opening statement to the Judiciary Committee – the very first words he spoke at his hearing:

The judge's authority derives entirely from the fact that he is applying the law and not his personal values. That is why the American public accepts the decisions of its courts, accepts even decisions that nullify the laws a majority of the electorate or of their representatives voted for.

The judge, to deserve that trust and that authority, must be every bit as governed by law as is the Congress, the President, the state governors and legislatures, and the American people. No one, including a judge, can be above the law. Only in that way will justice be done and the freedom of Americans assured.

The past, however, includes not only the intentions of those who first made the law, it also includes those past judges who interpreted it and applied it in prior cases. That is why a judge must have great respect for precedence. It is one thing as a legal theorist to criticize the reasoning of a prior decision, even to criticize it severely, as I have done. It is another and more serious thing altogether for a judge to ignore or overturn a prior decision. That requires much careful thought.

What Bork said is almost verbatim what Alito said yesterday. That's because everyone can and does recite these cliches. Every judge, including the most radical such as Bork, believe that they are correctly applying the law and promise to have respect for precedent. But the Bork hearings already established the principle that the mere fact that a nominee comes in and pledges allegiance to stare decisis and the rule of law is meaningless. Reciting a belief in following the law is an obvious prerequisite just to get into the confirmation door, but it is not even close to being sufficient to prove that one should be confirmed to the Supreme Court.

What determines that is whether a nominee's judicial philosophy is sufficiently in the mainstream to allow confirmation. For Alito, that examination must start with his identification of Robert Bork as his judicial model.

"Nobody is above the law"

Kevin Drum responds to the post I wrote at C&L by pointing out that Alito paid lip service today to the concept that "nobody is above the law," and then says this:

Is Alito fudging furiously? Probably. But it still doesn't give liberals much of a purchase to lead a battle against his nomination. Subtle arguments about the nature of stare decisis and the precise extent of the president's Article II powers just aren't going to get very many people ready to take to the streets with pitchforks. So what's the battle cry?

The point that must be emphasized is that the Bush Administration believes that under the law, it has the right to ignore and violate Congressional statutes. Therefore, when Bush defenders assure us that they are "acting in accordance with the law," what they mean is that they are acting in accordance with their understanding that the law permits the President in times of "war" to violate Congressional statutes, i.e., to ignore the law.

I made this point a few days ago this way:

What we have in our Federal Government are not individual acts of law-breaking or isolated scandals of illegality, but instead, a culture and an ideology of lawlessness. It cannot be emphasized enough that since September 11, the Bush Administration has claimed the power to act without any constraints of law or checks from the Congress or the courts. Its view of its own power and governing philosophy is based upon, and perfectly encapsulated by, [a] single paragraph from the incomparably pernicious September 25, 2001 Memorandum, written by then-Deputy Assistant Attorney General John Yoo . . . .

That decisions about what actions our country takes "are for the President alone to make" – without any interference from the Congress, the courts, or anything else – is not a fringe academic theory. It is a definitely authoritarian and lawless ideology that has truly -- expressly -- become the governing philosophy of George Bush and his Administration. And it is not something the Administration has merely embraced in theory. It has been aggressively exercising these limitless powers.

When the President and the Vice President assure us that all of their actions are in "full accordance with the law," what they mean by "the law" is what is described in the Yoo Memorandum. For everything broadly relating to the undeclared and eternal "war" on terror -- not just on international battlefields but domestically as well -- decisions are "for the President alone to make." Pursuant to this theory, even when the President acts in violation of what we used to understand as "the law" (i.e., acts of Congress which are signed into law by the President), he is still acting "in accordance with the law," because the power to make such decisions rests exclusively with him.

That is a real crisis in our Government. And the critical point to make is that if you searched the federal judiciary high and low, you will not find a federal judge who has displayed greater deference to Executive power than Sam Alito has. From the time he was in the Reagan Justice Department through his 15 years on the federal bench, he has time and again demonstrated a fealty to Executive power at the expense of the other two branches -- exactly what would be most dangerous for our country today in light of the truly unlimited power expressly claimed by the Bush Administration.

When Alito says that "nobody is above the law," it really means nothing. To the Bush Administration, "the law" has come to mean that the President has the constitutional authority to violate Congressional statutes and that neither Congress nor the judiciary has power to stop it -- that decisions which even broadly relate to terrorism are, to use the formulation of the Yoo Memorandum, "for the President alone to make."

Alito is infinitely more likely to endorse this theory than virtually any other judge one can find. It is precisely why he was nominated. The President was obviously in search of a nominee who will not stand in the way of these theories of the all-powerful Executive. It's why he chose the painfully reverent Harriet Miers, and when he couldn't have her, he took the next best thing. Alito's answers today -- including his refusal to say that the President would be constitutionally prohibited from ordering torture even in the face of a Congressional statute prohibiting it -- strongly bolster that view.

Sam Alito may or may not look extreme. But what is unquestionably extreme is the situation in this country where the President of the United States gets caught breaking the law, and then vows that he will continue to do that because he has the right to do so, because the law allows him to do so. Sam Alito is highly likely to endorse that theory when he is on the Supreme Court, an institution which has as its primary constitutional function serving as a last check on such abuses. That is why it's so imperative to keep him off the court, and banal claims that "nobody is above the law" are just meaningless.

I think Americans understand these concepts intuitively. Most remember another President who claimed these law-breaking powers, and the last image of him is waving good bye in disgrace as he flew away from the White House. These are not esoteric or confusing concepts to present.

UPDATE: I just saw that Atrios made this precise point today.

The Alito hearings

My post at Crooks & Liars urging a filibuster of the Alito nomination is now posted here.

* * *
Midway through Sen. Leahy’s questioning (I will update this post as the hearings proceed), I have the following observations (now updated through Sen. Kennedy's Sen. Biden's questioning):

(1) Alito is being rather candid and forthcoming in his answers, and is not simply providing answers which he doesn’t believe in order to tell the Senators what they want to hear to heighten the chances of his confirmation.

He is also erring on the side of answering questions and, with some notable exceptions, refusing to answer questions only when they really do require him to opine on matters which he is highly likely to have to decide (such as whether the President has authority to violate FISA).

All of this means it is much easier than it normally is to understand his judicial perspective and what he is likely to do in the cases that matter.

(2) Nobody should bother with the pretense that we don’t know if he will vote to overturn Roe. He will. He did not try to hide it. He admitted that he believed in 1985 that he believed that Roe was wrongly decided and that the Constitution does not provide the right to abortion.

While he paid lip service to precepts of stare decisis and to the notion that he would have an open mind if he had to re-consider Roe, it was only lip service that he paid. Admirably perhaps, he was careful not to get anyone’s hopes up that he has changed his mind because when he votes to overturn Roe, he does not want anyone to have a reasonable accusation that he misled the Senate on that question. Any honest or reasonable person would have to acknowledge that short of a pledge to do so, it’s as close to certain as it can get that he will overturn Roe.

(3) He considers the question of whether the President has the right to violate FISA and similar domestic laws to be vexing and difficult. His principles are not offended by what the Administration did. At best, he considers it an interesting intellectual enterprise to sort through the separation of powers issues presented by this question.

He even refused to opine on whether the President could direct subordinates to engage in torture in the face of a Congressional statute prohibiting it.

(4) He did not answer Specter’s question about whether he agrees with Griswold (holding that the right to privacy prevents the Government from regulating contraception). He answered that he agreed with Specter’s characterization of that case, but not whether he agrees with the case itself. Presumably, that question will arise again.

(5) Like most federal judges, Alito is not accustomed to being challenged or accused, let alone attacked. He appears uncomfortable and angry when questioning gets a little aggressive. After many hours under the lights, I think the prospect exists that he can have some outbursts and loss of control.

(6) Trying to justify his membership in the Concerned Alumni group by ranting about his anger over banning the military from campus was lame and won't get him anywhere. He was going for some sort of Oliver North moment and it fell horribly flat.

* * * * *

(7) The Concerned Alumni group membership issue strikes me as a much more profitable path than the Vanguard recusal issue does. The "I don't recall" defense always raises suspicions in these cases, and associating onself with an odious group should have some cost to it if one can't later on offer some innocuous explanation.

(8) Alito's advocacy of the importance of Presidential signing statements -- based on his plainly anti-consitutional belief that the President's view of a law is of equal importance to the intent of the Congress in interpreting statutes (anti-constitutional because Article I vests all legislative power in the Congress and the Founders in the Federalist Papers emphasized the importance of that structure) -- is compelling, and disturbing, evidence of his excessive faith in Executive Power. This is underscored by various comments, including ones he recants, glorifying Executive Power.

This is the issue which Democrats need to emphasize most. It is the most substantive ground for opposition, and the most pressing.

* * * * *

(9) In response to Biden's (endless, meandering) questions about the standards for dismissing claims of racial discrimination, Alito said about a case in which he ruled that the discrimination claims should be dismissed (but two judges ruled it should not be): "Reasonable people can disagree on the facts." But the whole point of the law is that discrimination cases should be dismissed before the trial stage only where reasonable people cannot disagree -- meaning that there is no evidence that could enable a reasonable person to find that there was discrimination. Where reasonable people can disagree, the claims should be given to a jury to decide -- not summarily dismissed by the court.

Alito's statement that "reasonable people could disagree about the evidence" -- along with his subsequent arguments about why he, Alito, did not see the evidence as constituting proof of discrimination -- show how inappropriate this case was for dismissal. As Biden pointed out, this is precisely when a jury should decide the issue. But Alito clearly looks at most cases he has with a presumption in favor of institutional authority - the Government, prosecutors, employers, etc. It's just his ingrained personality and his judicial approach.

That is a horrible, horrible attribute in a judge, and one can sense, intuitively, that Alito has it in abundance.

Democrats cannot meekly accept Alito's confirmation

Beginning today, I will be periodically contributing posts to the very vibrant and popular Crooks & Liars site. My first post there sets forth my rationale as to why the Democrats must filibuster Sam Alito’s lifetime ascension to the swing seat on the U.S. Supreme Court.

Once the post is available (which will be when California, always lagging a few hours behind, starts its day), I will provide the link here. (It is now available and it's here.) The gist of it is this:

The Democrats are a party in urgent need of a good fight. And the Alito nomination presents the perfect opportunity for Democrats to demonstrate that they are willing to wage a real battle for the things they believe in. At least two core Democratic principles -- which are really American principles -- are at stake in these hearings, and are clearly threatened by the Alito nomination:

(1) whether we live in a country where the President has the right to declare himself to be above the law and can freely violate whatever laws he wants; and,

(2) whether the privacy rights which are the bedrock of individual liberty in this country will be decimated by the Supreme Court, thereby returning us to the days where women were prohibited by the state from having abortions and where the Federal Government is able to intervene in our lives and restrict our liberties in the
most personal and private spheres, from our most intimate relationships to the way we die.

If Democrats are unwilling to fight for these principles, what are they willing to fight for? And if Democrats crawl away from this battle, meekly convincing themselves before even engaging it that they are destined to lose and therefore shouldn’t even bother to try, how can Democrats possibly object when they are perceived as being weak, irresolute, and afraid of taking a stand for their beliefs?

I will also undoubtedly have some additional thoughts as the (relatively) exciting part of the Alito hearings takes place today, and will contemporaneously blog some of those observations here. For actual, full-on live blogging, see ReddHedd, who did a great job yesterday of making a rather boring day somewhat interesting.

The law is too annoying to obey

One of the still-unanswered mysteries of the NSA scandal is why the Bush Administration needed to bypass a FISA court which has long been notorious for its rubber-stamping and permissive ways. The decision to violate FISA is particularly mystifying in light of that statute's express allowance for a free 72-hour period of warrantless eavesdropping, which obviously negates the Administration’s initial, principal excuse that the need for immediate eavesdropping required it to violate this law.

Many Bush defenders responded to this problem by simply pretending that the 72-hour window did not exist, thus blithely (and dishonestly) arguing that FISA had to be violated because it does not allow for immediate eavesdropping. Unsurprisingly, the Bush cultists at Powerline relied on this blatant deceit for weeks, until a commentator here, Jukeboxgrad, posted compelling documentation of this ongoing dishonesty.

Jukeboxgrad's comment was then linked to by Crooks & Liars, which has a very energetic and substantial readership. That undoubtedly caused an avalanche of not-very-demure emails to Powerline demanding that it finally address itself to this rather glaring hole in its argument.

It didn’t take long for after that for Rocket John to put up a post explaining why the Administration was justified in violating the law notwithstanding the 72-hour exemption (the first time he even acknowledged its existence). To do so, John dredged up the Byron York article in National Review from a month ago where York argued that the Administration had to violate FISA when eavesdropping because the work required by FISA to obtain warrants is too bothersome to perform:

But there's more to the story than that. In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court.

The York article made clear that any claimed delays were not with the FISA court, which signs emergency warrants almost immediately, but with the Administration's own inability to comply with the requirements of the law. Mark Schmitt previously addressed, and obliterated, this excuse quite thoroughly.

It should really go without saying that if there were "widespread, bipartisan frustration" with FISA, it would have been quite easy to change the law, particularly since many FISA-related provisions had just been amended the prior year by the Patriot Act. And it seems that this "widespread, bipartisan frustration" has been forgotten entirely by the people who allegedly experienced it, since no prominent Representatives or Senators has said that FISA was inadequate or should be changed.

And as always, it can’t be pointed out enough that in a society which lives under the rule of law, it is absolutely intolerable for the President to secretly violate laws and then try to explain afterwards why the law that he broke wasn’t a very good law to begin with. That does not excuse illegal conduct at all. It is truly amazing how many times one needs to point that out.

But digging into the deceitful, pompous morass of Powerline is highly unpleasant work. I’ve done a lot of that of late, and I spent this morning working instead on a post about the Alito nomination. The industrious Jukeboxgrad, however, has written two additional superb Comments -- one in response to John’s post on the 72-hour rule, and another on John's updates to his post trying to explain why national security was harmed by the Times' disclosure that the Administration is eavesdropping without judicial oversight rather than with it.

In lieu of having to wade further into the Powerline justifications for law-breaking, I highly recommend these thorough and well-argued responses from Jukeboxgrad.

If this isn't lying, what is it?

Among Bush followers, Mark Steyn is one of the most revered columnists around. The minute he has a new column up, they all run around celebrating it as the latest work of towering genius.

Not coincidentally, he's also one of the most dishonest commentators around. Here is what he said yesterday in his Chicago Sun Times column about the NSA scandal:

It shouldn't be necessary to point out the obvious. But, unmoored from reality, wafting happily into fantasy land safe in the hermetically sealed Democrat-media bubble, Sen. Barbara Boxer and her colleagues are apparently considering impeaching the president for eavesdropping on al Qaida calls made to U.S. phone numbers. Surely, even Karl Rove can't get that lucky.

Everyone knows by now that the objections to Bush's NSA program have nothing to do with opposition to eavesdropping on Al Qaeda, but are instead based upon the fact that in ordering this eavesdropping, Bush is breaking the law, because the eavesdropping is conducted in secret and without the judicial oversight required by FISA. Surely Steyn knows this, too. But rather than address the argument, he simply lies and says that the objections are based on the belief that the U.S. shouldn't be eavesdropping on Al Qeada.

That's the great intellectual hero of the Bush followers. And the celebration dances over this column are already underway.

Here is Steyn, in the same column, using the same cheap tactic some more:

By the way, I'd love to see the witness list for that trial: Muhammad al-Jihad testifying that a week before he blows up a Bali nightclub he always makes a perfectly innocent call to his cousin in Milwaukee to ask how the kids are; Abu Musad al-Zarqawi testifying that he only called Howard Dean to issue a formal complaint about congressional Democrats stealing his rationalizations. Etc. . .

See, Howard Dean and Al Qaeda terrorists chat on the phone with one another because the Democrats share the same world-view as Al Qaeda. And that's why Democrats don't want any eavesdropping on their Al Qaeda friends. Piercing brilliance, that is.

And, if you can stand it, there's still more:

The practical effect of the Dems' approach is to extend the protections of the U.S. Constitution to any dodgy character anywhere on the planet who has a U.S. telephone number in his Rolodex. Indeed, given that perfectly ordinary cell phones can be used almost anywhere -- this week, I spoke to an American in London by dialing his Washington cell number -- if the Democrats have their way, all terrorist cells in Europe or Pakistan would have to do to put themselves beyond the reach of U.S. intelligence is get a New Jersey-based associate to place a bulk order for Verizon cell phones.

This isn't a hypothetical situation. Consider Iyman Faris, a naturalized American citizen also known as Mohammad Rauf and nailed by U.S. intelligence through the interception of foreign-U.S. communications. He was convicted in 2003 for doing the legwork on an al Qaida scheme to blow up the Brooklyn Bridge. . .

Do you want Iyman Faris in jail? Or do you think he should have the run of the planet until he's actually destroyed the bridge and killed hundreds of people? Say, the Golden Gate Bridge just as you're driving across after voting for Barbara Boxer and congratulating yourself on your moral superiority.

So that's where we stand four years after Sept. 11. The arthritic $44 billion intelligence bureaucracy is insisting it still needs another five to 10 years to have a clandestine service capable of infiltrating al Qaida operations in the field, but, while we're waiting, don't think of using that $44 billion to keep tabs on their phone calls, because the Dems will impeach you.

So the "Dems" -- presumably along with the growing number of Republicans who oppose Bush's lawless NSA program -- are against eavesdropping on Al Qaeda and want the terrorists to be able to blow up bridges without us knowing about it in advance. That's what this scandal is about. The Democrats are angry because they are opposed to eavesdropping on Al Qaeda terrorists. By contrast, George Bush believes in eavesdropping on the terrorists. That's the difference of opinion. Mark Steyn just spit out a whole newspaper column based on that premise.

And he's not alone among columnists whom Bush supporters revere. Here is Charles Krauthammer in The Washington Post expressing his "understanding" of what the NSA scandal is about:

Administration critics, political and media, charge that by ordering surveillance on communications of suspected al Qaeda agents in the United States, the president clearly violated the law. Some even suggest that Bush has thereby so trampled the Constitution that impeachment should now be considered.

Newspapers should absolutely include columns defending Bush's NSA eavesdropping program. But these columns are not that. This is just out-and-out lying. Nobody has been arguing that the Government should not eavesdrop on Al Qaeda, and yet these columns, with transparent falsity, claim that that is the position of Bush opponents on this issue.

When Bush supporters made comments like this in the first couple of days after the Times disclosed the NSA program - when they expressed bewilderment that anyone would be against eavesdropping on Al Qaeda - one could give them the benefit of the doubt and charitably assume that they were just confused and did not yet understand what the objections were. But we are well enough into the scandal now, and people like Mark Steyn and Charles Krauthammer know full well what the scandal is about. What else can it be called -- other than out-and-out lying -- for them to continue to characterize this scandal as resting on opposition to eavesdropping on Al Qaeda?

Using Christian conservatives for fun and profit

Jane Hamsher zeros right in on an exchange of monumental importance which took place on Meet the Press yesterday, involving accusations of wrongdoing exchanged between close Bush ally Sen. John Cornyn of Texas, and top Bush campaign official Ralph Reed. In addition to sweeping some of the most prominent pro-Bush faces into the center of the Abramoff corruption net, this episode powerfully illustrates how the Republican Party has long exploited, with total cynicism and dishonesty, the Christian conservatives who constitutes such a critical and loyal part of its base. The significance of this part of the Abramoff scandal could be huge if used properly. For that reason, it’s worthwhile to review the basic facts.

As part of the federal investigation into Jack Abramoff, e-mails from 2001 surfaced which were written to Abramoff by Ralph Reed, longtime Republican operative and the Bush ‘04 campaign’s Southeast Regional Director. Abramoff at the time was working on behalf of casinos owned by Louisiana Indian tribes, which were concerned that Texas tribes were beginning to open casinos which would compete with them and drain away their gamblers. They wanted government action taken against the Texas casinos -- in sum, they wanted the Texas Government to shut down their competition -- and so they hired Abramoff to use his unparalleled influence with Republicans, especially Texas Republicans, in order to engineer the State Government action that they wanted.

In thinking about how to induce the Texas government to act against the Texas casinos, Abramoff realized that he could cynically exploit Christian conservatives in Texas -- who strongly oppose gambling on religious and moral grounds -- and use that religious opposition to gambling in order to help the Louisiana casinos who were paying him. The Christian conservatives both in Texas and nationally would be the dupes. They would think that they were crusading against gambling by demanding that the Texas casinos be shut down. In reality, the entire spectacle was a grand deceit which was about nothing other than working to serve the interests of the Louisiana casinos by attacking their competitors.

To implement this scheme, Abramoff turned to Ralph Reed, who has long been the most politically influential Christian conservative in the country. Ever since he left Pat Robertson’s Christian Coalition in 1997, Reed has been in the business of getting paid to influence Christian conservatives to do whatever serves the political and financial interests of his clients. Reed was also a top advisor to the Bush campaign in 2000 and its Southeast Regional Director in 2004. Abramoff hired Reed and paid him to drum up religious opposition to the Texas casinos in order to protect the Louisiana casinos.

Reed went to work and, when he was done, the targeted Texas casinos ended up being shut down as a result of a lawsuit brought against them in the name of Texas by then-Attorney General Jon Cornyn. Thereafter, Reed claimed in one of his e-mails to Abramoff that all of that happened because Reed had arranged for a meeting between anti-gambling Christian activists and Cornyn where the activists would demand that Cornyn act against the Texas casinos. In that e-mail, Reed advised Abramoff that he had "choreographed" Cornyn’s response – i.e., that Reed had ensured that Cornyn would respond by taking action against the targeted Texas casinos:

In the Nov. 30, 2001, e-mail, Reed told Abramoff that 50 pastors led by Ed Young of Second Baptist Church in Houston would meet with Cornyn to urge him to shut down the Alabama-Coushatta tribe's casino near Livingston. He said Young would back up the request in writing.

We have also choreographed Cornyn's response. The AG will state that the law is clear, talk about how much he wants to avoid repetition of El Paso and pledge to take swift action to enforce the law," Reed wrote. "He will also personally hand Ed Young a letter that commits him to take action in Livingston."

As a result of these revelations, the moralizing Cornyn now has an obvious problem. Ralph Reed claims that Cornyn took action against the Texas casinos because Reed, acting on behalf of his casino clients, influenced him to do so. Reed says he "choreographed" Cornyn’s response. In order to save himself, Cornyn has now turned on Reed with an unrestrained viciousness. When asked yesterday by Tim Russert about this e-mail, Cornyn accused Reed -- who, in addition to being a top Bush campaign official also happens to be seeking the GOP nomination as Lt. Governor of Georgia -- of lying and "bilking" his clients:

MR. RUSSERT: Senator Cornyn, your name surfaced as receiving $1,000 from associates of Jack Abramoff. And Ralph Reed, an associate of Mr. Abramoff, was quoted as saying that he helped "choreograph" a response for you when you were attorney general towards a tribal problem. Will you give that money back?

SEN. CORNYN: Tim, it was a legal contribution. I don’t plan on giving it back, which is—you know, to listen to Chuck and to try to have it both ways and say this is a partisan issue—you know, Jack Abramoff and the people, his clients, made bipartisan contributions and through—as long as they’re legal and appropriately reported, I don’t see any reason to give them back. On the Reed e-mail—and this is not Harry Reid, but...

SEN. SCHUMER: R-E-E-D of the—yeah.

MR. RUSSERT: Ralph Reed, formerly of the Christian Coalition.

SEN. CORNYN: Exactly. Those e-mails came out three years after I, as attorney general of Texas, filed an injunction to enforce Texas law against casino gambling. We prevailed because the law was in our favor, and then after the fact, apparently, there were these e-mails I had no knowledge of where Reed and Abramoff were somehow claiming credit and then bilking their Indian clients for millions of dollars, apparently. And I certainly disapprove of that, did not know anything about it.

It is truly amazing to see top Bush Republicans, who have marched in almost absolute lock-stop with one another for five years, turn on each other this way. And these are not fringe Republicans.

Ralph Reed built the Christian Coalition and solidified the attachment of Christian conservatives to the Republican Party -- an attachment which, as Digby amply documented just yesterday, has been and continues to be a critically important cog in the Republican electoral machine. As Reed himself always makes clear, and Karl Rove agrees, these ties are a huge part of what put George Bush in office and gave Congress to the Republicans. Reed has long been at the center of national Republican politics along with his creator and mentor, Pat Robertson.

And Cornyn is no less influential. No Senator is a more loyal ally to George Bush. He was hand-picked by Karl Rove for his Senate seat and his election was a top priority for the White House:

On the Republican side of the Texas Senate race, Texas State Attorney General John Cornyn is the conservative, well-funded Bush ally with close ties to the business community. . . . .

The Cornyn campaign can also count on as much help from the White House as it will need, noted NACS' Director of Political Affairs Dan Mulvaney. Both President Bush and Vice President Cheney have already ventured to Texas for Cornyn fundraisers. "Having a large war chest is a crucial in a state with 19 media markets," said Mulvaney. "Cornyn is likely to maintain a substantial financial edge, thanks to this White House involvement."

Cornyn is blindly loyal to George Bush, and he obviously recognizes the danger he is in from this scandal. Sean-Paul Kelly, who blogs from Southwest Texas and guest hosts a radio show there, has been aggressively documenting the connection of the Abramoff story to Cornyn for some time. His excellent coverage of Cornyn’s involvement in this scandal has prompted rather thugish threats from Cornyn’s office against Kelly's radio station. Bush followers understand quite well the threat this story poses, which is why Cornyn put a knife in Reed’s back on national television yesterday.

I heard Charles Krauthammer on Brit Hume’s show yesterday snidely dismissing the importance of the Abramoff scandal generally, saying that he would be "shocked" if anyone even remembered this whole silly thing come November. Bill Kristol, Hume, and the always-compliant Mara Liasson and Juan Williams basically chortled in agreement, depicting this as nothing more than one bad guy, Abramoff, taking advantage of a corrupt though perfectly legal political culture which entails this sort of clever game-playing equally by both parties. And all of the insider-sophisticates know it and accept it. According to Krauthammer, objecting to this filthy system is nothing more than tiresome populist "grandstanding."

But that pretense of indifference to this scandal is laughable. The Abramoff scandal generally implicates almost every significant Republican political operative, along with many of the party’s highest political officials. And Cornyn’s statement on Meet the Press by itself is a huge story. He just accused the Religious Right’s most important figure, who was also a top Bush campaign official, of lying and defrauding his clients. Other than to hardened Beltway tools like Krauthammer – who think that their acceptance of deeply entrenched corruption is a sign of their elevated sophistication -- how can that not be a huge story?

More importantly, this entire Abramoff-Reed-Cornyn scheme demonstrates the completely cynical exploitation of Christian conservatives by a Republican political machine which pretends to be devoted to their agenda, but which has long just used them as ATM machines and ballot box stuffers.

Isn’t it time that Bush opponents at least make the effort to explain to citizens who identify as Christians that the Republican Party is not really working in their interests at all? Long manipulated by the likes of Ralph Reed -- who has made an enormous amount of money selling religious voters to the highest bidder -- these religious conservatives now ignore the issues which truly affect their lives because they have become convinced that the Bush movement is devoted to their core religious issues. But it isn’t. It exploits their religious agenda for its own sake while offering them only symbolic gestures and, as this Reed-Cornyn episode shows, it often works directly and secretly against their agenda.

Shaking loose the unwarranted devotion of religious conservatives to a Bush movement that couldn’t care less about their agenda is long past due. Howard Dean tried to make this point during the primary campaign - that religious conservatives are being manipulated into supporting a party that works against their interests - but the media and Dean’s opponents turned that effort into some stupid sideshow about Dean's supposedly offensive reference to "pick-up trucks" and Confederate flags and the issue faded away in a cloud of idiotic rancor. Subsequent efforts by Dean were met with ridicule, including from those in his own party. But the corrupt, secret work of Ralph Reed, John Cornyn and others to serve their Indian gaming masters while pretending to oppose gambling on moral grounds is the ideal tool to re-engage in that project.

So, too, incidentally, is the NSA scandal and the unlimited federal powers claimed by Bush. Religious conservatives have long been distrustful of federal power, which is what accounts for the discomfort which so many of them have with Bush’s lawless eavesdropping. It is what accounts for the notable opposition of Kansas Sen. Sam Brownback, who is a True Believer and whose opposition to Bush on this issue should come as no surprise. His political positions are almost always driven by, from beginning to end, his religious agenda. If he takes a strong position, it is due to his religious-based viewpoints.

That is what explains his rather aggressive stance against Bush’s warrantless eavesdropping program specifically and the powers of lawlessness claimed by the Administration generally. There has always been a strong "leave-me-alone" current running through religious conservatives in this country because they have always viewed a powerful Federal Government as a potential source of interference with their religious practices.

Much of the not insubstantial populist Christian anger over the Ruby Ridge and David Koresh attacks originated with this viewpoint, and while it has been precariously managed under Bush, it has not gone away. Emphasizing how much this Administration has expanded the powers of federal government - including its law enforcement domestic powers – is an independently potent tool for sowing real distrust and doubt among religious conservatives in George Bush’s Republican Party.

For some reason, Bush opponents cede so much to the Bush movement even though there is no reason to do so. There are lots of extremely compelling reasons why groups such as true Goldwater libertarian/conservatives and even religious conservatives should be alienated by George Bush and his followers. But these alliances are almost never challenged and Bush’s strategists are thus given free reign to solidify those allegiances at no cost.

What is ceded more than just these alliances are the basic rhetorical premises that Republicans have used to manipulate their supporters. When Republicans depict themselves as the party of resolute strength, Democrats try to say that they are kind of strong, too. When Republicans depict themselves as the party of religion and morality, Democrats try to say that they are sort of moral and religious, too. But there is no need to cede that ground to Republicans, especially Bush Republicans, because they are so plainly neither strong nor moral, at all. And nothing illustrates that better than the blatant manipulation of religious conservatives for profit and gain.

It is well past time to start articulating not just to liberals or liberal-leaners, but to those who have been supporting Bush as well, that the actions of his Administration and his followers do not advance their interests. They are not devoted to the ideals of small government conservatives or to religious conservatives. Quite the contrary. This Abramoff scandal, as well as the lawless expansion of the powers of the Federal Government, together offer the perfect opportunity for making this long overdue case.

Several matters

There are a couple of posts I wanted to finish today but won’t be able to until tomorrow. Until then, here a few interesting things of note:

(1) The AP poll reporting that 56% of Americans already believe that the Bush Administration should be required to obtain warrants before eavesdropping on communications, even where the communications involve "suspected terrorists," is extremely significant. The underlying polling data is here (pdf).

Some Bush defenders have objected to the formulation of the poll question on the ground that it specifies that it is "the Bush Administration" exercising these warrantless eavesdropping powers, and is therefore skewed to generate more opposition to the eavesdropping. They believe the poll should simply ask whether the U.S. Government generically should have such powers. Leaving aside the irony that Bush defenders object to the inclusion of the words "Bush Administration" because it is likely to inflame opposition (rather than support) for whatever it is that is being asked about, the inclusion of that term actually makes the poll much more meaningful.

After all, it is the Bush Administration - not some generic "executive" - which is asking Americans to entrust to it secret, illegal eavesdropping powers to be conducted without judicial oversight. While Americans might be willing to entrust some other Administration run by other people with such powers, this poll demonstrates that a majority is unwilling to trust this Administration with those powers.

Bush defenders may be right that there would be different results if the question were posed with some faceless President (or some other President) in mind rather than with Bush, but that undermines their position rather significantly, since the question which is actually at hand is whether Americans trust this particular Administration with secret, lawless eavesdropping powers. The poll shows that Americans do not.

Bush followers also exert the standard objections to the partisan breakdown of respondents (every poll they dislike is inherently flawed and biased), but there are three things worthy of note about this poll regardless of whether its results are perfect:

(a) A majority of Americans has already figured out -- on their own and with almost no prominent political officials strongly making the case -- that all of the scary talk about terrorists and all of the inspiring cowboy imagery of George Bush’s cocksure rule-breaking in order to save us does not justify or render tolerable Bush's violations of the law. The mere invocation of terrorism no longer scares most Americans into blindly endorsing anything that George Bush does, and certainly does not impel them to tolerate illegal conduct by the President. Thus:

(b) This substantial anti-Bush sentiment on the NSA scandal should instill Bush opponents -- Democrats and principled conservatives alike -- with the resolve to start aggressively attacking the Administration on these law-breaking issues. It is safe for Democrats to clearly articulate exactly what this Administration is claiming with regard to its powers of law-breaking, and to speak clearly and declaratively about the profound danger posed by George Bush’s belief that he has the right to break the law – not just eavesdropping laws, but laws generally. That case has not really been made, and yet 56% of Americans already object to warrantless eavesdropping even if it involves eavesdropping on "suspected terrorists."

Imagine what that number could be if Democrats and other political officials were speaking clearly, rather than in half-hearted and cautious legalisms, about George Bush’s explicitly claimed right to violate the law.

(c) The substantial opposition to warrantless eavesdropping exists even though there has been no real evidence yet that the Administration abused its eavesdropping power. Evidence of abuse, if it exists, would obviously catapult this issue into a whole new realm, but it is not necessary to have such evidence, because it is a profound crisis and a danger unto itself to have a President who breaks the law and then, when caught, says that he has the right to do so and vows to our faces that he will continue to break the law.

(2) The real issue here is not whether the Administration can eavesdrop without warrants (which is what the poll asked), but whether the Administration has the right to break the law if it thinks that doing so will help in the fight against terrorism. That is really the issue here, and to make clear that this is so, Bush opponents should simply start explaining to the public exactly what Bush followers are saying in defense of the President - because what they are arguing is exactly that: that Bush has the right to violate the law.

Along those lines, this week’s Weekly Standard is publishing an extremely important essay by long-time social conservative hero Harvey Mansfield, a Professor of Government at Harvard. The article is entitled "The President and the Law" and sets forth with perfect clarity the view of Bush defenders -- as previously expressed by, among others, Dick Cheney – that as a result of the "war" we are fighting against terrorists, the President really is above the law; he is the law; and the Constitution gives him the right to ignore both Congress and the courts. Bush opponents must make clear to Americans that this is the theory on which the Bush Administration is based.

(Independently, Americans also ought to know, and the Senate needs to find out, whether and to what extent Sam Alito agrees with these views of Executive power and the rule of law. Maybe Joe Biden could give Alito a homework assignment of reading Mansfield's article and be prepared to discuss it at the hearings).

Does Mansfield’s description of the Constitution and the powers of the President sound anything like the pre-Bush United States?

Enemies, however, not merely violate but oppose the law. They oppose our law and want to replace it with theirs. To counter enemies, a republic must have and use force adequate to a greater threat than comes from criminals, who may be quite patriotic if not public-spirited, and have nothing against the law when applied to others besides themselves. But enemies, being extra-legal, need to be faced with extra-legal force. . . .

To confirm the extra-legal character of the presidency, the Constitution has him take an oath not to execute the laws but to execute the office of president, which is larger. . .

Yet the rule of law is not enough to run a government. Any set of standing rules is liable to encounter an emergency requiring an exception from the rule or an improvised response when no rule exists. In Machiavelli's terms, ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion. . . .

In rejecting monarchy because it was unsafe, republicans had forgotten that it might also be effective. . . .

With one person in charge we can have both secrecy and responsibility. Here we have the reason that American society, in imitation of American government, makes so much use of one-man rule. . . .

Much present-day thinking puts civil liberties and the rule of law to the fore and forgets to consider emergencies when liberties are dangerous and law does not apply.

So, to recap: The President is "larger" than the law. The "rule of law is not enough to run a Government." We must remember that a monarchy is "effective" and therefore, in times of "war" (like now), we must embrace "one-man rule." In sum, in emergencies like the one we have now and will have for the indefinite future, the "law does not apply."

That George Bush has the right to break the law is not a fringe crackpot theory. It lies at the heart of the Bush Administration’s conduct and is the only theory which can coherently explain its actions. This view is being expressly and unabashedly advocated in the most influential pro-Bush magazine. It is endorsed by public intellectuals like Mansfield, by highly influential federal judges like Richard Posner, and by former Attorney Generals like William Barr. Dick Cheney has made no bones about the fact that this is the Administration’s view, and of course, the Yoo Memorandum (with its quite explicit warning that neither Congress nor the judiciary "can place any limits on the President's determinations" relating to terrorism) long ago made clear that this "one-man rule" theory of Executive power lies at the heart of the Bush Administration.

Every Democrat and every Bush opponent should be pointing this out at every possible opportunity. George Bush violated eavesdropping laws and says he will continue because he claims the right to break the law. Debates over specific terrorism-related "laws" or eavesdropping powers or anything else don’t matter because we have an Administration which claims that George Bush -- regardless of the outcomes of those debates -- has the power to violate those laws when he sees fit. Anyone who doubts that this is so should just read Mansfield’s article, or listen to Dick Cheney.

(3) It is impossible to say anything about Ariel Sharon without making large numbers of people angry with you, but this post from the Heretik conveys my view of what is most notable about Sharon now that his public life has ended. Regardless of what he was or did, the ability to change one’s central convictions or at least to accept that one’s long-entrenched approach needs to be transformed is an extremely virtuous, and extremely rare, character trait. The most seemingly intractable conflicts can be resolved only by such transformations.

Sharing our "secrets" with Osama

(post is updated below)

One of the most revealing aspects of the NSA scandal has been the way in which Bush followers have been running around shrieking that national security has been damaged and treason has been committed by the New York Times. All of that is based upon the Times' disclosure that Bush ordered the NSA to eavesdrop without judicial oversight (rather than with it). Now that the initial screaming and demands for hangings are dying down a little, his followers are confronted with the fact that this accusation makes no sense whatsoever, since whether we eavesdrop with judicial oversight or without it can’t possibly be of any use to terrorists.

What has become unavoidably apparent is that their rage over this disclosure stems from the fact that it has embarrassed George Bush and harmed his political interests, not that it has harmed the national interests of the United States. But to them, George Bush is America, and whatever he does is, by definition, the national security of the U.S. Thus, to undermine or impede George Bush -- even to point out that he broke the law -- is, in their minds, to impede the United States and therefore to commit treason.

In any event, John at Powerline thinks -- after he and his comrades spent three weeks screaming "treason" at everyone -- that he finally found an explanation as to how the Times’ story "harms national security." But anyone with an open mind who reads John’s explanation can see that John literally has no idea what FISA is, or what this entire controversy is about. I don’t mean that he’s wrong in his analysis or that he’s interpreting facts incorrectly. I mean that he’s just ignorant of basic, undisputed facts regarding the matter about which he’s opining so pedantically. But, to his credit, John is at least the first person I have seen try to offer an explanation for the "treason" accusation, so it's worth exploring.

John begins his argument, fittingly enough, by citing the Myth of Osama’s Cell Phone:

First, there is apparently no dispute about the fact that when it was published in the American press [in 1998] that we were listening in on Osama bin Laden's cell phone conversations, he either stopped using cell phones or switched to a different technology.

Yes, John is right: there is "no dispute" at all about this cell phone story -- except for the lengthy and detailed article in The Washington Post two weeks ago demonstrating that the whole tale is an urban myth. It’s a cartoon story about gadgets and villains that someone fed to George Bush, who ate it up and then shared it with us at his Press Conference, even though it's plainly untrue.

But even if it were true, anyone who thinks about it for just a few seconds would realize that it negates, rather than bolsters, the accusation that the Times "damaged national security" with its story. According to the myth, the Osama Cell Phone caper happened in 1998. That would mean that it dawned on Al Qaeda at least seven years ago that we try to listen in on their calls and that we have the technology to do it. That, in turn, means that the Times story didn’t tell them anything that they, along with the rest of the world, didn’t already know.

John moves on to next argue that the terrorists didn’t know about this thing called "FISA" until the Times story treasonously spilled the beans and told them about it. Honestly, that's his argument:

These emailers [asking John how the Times story could have harmed national security] assume that al Qaeda members know about FISA. I think that is extremely unlikely. Very few Americans knew anything about FISA before the current controversy arose.

So the diabolical, unprecedentedly dangerous terrorists who pose an existential threat to the U.S. that is equal to or greater than that posed by the Soviet Union are, in John’s mind, so uninformed, unsophisticated and stupid that they never heard of or knew about the 30-year old public law that defines the powers of the U.S. Government to engage in surveillance for foreign intelligence purposes. They never heard of FISA or knew anything about it until the Times published its story.

And now the cat is out of the bag – now, thanks to the Times, they know that we have this law called "FISA" and have become aware that we do this thing called "eavesdropping" and now they will be able to thwart us. Is that supposed to be satire?

Recognizing that this may not be the most persuasive argument ever, John has a back up just in case the terrorists had heard of FISA. He argues that if the terrorists had heard of FISA, they were intimately familiar with how the FISA court worked. Thus, prior to the Times story, terrorists would have thought that it took a long time to obtain a warrant in order to listen in on their conversations when, in reality, as they now know (thanks to the Times), we were violating FISA and therefore able to eavesdrop immediately:

If the terrorists did know about FISA, they probably also knew that it would take days, weeks or months to obtain a FISA order. Thus, while they probably would be smart enough to realize that the cell phones they had used to try to contact their confederate were compromised and should be discarded, they would not realize that we had the ability to begin intercepting messages coming in to the captured cell phone almost immediately, and then begin intercepting messages to and from the phones that were calling the terrorist, also almost immediately.

This paragraph reveals an astounding ignorance. Anyone who has paid even the most minimal attention to this matter – let alone someone who holds themselves out as some sort of legal scholar qualified to accuse people of treason – has known for quite some time that FISA expressly allows immediate eavesdropping without a warrant under Section 1805. Thus, unless a terrorist were as confused and uninformed about the law as John still is, a terrorist who thought we were complying FISA (rather than violating it) would have already known that we could eavesdrop immediately and without a warrant. That's because FISA says in clear and unambiguous language that we can. The Times story reporting on Bush's illegal program didn't reveal that we could eavesdrop immediately because the Government has that power even if it complies with FISA.

Shouldn’t this be extremely embarrassing to John? FISA is not really that long of a law, and it’s pretty straightforward. It’s been three weeks since this scandal began. He obviously has no idea what FISA even says. John could have made the argument he just made only if he was completely unaware of the fact that FISA itself allows immediate eavesdropping – a fact which not only is readily apparent from the law, but also has been mentioned by pretty much everyone who has discussed this matter since it first arose.

This really is the level of argument which is coming from Bush followers on this issue. It is wildly incoherent and uninformed. That’s because they begin with the premise that anyone who says anything that is harmful to George Bush, particularly with regard to his terrorism policies, is a subversive and a traitor, and only thereafter, in each individual case, do they go out in search of rationale to justify the accusation. The fact that none exists doesn’t stop them, or even give them pause, in insisting that those who criticize or impede George Bush should be imprisoned.

And as I've pointed out before, while the Times story told the terrorists nothing about our intelligence-gathering methods, George Bush -- in order to get re-elected and then to argue for renewal of the Patriot Act -- has revealed ample information, in detail, about all the ways we are successfully monitoring and tracking their communications and their movements.

And it's always worth noting that all of this is independent of this question: if George Bush were violating criminal law in ordering this FISA-bypass program, should the Times have informed the public about it? Does George Bush have the right to violate the law if he decides doing so strengthens U.S. national security? Those are questions Bush followers never address, but does anyone need to hear them address them in order to know their answers?

UPDATE: In an update to his post, John posts an e-mail from a reader who sets forth a completely different explanation: that all of these disclosures about our "encryption" and "switching" technologies signal to the terrorists how to avoid detection. It's no wonder that John's e-mailer is a fan of Powerline since he has simply invented facts to have an argument.

The Times story revealed nothing about encryption or switching, only that eavesdropping was being conducted without the judicial oversight required by FISA. Moreover, as the e-mailer himself acknowledges, both encryption and switching technologies have been publicly discussed for years. They are hardly new. Multiple reports have indicated that Al Qaeda long ago realized that they cannot safely rely on telecommunications and rely on other methods, such as couriers, for transmission of their messages. And George Bush's speeches, as noted above, have revealed far more details about our surveillance programs.

Finally, and it is this point which is always dispositive, if new technologies were created which made FISA oversight infeasible, the solution in a society which lives under the rule of law is to amend FISA, not to secretly and repeatedly violate it.

UPDATE II: In Comments, Jukeboxgrad makes a very compelling, perhaps irrefutable, demonstration that Powerline's failure ever to acknowledge FISA's 72-hour warrantless window is deliberate and dishonest. They have repeatedly argued that Bush was justified in by-passing FISA on the ground that there is sometimes a need to eavesdrop immediately (i.e., without having time to obtain a FISA warrant), but they have never once disclosed to their readers that FISA expressly permits eavesdropping for 72 hours without a warrant. That sort of argument is not just misleading, but outright deceitful.

Jukeboxgrad makes another excellent observation in a different Comment as well.

Finally, in light of the intellectually bankrupt pro-Bush argument by Powerline featured here, it's only fair that I acknowledge this very well-crafted argument by Doctor Biobrain made in defense of Bush.