Latest Iraqi war casualty -- conservative belief in "personal responsibility"

To the list of conservative principles which are being tossed aside like yesterday’s trash in order to defend George Bush, let us add the ostensible virtue of “personal responsibility.” Remember those lectures we used to have to endure about how Americans are so coddled and selfish and lazy and don’t take “personal responsibility" for their actions and their failures? We were treated to stirring moral tributes like this:

Conservatives believe that traditional morality serves as the best protection against the ills that plague society. The government should encourage policies that promote morality and discourage immorality. Personal freedom demands personal responsibility, and liberty is no excuse for irresponsible behavior.

Sadly, self-proclaimed conservatives seem to have as little use these days for the virtue of "personal responsibility" as they do for their other discarded beliefs of the past -- such as distrust of the federal government, or their steadfast and loudly touted belief in the rule of law.

As pretty much everyone (including the Father of Modern Conservatism himself) now recognizes, the pet neoconservative project of invading and bombing Iraq in order to transform it into a pro-U.S. beacon of peace, stability and freedom is a wholesale disaster, an abject failure on virtually every level. The cost of our little adventure is incalculable and will be with us for a generation, at least – the destruction of American credibility; the indescribable weakening of our military which leaves us vulnerable to real threats and enemies; and the staggering cost in both money and lives. And in return for these incomparable harms, we have installed pro-Iranian Shiite theocrats in one of the Middle East’s most strategically important countries and have brought that region to the brink of full-scale sectarian war. A more destructive and complete disaster is hard to imagine.

For the last couple of years, the tactic of war proponents was to simply deny reality and pretend that the disaster in Iraq was just fiction, nothing more than the invention of an American-hating media. That little tactic isn’t working any longer. All but the hardest-core Bush loyalists have abandoned this war long ago. And anyone with eyes can see that our Iraqi project is a disaster – at best, it will achieve nothing in exchange for the incalculable costs our country has endured and will have to pay for a long time to come. At worst, it will ensure the opposite of our goals.

Finally forced to accept the reality of their failure, war proponents have only two choices left: (a) admit their error and accept personal responsibility for their horrendous lack of judgment and foresight, or (b) blame others for their failure while insisting, in the face of a tidal wave of evidence, that they were right all along. Guess which option these Shining Beacons of Personal Responsibility are embracing?

For the entire war, the Republicans controlled the White House and both houses of Congress. On virtually every matter relating to the war, the Congress deferred to the Bush Administration and “interfered” with nothing the Commander-in-Chief wanted. Bush followers have controlled every aspect of this war from start to finish. If they were looking for someone to blame for its failure, one would think they would look to those who controlled the war top to bottom, back and front. One would be wrong.

The finger-pointing began this weekend when Bill Kristol, unquestionably one of the most influential war proponents most responsible for our invasion, essentially acknowledged that his Iraqi project was failing by blaming the military for failing to fight the war hard enough. Just like the slightly modified Leninists that they are, neoconservatives are blaming the faulty and insufficiently loyal implementation of their theories for this failure while insisting that their theories remain pure and good (“Communism didn’t fail because it’s a wrong theory, but because it was poorly implemented by Stalin”).

In fairness to Kristol, he has been blaming Rumsfeld and the military for a couple of years now for the failure of the war. But that’s only because Kristol has long recognized that the war was failing, and got an early jump on his campaign to ensure that he is not stuck with the blame. The consequences which will be unleashed by a failed war effort in Iraq are astronomical. This war failure is killing George Bush’s presidency, and someone is going to be saddled with an extreme amount of blame and guilt over what has occurred.

What we see now are the rats on the sinking ship scrambling around desperately to point fingers in order to ensure that the blame and the consequences are heaped on someone – anyone – other than them. For Bill Kristol to go on national television and blame the Bush Administration and our country’s military for the failure of his war is an act that is as despicable as it is revealing of the true magnitude of the desperation of the war proponents.

And then we have those self-defenders who will sink a level lower than even the level to which Kristol descended by seeking to blame war opponents for the war’s failure. At least Kristol had the intellectual honesty and decency to try to shove the blame onto those who actually influenced the prosecution of the war (the Defense Department and the military). These "blame-the-war-opponent" types are actually trying to blame their own failures on people who control nothing and influenced nothing.

Unsurprisingly, a rather pure example of this cowardly refusal to accept responsibility for one’s mistakes has been offered up by the always self-justifying Bush apologist Jeff Goldstein, who shared this blame-shifting gem with us yesterday:

One of the important points made in this excerpt (the entire piece is available to subscribers only) is that a goodly portion of our success or failure in Iraq has ultimately to do with how we react in terms of either lending our support or leveling our criticisms against the campaign.

And this is (and has been) a crucial component of the war—one that many on the anti-war side are loathe to admit: that their constant naysaying, though it is well within their right to voice, has objectively hurt the war effort, particularly when the criticism incorporates carefully-crafted falsehoods many of the war’s critics know for a fact to be objectively untrue.

From my perspective, there comes a time when, having registered disagreement with the war, the war’s critics (and here I’m not talking about critics of individual strategical or tactical initiatives, but rather those who have been against the effort from the start) simply wait and—if things fail—rush to brag of their prescience and perspicuity. But in the meantime, actively working to undermine the effort by presenting our enemies with a rabidly partisan divided front (one of their chief aims, remember)—whether it be through suggestions that we are in Iraq “illegally”, or that the President “lied” to take us to war, or seemingly hoping, on a daily basis, that the whole thing devolve into a civil war—matters. And not just rhetorically.

One can bet the mortgage that we’ll be seeing a lot more of this over the next few months – between now and, say, oh, November or so. Those who insisted on this war, who started it, who prosecuted it, who controlled every single facet of its operation – they have no blame at all for the failure of this war. Nope. They were right all along about everything. It all would have worked had war critics just kept their mouths shut. The ones who are to blame are the ones who never believed in this war, who control no aspect of the government, who were unable to influence even a single aspect of the war, who were shunned, mocked and ridiculed, and who have been out of power since the war began. They are the ones to blame. They caused this war to fail.

The Chief Blame-Passer, the President who is blessed with Infallibility on the Big Issues, has already laid the groundwork for this blame-shifting by repeatedly reminding us of our obligation to engage in only what he deems “responsible debate” about the war, lest we embolden the enemy and undermine our war effort:

We face an added challenge in the months ahead: The campaign season will soon be upon us -- and that means our nation must carry on this war in an election year. There is a vigorous debate about the war in Iraq today, and we should not fear the debate. It's one of the great strengths of our democracy that we can discuss our differences openly and honestly -- even in times of war. Yet we must remember there is a difference between responsible and irresponsible debate -- and it's even more important to conduct this debate responsibly when American troops are risking their lives overseas. . . . .

When our soldiers hear politicians in Washington question the mission they are risking their lives to accomplish, it hurts their morale. In a time of war, we have a responsibility to show that whatever our political differences at home, our nation is united and determined to prevail.

Virtually every prediction the President and his followers made about this war has proven to be false, while virtually every prediction made by war opponents has proven to be true. The President and his followers controlled every part of this war with an iron fist, ignoring anything which their political opponents said and insisting on the right to exert full-scale, undiluted control over it. And now it has failed. And it’s everyone’s fault except theirs.

Claimed conservative belief in “Personal Responsibility”:

R.I.P. -- 1964-2006.

Pushing the teetering monster

(updated below)

There were numerous comments expressing some questions about, and disagreement with, my observations yesterday regarding the FISA amendments proposed by the Specter bill. Many of those questions and diagreements highlight some broader and extremely important issues raised by the NSA scandal generally, so I wanted to address the most commonly made and significant objections:

(1) I am not in favor of the Specter bill and was not suggesting that the bill itself would be a good law. Quite the contrary. FISA is a carefully constructed legislative framework which balances the need to have our government aggressively engage in foreign intelligence surveillance while ensuring that the past abuses by our government of eavesdropping powers do not repeat themselves. It has worked extremely well for 30 years and it was amended in 2001 at the request of the Bush Administration in order to cater it to the modern communication technologies which the Administration claims are used by terrorists.

Until George Bush got caught breaking this law and needed a defense, nobody serious ever -- over the 30 years since its enactment -- suggested that FISA was unconstitutional or even problematic. The opposite is true: we defeated the Soviet Union while our government eavesdropped only in accordance with FISA, and George Bush lavishly praised FISA when it was liberalized in the aftermath of 9/11 as a tool which enables the government to "conduct court-ordered surveillance of all modern forms of communication used by terrorists . . . ."

FISA is a law which enables strong, aggressive eavesdropping while preventing abuse, and there is no need to change it -- certainly not fundamentally. The Specter legislation provides eavesdropping powers to the government which are far too permissive and which simply are not necessary.

But we have to live with reality and the reality is that this legislation has now been introduced by the Chairman of the Senate Judiciary Committee and, I’d be willing to wager a fair amount, many Democrats (and some, but not by many, Republicans) will be tempted to support it as some sort of illusory middle ground. I do not believe this bill has any real chance of being enacted because the White House will vigorously oppose it. But since wishing it away is not an option, one can try to find ways to use it for beneficial outcomes. That was the point of my post – not to praise the legislation but to identify ways that it can be beneficial in fueling this scandal and in highlighting the Administration’s true law-breaking motives.

(2) In response to my original post on Sunday about the Specter bill, many people suggested that this bill was the by-product of some sort of secret agreement with the White House designed to quietly end the scandal. Republicans would get on board with the Specter bill and the scandal would go away.

I do not agree with that analysis because this bill is nothing like what the White House wants and they will never support it. In many ways, it is the opposite of what the Administration wants, because it is based on the premise that the courts and Congress have substantial powers to regulate and oversee what the Administration does in these areas, and the Administration’s primary goal is to reject and kill the idea that the other branches have a role to play in limiting what the President can do. And, indeed, the reaction to Specter's bill from Bush followers was vehement, even angry, opposition -- precisely because it undermines the "principle" that George Bush has the power to break the law in the name of Al Qaeda.

That is why I believe that this bill can exacerbate the wedges among Republicans and fuel this scandal. There are many Republicans (I believe Specter is one) who take the Administration’s claims at face value and believe that they violated FISA not because (as I believe) they do not recognize any checks on their national security powers, but because they genuinely believed that FISA was too restrictive or cumbersome to allow them to engage in important counter-terrorism surveillance.

These Republicans will be disabused of that belief once it becomes apparent that the White House is not interested in FISA amendments but is only interested in solidifying its unilateral, unchecked power over all matters relating to national security, and will therefore reject any framework (no matter how much eavesdropping power they have) which entails any meaningful oversight or restriction on what they can do.

And it will become more apparent generally that this scandal is not a dispute over what the proper scope of the government’s eavesdropping powers should be. It goes far beyond that and raises a much more profound crisis. The scandal is not about eavesdropping and whether the President should be able to eavesdrop without warrants but about the rule of law and whether the President has, as he claims, the power to break the law. Anything that highlights that still under-appreciated point is something I find valuable and, for the reasons I explained, the Specter legislation (whether intentionally or not) does exactly that.

(3) From the beginning of this scandal, I have tried to emphasize that the Administration’s wrongdoing here is completely independent of whether or not they abused their eavesdropping powers by intercepting the communications of, say, journalists or political opponents rather than suspected terrorists. This is important to note because the Administration broke the law by eavesdropping on Americans without judicial oversight and approval, and that is true -- and it is unacceptable, scandalous and profoundly dangerous -- regardless of whether the Administration, in addition to breaking the law, also engaged in eavesdropping abuses.

This scandal is not dependent upon proving that the Administration abused their eavesdropping power. Right now, this is a law-breaking scandal. The scandal is that the President claims the power to violate the law and did so here by eavesdropping on Americans without the judicial oversight and approval which the law requires. If it turns out that the Administration abused its eavesdropping powers, then that is a second scandal – a separate eavesdropping scandal which would be extremely serious in its own right. But the NSA scandal arose not because of proof of eavesdropping abuses, but because of proof that the President broke the law. Repeatedly and deliberately.

We do not yet know how the Administration exercised these powers precisely because they eavesdropped in secret, without the oversight which American citizens required for eavesdropping. That’s why a Senate Intelligence Committee investigation is so imperative; it is one of the few real mechanisms for discovering whether the eavesdropping powers were abused.

But, while we do not yet know if the Administration abused its eavesdropping power, what we do know – for certain – is that the President broke the law because he has seized law-breaking powers. That fact, by itself, creates a serious governmental crisis and does not depend upon the independent issue of how the eavesdropping powers were used.

Every time I make this point, some people invariably react as though I am denying that the Administration abused its eavesdropping powers. That is not my point. I do not deny that the Administration abused its eavesdropping powers because I don’t know if they did or didn’t. Nobody knows, precisely because they eavesdropped in secret and without oversight. And given the history of eavesdropping abuses as well as the corrupt character of this Administration, I would not be surprised at all if they did engage in eavesdropping abuses, and would probably be surprised if they didn’t.

But I think it’s critically important to keep the law-breaking issue separate from the eavesdropping abuse claims. The President cannot be allowed to break the law no matter what motives he claims he has in doing so and no matter what conduct he engages in when breaking the law. We know the President broke the law and continues to do so, and that -- by itself -- presents a profound threat to our basic constitutional principles and to the rule of law, regardless of how the eavesdropping powers were exercised.

(4) Many commenters observed that the Specter legislation is useless because even if it became law, the Administration would simply violate it when they want just as they are violating FISA. I agree entirely - and, for me, that is the whole point that needs our exclusive focus.

A dispute over the proper scope of eavesdropping power and what evidentiary standards should be met to obtain eavesdropping authority is important, but it is a garden-variety political debate. What our country is facing – whether it realizes it yet or not – is far, far beyond that. As I said yesterday:

In our country today, having Congress enact legislation is no longer enough for a bill to become an actual, binding law. What is now required as well is that the Administration agree to be bound by the legislation, because we currently live in a country where -- with regard to national security -- the President believes he has the power to obey only those laws that he agrees to obey (while having the power to break those laws which he does not agree to obey).

The Administration, of course, is already violating the current Congressional statute designed to regulate its eavesdropping activities and it has stated that it has the power to do so. Thus, the only way this legislation would ever matter is if the Administration agrees to adhere to this law.

In sum, under our current system of Government, what used to be called a "law" is now more like a contractual offer or a suggestion. When the American people pass a law through our Congress, we have to hope that the President will agree to obey it. But as the President has repeatedly made clear, he believes he does not have to and he may decide – in secret – to violate the law. That’s the profound crisis and scandal plaguing our country that few seem to want to acknowledge.

The public does not realize that the crisis we face is a crisis of the rule of law, borne of the fact that the President of the United States has expressly arrogated unto himself the power to break the law, and is exercising that power on numerous fronts, not only with regard to
eavesdropping. The reason they do not yet realize this is because this scandal has been depicted – by the media and, infuriatingly, even by Democrats – as being an eavesdropping scandal, not a law-breaking scandal. As a result, debate has centered over whether the government should be eavesdropping, not over whether the President has the power to break the law.

I believe that making the public aware of the true issue at the heart of this scandal is the most important priority, by far. I have always said that I believe this scandal can be resolved the way it ought to be and that we can impose consequences on the President for his illegal conduct if public opinion demands that. And, in my view, the public will demand that once they realize that the President of the United States has expressly claimed that he has the power to break the law and is doing so.

We have a history in this country of punishing political officials who believe that they are above the law, and George Bush is no different. If anything, his extreme and ever-increasing unpopularity makes him more vulnerable than ever. Every recent poll, including yesterday’s CBS poll (.pdf), shows that a majority of Americans already believe that the President’s warrantless eavesdropping is illegal. The public, which does not trust George Bush at all, is primed to be convinced, and I believe they can and will be.

For many reasons, this campaign of persuasion will not come from Democrats in Washington or the media on their own. But it doesn’t need to. Pressure to hold the government accountable for its law-breaking and to reject claims of law-breaking powers is going to have to come from citizens expressing their refusal to accept these assaults on the principles of government that have made our country free, strong and great for the last two centuries.

The blogosphere is one tool, an extremely important tool, for reaching large numbers of citizens. Critically, it enables information to be communicated directly to other citizens en masse without the intervention of the establishment media, and independently enables concerted action without having to rely on some party apparatus or other clunky, obsolete, stagnation-producing mechanisms such as the beltway "advocacy organizations."

There are projects underway which, though in their incipient stages, can be significant in reaching large numbers of people and affecting how they view these matters. And as I’ve alluded to before, I have been developing a project which I think can be quite significant in shaping the public debate over this scandal specifically and the crisis of law-breaking generally which I will be able to announce (with a good deal of excitement) in a couple of days.

One of the many brilliant attributes of our system of government is that citizens really do serve as a meaningful check on government abuses, and they do so in endless, ever-changing ways. To recognize that fact does not require optimism -- just reality. Throughout our history, Americans have figured out methods for destroying corrupt institutions and smashing even the most ingrained practices and laws -- and when they could not find ways to do so, they invented new ones. Seemingly invulnerable and omnipotent political figures and movements have been destroyed, all as a result of the actions of citizens who have made large numbers of Americans aware of the need to act.

Whatever systems are in place are in place because they were constructed by human beings. Any systems built by human beings can be torn down and replaced just as easily as they were built. There is nothing invulnerable or omnipotent about the Bush movement or the systems which they have erected in order to fuel their agenda. It can be brought down just as easily as others like it have been destroyed.

All that is needed is for citizens to become aware of just how radical and dangerous their conduct is. It’s happening already, and there is no reason whatsoever to convince oneself of the futility of battling against it. Quite the opposite. There is every reason to believe that it is starting to teeter and just needs a good, hard push to fall and shatter.

UPDATE: The Senate Judiciary Committee is holding hearings today with a panel of professors and former government officials (including conservative Administration critic Bruce Fein and the odious defender of Bush law-breaking, Professor Robert Turner). According to Georgia at Kos, the proposed Specter legislation was at least one of the issues being discussed. I was unable to listen to the hearing, so if anyone finds where there is a transcript, I'd appreciate if you could post the link in Comments or e-mail it to me.

UPDATE II: Markos posted an amazing 50-state survey on the views of Americans regarding the NSA scandal -- and specifically their beliefs about whether George Bush broke the law. In 37 out of 50 states, a plurality believe that it is clear that Bush broke the law. The best state for Bush is Oklahoma, where only 42% believe that he clearly did not break the law - the highest number of any state which thinks that. In almost every state, between 20-25% believe it's not clear one way or the other, which demonstrates that scores of people are still open to being persuaded on this question (while a plurality, as every poll shows, already believes that Bush broke the law).

The potential benefits of the Specter legislation

(updated below)

Having now carefully reviewed Sen. Specter’s proposed legislation to amend FISA (rather than just the amazingly incomplete and even misleading description of the legislation from yesterday's Washington Post article), I can say with confidence that neither this bill nor any modified version of it is going to be even remotely acceptable to the Bush Administration. And, in ways that may (or may not) be intended by Specter, this proposed legislation -- which the Administration is sure to reject -- can achieve the critical goal of highlighting the Administration's true motives in violating FISA.

As I have argued many times, this scandal arose not because the Administration has adopted some radical views specifically about its eavesdropping powers, but instead, this scandal, at its core, is based on the fact that the Administration has embraced the general theory that the President has the right to make decisions about all matters concerning national security without any limitation or "interference" from the Congress or the courts. The Administration did not eavesdrop in violation of FISA because it believed that the FISA standards were too restrictive or that the FISA process was too cumbersome. It eavesdropped outside of FISA because it believes it has the power to eavesdrop (or do anything else relating to national security) in total secrecy, without any judicial or Congressional oversight and without having to justify its actions to anyone.

For that reason, any legislation (such as Specter's) which simply liberalizes FISA standards but still requires judicial approval as well as judicial and Congressional oversight will be unacceptable to the Administration. The Administration has been and still is defending a general theory of unchecked Executive power, not a theory of eavesdropping. They don't care about tinkering with FISA standards. They care about the power to make national security decisions (including, but not limited to, eavesdropping) without any oversight or limitation. As a result, the Specter legislation will not be any more acceptable to them than the current FISA legislation is, and their rejection of it will only serve to highlight just how radical the Administration's position is -- something which, in my view, is a development that ought to be welcomed and encouraged.

While it is true that, as Marty Lederman noted yesterday, the burden which the Administration would have to meet in order to eavesdrop under the Specter legislation would be substantially lowered as compared to what FISA currently requires, it is also true that the legislation provides meaningful – one could even say stringent – mechanisms for both judicial and Congressional oversight, and vests the FISA court with rather broad discretion to approve or reject the eavesdropping programs submitted by the Administration. For that reason, this bill is far from some magic bullet that will quietly resolve this scandal to the satisfaction of the Administration, because I do not believe the Administration can or will accept this legislation.

I want to first summarize the important highlights of this proposed legislation and then describe why I believe quite strongly that this legislation will not resolve anything and may even be quite beneficial in pushing this scandal forward. In sum, because the legislation does provide some meaningful oversight and some substantive restrictions on the President’s ability to eavesdrop on Americans, I don’t think the legislation itself is as pernicious as Marty Lederman suggests and I do not think the Administration will ever accept it.

Highlights of Specter's proposed legislation

In essence, Specter’s proposed legislation abolishes FISA’s requirement that FISA warrants be obtained for each eavesdropping target. Instead, the Administration would be free to eavesdrop without warrants as part of any warrantless eavesdropping program provided that it obtains permission for each such program from the FISA court -- permission which it must obtain every 45 days (Sec. 702(a)).

For any warrantless eavesdropping program the Administration wishes to implement, the Attorney General is required to submit an affidavit to the FISA court every 45 days detailing a wide range of information about the program (sec. 703(a)(1-14)), including:

(4) a statement that the surveillance sought "cannot be obtained by conventional investigative techniques" or by obtaining a FISA warrant;

(6) "the means and operational procedures by which the surveillance will be executed";

(7) a "statement of the facts and circumstances . . . to justify the belief that at least one of the participants in the communications to be intercepted" is an agent of a foreign power" or a "person who has had communication with the foreign power" and,

(14(D)) "the identity, if known, or a description of the United States persons whose communications. . . were intercepted by the electronic surveillance program."

Even under such warrantless eavesdropping programs, surveillance of a person without a warrant is authorized only for 90 days, after which a warrant is required (Sec. 703(a)(12)).

Specter’s bill requires submission to the FISA court for approval of all warrantless eavesdropping programs -- i.e., not only the specific warrantless eavesdropping program which the New York Times disclosed, but any and all currently illegal eavesdropping programs. It thus requires FISA court approval of the program "sometimes referred to as the ‘Terrorist Surveillance Program’ and discussed by the Attorney General before the Committee on the Judiciary . . . on January 6, 2006," and further requires "approval of any other electronic surveillance programs in existence on the date of enactment of this title that have not been submitted to the Foreign Intelligence Surveillance Court." Sec. 702(e)(2).

For each program for which the Administration seeks approval, the FISA court is required to authorize the program if, in essence, it finds (Sec. 704(a)(2-3)) that the eavesdropping program is consistent with constitutional guarantees (i.e., the Fourth Amendment) and that:

there is probable cause to believe that the electronic surveillance program will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power specified in the application.

But critically, beyond this provision, the legislation vests substantial discretion in the FISA court to determine "whether the implementation of the electronic surveillance program supports approval of the application . . . " (Sec. 704(b)).

In other words, the FISA court is required to compare the information obtained by the program to be approved for three prior 45-day periods to determine that it has been implemented in accordance with the proposal submitted to the FISA court by the Administration. The FISA court may approve of the program only if it finds that the "benefits of the electronic surveillance program" justifies its authorization, and that it is being implemented consistently with the proposal previously submitted to the FISA court by the Administration. If it does not so conclude, it can (and must) reject the application. That is rather substantial and broad discretion to vest in the FISA court.

There is also a provision in the legislation for Congressional oversight. Section 705 requires submission of a detailed report to the Chairs and ranking members of the Senate and House Intelligence Committees every 45 days. The report must include a description of the information obtained by the program and the means and procedures by which the information was obtained.

A few other notes about the legislation:

(a) it allows warrantless eavesdropping programs not only for international calls from or to the U.S., but purely domestic communications as well;

(b) it expressly excludes from the approval requirement pure data mining activities or the obtaining of information reflecting the details of one’s communications short of the content of the communications -- i.e., the requirements "do not apply to information identifying the sender, origin or recipient of the electronic communications . . . that is obtained without review of the substance of the electronic communication." Sec. 702(d)(2); and,

(c) this legislation is clearly intended to supplant, not supplement, Specter’s prior announced intention to require submission to the FISA court of the question of the program’s legality.

The Specter proposal will resolve nothing and may even be beneficial.

An analysis of Specter’s legislation must begin with the still-staggering observation that this legislation would become effective not merely by Congress enacting it (even over a veto), but instead, only by the President agreeing to be bound by the law.

In our country today, having Congress enact legislation is no longer enough for a bill to become an actual, binding law. What is now required as well is that the Administration agree to be bound by the legislation, because we currently live in a country where -- with regard to national security -- the President believes he has the power to obey only those laws that he agrees to obey (while having the power to break those laws which he does not agree to obey).

The Administration, of course, is already violating the current Congressional statute designed to regulate its eavesdropping activities and it has stated that it has the power to do so. Thus, the only way this legislation would ever matter is if the Administration agrees to adhere to this law.

In sum, under our current system of Government, what used to be called a "law" is now more like a contractual offer or a suggestion. When the American people pass a law through our Congress, we have to hope that the President will agree to obey it. But as the President has repeatedly made clear, he believes he does not have to and he may decide – in secret – to violate the law. That’s the profound crisis and scandal plaguing our country that few seem to want to acknowledge.

Beyond this always-paramount crisis is the fact that the Administration, in light of the positions it has emphatically staked out, cannot possibly accept the meaningful limitations and oversight contained in the Specter proposal. The Administration has repeatedly claimed that national security requires that it be able to eavesdrop with total secrecy and without any limitations from the courts or Congress. It therefore cannot and will not accept a framework which imposes such limitations. The Administration's position will surely be similar to the comment made here last night by the bellwether Bush loyalist Bart:

No, its more unconstitutional overreach by the Congress. If I were the AG, I would recommend the President veto the law, ignore it if the veto was overridden and let the courts settle the constitutionality of FISA.

The Administration has another, independent problem in accepting anything like the Specter legislation. If the Administration accepts these FISA revisions, the glaring question will remain as to why the Administration did not simply seek these revisions previously from the GOP-controlled Congress instead of violating the law in secret. Accepting FISA revisions now will make clear that there was never a need to violate the law; the Administration simply could have requested changes to FISA and still eavesdropped in accordance with the law.

For these reasons, I believe that this legislation could actually achieve a good result for this scandal – in a sense, it calls the Administration’s bluff. From the beginning of this scandal, the Administration has claimed that it eavesdropped outside of FISA because the FISA standards are too restrictive and the FISA process too cumbersome to enable the eavesdropping it wants.

But the falsity of that excuse has been apparent from the beginning – because FISA is incredibly permissive, because the FISA court has rubber-stamped virtually every application it received, and because the Administration could have easily had Congress make any liberalizing revisions it wanted to FISA, but it never did so, opting instead to ignore the entire FISA framework when eavesdropping.

The reality that has long been apparent is that the Administration did not want – and still does not want – to have any oversight at all, or any approval requirements for its eavesdropping activities. Instead, it insists on the power to eavesdrop in secret, without anyone knowing whose communications it is intercepting and without having to justify the eavesdropping to anyone, let alone to some unelected judges.

The Administration does not care about loosening FISA standards and it never did. That’s why this Specter legislation does nothing for it. It cares only about one thing: the principle that the President is free to act without interference from Congress or courts when it comes to making decisions broadly relating to national security. Anything that undermines or negates that unchecked, unilateral power will be equally unacceptable to the White House.

As I’ve argued many times, this scandal really has nothing to do with the President’s eavesdropping powers. It has to do with the fact that the Bush Administration has embraced and insists upon implementing a system of Government where the President can act without limitation from the courts or the Congress. Its conduct in violating FISA is not due to any specific eavesdropping theories, but instead is a manifestation of those overarching theories of unchecked executive power.

Whether the Administration also violated FISA because it wants to eavesdrop in a way that is improper and abusive, or simply because they will not compromise the principal that they have the power to act without interference from the courts or Congress, the Specter legislation – or any framework which provides for any substantive oversight and limitation on its eavesdropping power – will never be, and can never be, acceptable to the Administration.

The Administration’s rejection of this liberalized FISA framework will reveal its true motives in violating FISA. The Administration did not eavesdrop outside of FISA because FISA is too cumbersome or restrictive. It eavesdropped outside of FISA because it does not recognize the concept of checks and balances on which our country is based, and it insists upon the unilateral and unchecked power to eavesdrop (and to do anything else broadly relating to national security) without any oversight or checks at all.

That startling fact needs more attention. What will surely be the Administration’s emphatic rejection of the Specter legislation will illustrate the Administration’s true motives in violating FISA and the radical nature of its beliefs about its own power. We need to have the debate over the Administration's seizure of unchecked power out in the open. To the extent the Specter legislation can accomplish that, it ought to be welcomed.

UPDATE: It is worth remembering that Congress, as part of the Patriot Act, gave the Administration all of the FISA amendments it asked for to liberalize FISA, and the Administration -- at roughly the same time -- still went ahead and violated FISA by eavesdropping outside of its framework. That fact alone ought to demonstrate that the Administration is not and has never been interested in liberalizing FISA. The Administration is interested in solidifying its law-breaking powers and insisting on the right to act without having to adhere to the law.

Specter proposes a new law -- something called "FISA"

(updated below)

This article from today's Washington Post is nothing short of surreal:

The federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants, under a bill being proposed by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.).

Specter's proposal would bring the four-year-old NSA program under the authority of the court created by the 1978 Foreign Intelligence Surveillance Act. The act created a mechanism for obtaining warrants to wiretap domestic suspects. But President Bush, shortly after the 2001 terrorist attacks, authorized the NSA to eavesdrop on communications without such warrants. The program was revealed in news reports two months ago. . . .

The draft version of Specter's bill, which is circulating in intelligence and legal circles, would require the attorney general to seek the FISA court's approval for each planned NSA intercept under the program. Bush has said the agency monitors phone calls and e-mails between people in the United States and people abroad when any of them is thought to have possible terrorist ties.

It is, of course, so disorientingly bizarre to hear about a proposed law requiring FISA warrants for eavesdropping because we already have a law in place which does exactly that. It's called FISA. That's the law the Administration has been deliberately breaking because they think they don't have to comply with it and that Congress has no power to make them. Reading this article about Specter's proposed legislation is somewhat like hearing that a life-long, chronic bank-robber got arrested for robbing a bank over the weekend and, in response, a Senator introduces legislation to make it a crime to rob banks.

In fairness to Specter, one can conjure up a rationale for passing a law which requires (again) that the NSA program be conducted only with the FISA framework -- namely, that such a newly enacted law will negate the Administration's claim for future eavesdropping that the Congress gave the Administration an exemption to FISA via the AUMF (obviously, if Congress, subsequent to enactment of the AUMF, enacts a law specifically requiring any and all eavesdropping by the NSA to be conducted only under the purview of the FISA court, not even the Administration could argue that it remains exempted from FISA by virtue of the AUMF).

Regardless of the intentions, there are two glaring problems with Specter's proposed legislation. The first is that it renders the "rule of law" a meaningless illusion. Nothing in Specter's proposed legislation would release the Administration from liability or other consequences from their four-year history of intentional law-breaking, and, from what I know, he is still pursuing his legislation requiring that the question of the program's legaility be adjudicated by the FISA court.

Nonetheless, this new, proposed legislation would plainly endorse the excuse that there was something previously unclear about whether FISA warrants were required for the NSA eavesdropping - hence, the need for a new law. Not even the Administation claims that the eavesdropping in which they engaged on American citizens was outside the scope of FISA. There was nothing unclear about the law. It criminalized exactly the activities in which the Administration engaged, and no new law is needed.

The far bigger problem is that Specter's legislation ignores the actual crux of this scandal. As I've pointed out many times before, the problem we are confronting is not that the Administration specifically believes that it has the power to eavesdrop without warrants in violation of the law. It does believe that, but only as a manifestation -- a consequence -- of a much broader and more ambitious theory that vests in George Bush the power to break Congressional laws and act even in defiance of court orders on all matters relating to national security, broadly defined.

Therefore, even if Congress were to pass a law such as Specter's aimed specifically at this NSA program, the Administration has already made quite clear that it believes it has the power to violate that law. Alberto Gonzales told the Senators right to their faces that the Administration never bothered to seek approval from Congress to engage in wireless eavesdropping outside of FISA -- and that it is unnecessary for it to do so in the future -- precisely because Congress has no power to restrict what the President does.

Specter's new law would be treated by the Administration as being just as irrelevant and optional as it has treated FISA. Enacting a new law which the Administration is claiming it has the right to ignore is an exercise in futility and idiocy. The Administration has seized the power to break the law. Until that problem is resolved, Specter and his distinguished colleagues and friends in the Senate can pass all of the laws they want, but those laws will continue to be viewed by the Administration as optional suggestions which can be followed if the Administration wants to, rather than actual laws that compel adherence.

I actually think that the Administration's theories vesting George Bush with law-breaking powers are so radical and dangerous that people like Specter can't get themselves to actually accept that the Administration has really embraced these theories and is living them. Notwithstanding the fact that the Administration has expressly advocated these positions in numerous instances in many different contexts over several years now, it's as though people in Congress -- and the media -- think they're not really serious about believing them. I wonder what else needs to be revealed about the Administration's law-breaking for people to start realizing that this Administration really does not only believe that George Bush has these law-breaking powers, but also that they have been exercising those powers for quite some time now and have vowed to continue to do so.

UPDATE: My analysis here of Specter's legislation was based on the description of the proposed bill by the Washington Post article, rather than a reading of the proposed bill itself (which I wasn't able to find online yet). As a result, suggests the always insightful Marty Lederman, I actually under-stated how pernicious this legislation is and erred in some of what I said about it.

I intended not to do a lot of blogging today, so I will have a lot more to say about this tomorrow. Marty has obtained and posted Specter's draft legislation, which I have now read (though not carefully). It does indeed go far beyond simply bringing the NSA program within the purview of the FISA court. What it does is authorize the entire warrantless eavesdropping program itself by directing the FISA court to approve of it every 45 days provided some extremely permissive criteria are met, and in the process, allows eavesdropping without case-by-case warrants. In other words, as Marty points out, it renders legal the lawless NSA program and simply requires the FISA court to rubber-stamp its approval for the program every 45 days.

Nothing in the legislation grants immunity to the Administration for prior lawbreaking, nor would it preclude the legislation Specter said he intended to introduce of requring the FISA court to adjudicate the legality of the program. Clearly, though -- as several commenters in the thread after this post speculated -- Specter's intent seems to be to create an illusion of FISA court oversight over this program while handing the Administration legal cover for its previously illegal behavior. As I said, I'll post a lot more on this tomorrow.

Prepare the noose for Bill Buckley, the Cowardly Traitor

(updated below)

An important and long-overlooked point about the depravity, corruption and truly un-American impulses which define so many Bush followers is revealed by a comparison of these two statements:

Howard Dean, December 5, 2005

Saying the "idea that we're going to win the war in Iraq is an idea which is just plain wrong," Democratic National Chairman Howard Dean predicted today that the Democratic Party will come together on a proposal to withdraw National Guard and Reserve troops immediately, and all US forces within two years. . . .

"I've seen this before in my life. This is the same situation we had in Vietnam. Everybody then kept saying, 'just another year, just stay the course, we'll have a victory.' Well, we didn't have a victory, and this policy cost the lives of an additional 25,000 troops because we were too stubborn to recognize what was happening."

William F. Buckley, Jr. in The National Review, yesterday

One can't doubt that the American objective in Iraq has failed. . . .

Our mission has failed because Iraqi animosities have proved uncontainable by an invading army of 130,000 Americans. . . . .

[Bush] will certainly face the current development as military leaders are expected to do: They are called upon to acknowledge a tactical setback, but to insist on the survival of strategic policies. Yes, but within their own counsels, different plans have to be made. And the kernel here is the acknowledgment of defeat. . . .

These statements, made within a little over two months of each other, are almost identical. If anything, Buckley's statements are a much more emphatic declaration of defeat.

When Dean stated two months ago that we were not winning in Iraq and could not win, Bush followers trotted out their common but literally deranged rhetoric of accusing anyone who opposes the war in Iraq (or Bush terrorism policies) of being a coward, of committing treason, and being a traitor to their country. Indeed, since 2002, Bush followers have been regularly accusing their political opponents who oppose that war of subversion and treason, even as a majority Americans have come to oppose the war in Iraq.

In light of Buckley’s comments, let’s review some of the reaction among Bush followers to Dean’s identical comments about Iraq just two short months ago:

Jim Geraghty, writing in Bill Buckley’s own National Review:

The unified message from the President and GOP surrogates is, "Victory! Elections! They stand up, we stand down!" The message from at least the Dean wing of the Democratic party is, "Withdraw! Defeat! Withdraw! Defeat!"

I think any statement from a national leader that sounds like, "we have been defeated in Iraq" is political nitroglycerin. Families of the troops will be livid at the suggestion that their sons and daughters have failed to achieve their mission.

Should families of the troops be "livid" at Bill Buckley?

Michelle Malkin, the day after Dean's comments:

"Howard the Coward"

The Jawa Report, the day after Dean's comments:

Howard Dean Traitor and Ally to Zaqueery

OK Mr. Traitor, Howie says Mr. Bush is not our enemy. Drop me a line when you wake up to who the actual enemy is. Once again the Left attacks America and
gives terror a free pass.

Ben Shapiro, in an essay bearing the all-American title: "Should we prosecute sedition?" (h/t Hume's Ghost)

Much of the language of the "loyal opposition" has been anything but loyal. . .

Howard Dean, the head of the DNC, averred in December that the "idea that we're going to win the war in Iraq is an idea which is just plain wrong."

At some point, opposition must be considered disloyal. At some point, the American people must say "enough." At some point, Republicans in Congress must stop delicately tiptoeing with regard to sedition and must pass legislation to prosecute such sedition.

And then here was Michael Reagan-- who just happened to appear as guest host on Hannity & Colmes last night, appropriately sitting in for Sean Hannity -- issuing this death sentence for Howard Dean due to Dean's observation (now echoed by Bill Buckley) that we are not winning in Iraq:

Michael Reagan, son of the late President Ronald Reagan, is blasting Democratic National Committee Chairman Howard Dean for declaring that the U.S. won't be able to win the war in Iraq, saying Dean ought to be "hung for treason."

"Howard Dean should be arrested and hung for treason or put in a hole until the end of the Iraq war!" Reagan told his Radio America audience on Monday. Reagan was reacting to Dean's comments earlier in the day, when the top Democrat said that the "idea that we're going to win the war in Iraq is an idea which is just plain wrong."

All of these declarations of treason and calls for criminal prosecution against Dean were based exclusively on his statement that we were not winning in Iraq -- exactly the same statement Buckley made yesterday.

This grotesque exploitation for domestic political gain of patriotism, loyalty and bravery is the single most frequently used rhetorical tactic of Bush followers over the last five years. During this same time, we have been hearing all sorts of complaints about the "Angry Left." Similarly, that the "lefty blogosphere" is composed of enraged, epithet-spewing cretins has become the newly unveiled conventional wisdom among the status-threatened establishment media. And yet, it has become so common as to be routine for Bush followers to stridently accuse their domestic political opponents of being cowards, subversives and traitors, and, increasingly, to call for their imprisonment and/or execution.

While Michael Reagan’s statement about Dean surely was -- in one sense -- one of the single most despicable comments from any political figure in the last decade (and was condemned by virtually nobody), in another sense his comment was not really all that notable. Bush followers have made it a regular staple of our political dialogue for critics of the war in Iraq and/or Bush’s terrorism policies to be accused of subversion and treason.

This is a real question: by the standards which have become commonplace among Bush followers, isn’t Bill Buckley clearly a traitor? We are (of course) in the middle of a war. That war (in Iraq) is the central front in another war we're fighting (the War on Terror, a/k/a the War of Civilizations, World War III, World War IV, the Long War). To surrender in Iraq is -- to use the White House's formulation -- to "surrender to the terrorists." Bill Buckley is clearly on the other side - the side of terrorists. And what a coward he is.

Worse, there are American troops in harm’s way and here is Bill Buckley declaring that Bush has lost the war and should acknowledge America's defeat. Doesn’t Buckley owe the troops an apology? He should be spat on by the families of those troops.

This really is the lowly point to which Bush followers have dragged this country. To oppose the American war in Iraq -- a war that is turning out to be the greatest and most disastrous strategic mistake this country has ever made – has long been sufficient for one to be branded a coward and a subversive. To question the President’s policies on terrorism has resulted in even more severe accusations.

Bill Buckley has now unmasked himself as a cowardly, anti-American ally of Al Qaeda. He wants to wave the white flag to terrorists, and has sabatoged the Commander-in-Chief’s war effort by declaring it a failure. Shouldn’t we bring criminal charges against Buckley, along with demands that he be hanged? On what ground can any of the Bush followers who have long equated opposition to the war with subversion and treason -- and who branded Howard Dean a traitor for a statement identical to the one Buckley made -- oppose those efforts?

The great patriot and American hero Ben Shapiro can prepare Buckley’s noose while that brave American warrior Michael Reagan places the hood over his head and those lovers of American values Michelle Malkin and John Hinderaker lead the throngs as they yell "traitor" and "coward" at Buckley while his neck snaps. That’s the horrendous image which has come to represent the sad, almost-psychotic state of political dialogue which Bush followers have imposed on our country. And that’s just one of the comparatively small harms which the Bush movement has inflicted on America which is going to take quite some time to repair.

UPDATE: As much as they want to, Bush followers can't revoke Buckley's credentials as a conservative since . . . well, he sort of invented conservatism. So, instead, they are now declaring that conservativsm is different than the Bush movement -- something I've been arguing (to the dismay of Bush followers) for quite some time.

Here is Bush lover Captian Ed -- explaining away Bill Buckley -- in the Captain's revealingly entitled post "The Difference Between Bush and Conservatives":

Today's opinion piece by William F. Buckley, the father of American conservatism, highlights the difference between traditional conservatives and the Bush Administration's efforts in foreign policy, along with a host of other arenas.

Bush 43 is not a conservative in foreign policy, at least since 9/11 taught him that genocidal tyrannies in Southwest Asia could produce immediate and existential threats to the American homeland. He has been much closer to Woodrow Wilson than his father or even Ronald Reagan in his reaction to the world.

Bush, of course, is not a "conservative" in domestic policy either, as his record deficit spending, including discretionary non-security-related spending, rather conclusively demonstrates.

As this confession from the Captain reflects, when forced to choose between conservative principles or loyalty to Bush, Bush followers will expressly toss conservativsm overboard and disclaim an association with its principles. I'm pretty sure that was the central theme of an argument I made a week or so ago (entitled "Do Bush Followers Have a Political Ideology?") upon which Bush followers heaped such enraged scorn. It seems that they're coming around to this view, all in a week's time.

That's what will happen when the Father of the political ideology to which they have deceitfully proclaimed allegiance publicly proclaims the crown jewel of the Bush movement to be an abject failure. "It doesn't matter that Buckley says that, because we're not conservatives; we're Bushites." Exactly.

UPDATE II: I have a post up today at Crooks and Liars examining the question of whose judgment was more accurate and wise with regard to Iraq -- Howard Dean's or George Bush's? As their pre-war predictions reveal, it's not exactly a closely contested competition. This matters greatly because we have a serious crisis on our hands in Iraq and Americans must decide whose judgment they believe is entitled to respect with regard to what we ought to do now.

A dying Presidency

(updated below)

George Bush's presidency is in deep trouble. He is vulnerable on every front, including within his own increasingly fractious party. While polls have long indicated that all Americans beyond his alarmingly loyal "base" have abandoned him, even that base is beginning to turn on him. None of his old tricks are working, and the new ones are backfiring.

As Taylor Marsh notes, a new poll by Rasmussen Reports (the polling outfit most trusted by Bush followers) was released today, and it contains not bad news, but panic-inducing news, for Bush and his followers:

For the first time ever, Americans have a slight preference for Democrats in Congress over the President on national security issues. Forty-three percent (43%) say they trust the Democrats more on this issue today while 41% prefer the President.

The preference for the opposition party is small, but the fact that Democrats are even competitive on the national security front is startling. In Election 2002, the President guided his party to regain control of the Senate based almost exclusively on the national security issue.

If Republicans don't have an electoral advantage on national security, what do they have? (To witness a little spastic panic from Bush followers, see here). And after two months of endless attacks on the President's lawless eavesdropping -- after which his approval ratings are pitifully low and Americans now distrust him even with regard to national security -- can we at least have those genius Democratic consultants stop announcing to the world that pursuing the NSA scandal will destroy the Democrats' electoral chances by making them look weak on national security?

And Rasmussen has very bad news for Bush followers beyond just this startling national security data. The lopsided disapproval of Bush by Americans which has long been reflected in every other poll is now reflected by Rasmussen as well:

Forty-four percent (44%) of American adults approve of the way George W. Bush is performing his role as President. Fifty-four percent (54%) disapprove.

Worse (for Bush followers), of the paltry 44% who approve of Bush's performance, only 23% strongly approve, as contrasted with the 38% who strongly disapprove. That means that not only do far more Americans disapprove of his performance than approve, but the disapproval is more intense and more strongly felt than is the approval.

At some point, won't it be difficult for Bush followers and their media allies to keep depicting Bush critics as fringe, deranged freaks, given that a solid majority of Americans are now Bush critics? And, as a corollary, won't it be equally difficult to continue to suggest that anyone who opposes Bush's policies on the war in Iraq or terrorism is a subversive and a traitor, given that this category, too, clearly includes a majority of Americans?

As the 2006 elections approach, Congressional Republicans are going to engage in increasingly strenuous efforts to show independence from this unpopular President by stepping up the attacks and defying the White House more and more. It won't work. The "Republican" brand has been marketed for the last five years as an indivisible, Bush-based product, and the only result which will come from their attempts to extricate themselves from the President to whose apron strings they have been so tightly attached is to increase even further the appearance of confusion, disarray and desperation.

There will be a temptation on the part of Democrats to simply sit back and watch all of this fratricide take place. And that would not be an unreasonable strategy. There is an old courtroom adage which advises that one ought to not get in the way when the other side is self-destructing. When one's adversary in a courtroom is digging himself a deeper and deeper hole with the judge, the last thing you want to do is interfere.

But now is not the time for passivity. Democrats need to step up the aggression now more than ever and take advantage of this wobbly, weakened President. Now is exactly when the Democrats need not fear anything. Americans have abandoned Bush. They no longer trust anything about him - not his integrity, his veracity or his competence. Not even his ability to protect them. And he will not even have Congressional Republicans to protect him, as they will be looking for ways to distance themselves as much as possible.

The absolute worst thing the Democrats could do now is follow the advice of the chronic loser Beltway consultants who excessively calculate every step and drain the life, principle and passion out of everything they touch. More than anything else, what accounted for Bush's popularity in the past (which is where his popularity lies) was the fact that he projected firm, resolute conviction about things that he espoused. It's time for Democrats to demonstrate that attribute as well. Taking an emphatic stand for the principle that the President does not have the right to break the law would be a good place to start.

UPDATE: The father of modern conservatism, William Buckley, may have been one of the people polled by Rasmussen. He announced today that our mission in Iraq has failed:

One can't doubt that the American objective in Iraq has failed. The same edition of the paper quotes a fellow of the American Enterprise Institute. Mr. Reuel Marc Gerecht backed the American intervention. He now speaks of the bombing of the especially sacred Shiite mosque in Samara and what that has precipitated in the way of revenge. He concludes that “The bombing has completely demolished” what was being attempted — to bring Sunnis into the defense and interior ministries.

Our mission has failed because Iraqi animosities have proved uncontainable by an invading army of 130,000 Americans. The great human reserves that call for civil life haven't proved strong enough. No doubt they are latently there, but they have not been able to contend against the ice men who move about in the shadows with bombs and grenades and pistols. . . .

The accompanying postulate was that the invading American army would succeed in training Iraqi soldiers and policymkers to cope with insurgents bent on violence. This last did not happen. And the administration has, now, to cope with failure. . . . .

He will certainly face the current development as military leaders are expected to do: They are called upon to acknowledge a tactical setback, but to insist on the survival of strategic policies.

Yes, but within their own counsels, different plans have to be made. And the kernel here is the acknowledgment of defeat.

A few months ago, when Howard Dean said that he thought we would be unable to fulfill the mission in Iraq as Bush has described it, he was denounced as a traitor and Ronald Reagan's son urged that he be hanged -- literally. And yet, now we have William Buckley saying that our mission failed and it's time for Bush to acknowledge defeat. Will they hang him, too? Once we hang all the tratiors and subversives who have abandoned Bush, there sure won't be many people left.

The Kansas Project

(updated below - updated again)

We are beginning our state-based NSA campaign today by targeting six or seven of the most important newspapers in Kansas, to which the individuals who are participating will submit Op-Ed pieces and Letters to the Editor (everyone is still encouraged to participate). The principal goal is to urge an investigation by the Senate Intelligence Committee and its Chairman, Sen. Pat Roberts, into the NSA scandal. A little bit later today, Jane Hamsher will post details about the logistics and information for submissions, and I will provide the link here when her post is available (update: link is furnished below in the Update section).

The letters and editorials should be individually formulated and expressed (and also should bear a Kansas address), but, to ensure that we have a clear and focused message, the following points can be emphasized by those writing letters and Op-Ed pieces (if there are any suggested additions or revisions, please leave them in Comments):

• Independent of one’s political party, it is vitally important that Congress, and specifically the Senate Intelligence Committee, fulfill its important oversight duties by holding hearings on the scope and reach of the Administration’s warrantless NSA eavesdropping on American citizens. Americans deserve an investigation by our Congress into this eavesdropping, which took place without any oversight, so that we are informed about what our government did and can make reasoned judgments about these important issues.
  
  
  
• Concern over the legality and necessity of warrantless eavesdropping on Americans cuts across party and ideological lines. Numerous prominent conservatives -- including Grover Norquist, George Will, former Rep. Bob Barr, and Kansas Sen. Sam Brownback –- have expressed serious objections to the notion that the Government should eavesdrop on American citizens without any oversight at all. The conflicts raised by warrantless eavesdropping are not partisan or ideological, but instead, implicate the most important constitutional safeguards on which our system of government is based.
  
  
  
• We all favor strong and aggressive eavesdropping against terrorists. The question which requires Congressional scrutiny is why the Administration eavesdropped without the judicial oversight which the American people, through our Congress, required by law. The purpose of this law was to ensure that the Government cannot abuse its eavesdropping powers (as it has in the past) when eavesdropping on American citizens. Because the Administration eavesdropped without this judicial oversight, only Congressional hearings can enable Americans to learn whether the eavesdropping was properly conducted.
  
  
  
• Regardless of one’s political orientation, the NSA program has provoked intense controversy among Americans. Recent polls show that half of all Americans believe that the program violates the law and is wrong. Thus, on a matter of such importance which is dividing our country, both sides in the debate would be well-served by bringing facts to light, a result which can be achieved only if the Senate Intelligence Committee holds hearings on these matters.
  
  
  
• As demonstrated by this week’s controversy over President Bush’s decision to turn operations of some of this country’s most important ports over to the United Arab Emirates, Congress has a critically important role to play in exercising oversight over the Executive branch, even in areas of national security. Our nation was founded on a system of checks and balances because even well-intentioned political officials are prone to errors in judgment.
  
  By ensuring that the branches of Government oversee and check one another, our Founders created a system where errors in judgment and abuses are minimized. Particularly on matters as important as defending our country from terrorist threats and eavesdropping on Americans by the government, those core American principles compel oversight and hearings by our Congress.

• Numerous Republicans and Democrats have called for the Senate Intelligence Committee to hold hearings. Sen. Roberts made public commitments to hold such hearings, which can be structured so as to prevent disclosure of operational details which should remain secret. The American people are entitled to be informed about these matters, and we urge Sen. Roberts to fulfill his duties of Congressional oversight and hold meaningful hearings on this matter.

UPDATE: Jane has now posted the contact information for Op-Eds and Letters to the Editor here. It was compiled by the tireless Thersites at Vichy Democrats, who has some more thoughts here. Right-wing radio expert Taylor Marsh has some creative ideas about how to use the Portgate controversy to make these NSA points more effectively, particularly when calling into talk radio.

Finally, in response to some (understandable and common but, in my view, ultimately misguided and quite harmful) scepticism about campaigns such as this, I explain my reasons here why I think projects like this one are worthwhile despite the obvious obstacles.

UPDATE II: Josh Rosenau is a Kansan blogger and a graduate student at the University of Kansas. He has some excellent thoughts that really are worth reading on the NSA scandal generally, along with suggestions for which newspapers to contact and some additional ideas about how to make these points effectively. He also says this:

If you've moved out of Kansas, but want to write to the local paper where you used to live, that's just fine. Mention where you used to be. If you aren't from Kansas and don't want to be left out, either write to your own local paper, or think creatively about a connection you have to Kansas.

Josh makes an important point. What matters is not necessarily that you live in Kansas right this minute, but that there be some Kansas connection, such as a Kansas address, reflected in the letters and Op-Ed pieces.

Bush followers masquerade as free press advocates while attacking freedom of the press

On the list of threats to our constitutional liberties, the fact that we have a President who has literally seized the power to violate our laws is at the top. But immediately underneath it on the list, in my view, is the concerted and escalating attacks launched by the Bush Administration and its followers on the press’ ability to report on the Administration's conduct. That is why it is so astounding and so grating to see William Bennett parading around as a brave crusader for a free press in his Washington Post Op-Ed today, where he (futilely) drags along Alan Dershowitz with him for cover and credibility.

According to the Op-Ed, "the press has betrayed not only its duties but its responsibilities" by not publishing the Mohammed cartoons. We are then subjected to one of the most nakedly hypocritical statements one will ever encounter:

[O]ur general agreement and understanding of the First Amendment and a free press is informed by the fact -- not opinion but fact -- that without broad freedom, without responsibility for the right to know carried out by courageous writers, editors, political cartoonists and publishers, our democracy would be weaker, if not nonexistent. There should be no group or mob veto of a story that is in the public interest.

As I’ve said before, I believe the press ought to publish those cartoons as a means of defending their right to publish ideas free of intimidation and attack. But the very last people from whom we ought to be hearing sermons about the importance of free expression and a free press -- and about the accompanying duty of the press to publish even those ideas which provoke controversy, outrage and offense -- are Bush supporters, who are plainly engaged in a serious crusade to punish any journalists who express ideas which they dislike or which they believe produce undesirable consequences.

And of all the free-press-attacking Bush supporters, the very last one who has any basis for masquerading as a free press advocate is Bill Bennett, who has built a bloated career over several decades waging war on free expression and a free press, while attempting to compel suppression of ideas he finds offensive. Let us count the ways a free press is under vicious attack by the very people lecturing us about the grave threat to freedom posed by the Mohammed cartoon episode.

As I’ve written about before, the Bush Justice Department is now aggressively pursuing a criminal investigation into disclosure by The New York Times of the Administration’s decision to violate the law when eavesdropping on Americans. The DoJ’s investigation is targeted not only at the individuals in government who disclosed these violations but also at the Times itself, along with the individual journalists responsible for the disclosure, including reporter James Risen and NYT editor Bill Keller. Put simply, the Administration is threatening American journalists with imprisonment for doing exactly what the First Amendment is designed to ensure they can do – namely, report on controversial and legally dubious government actions against American citizens which the government attempts to conceal.

As a result, the demand by Bush followers for the criminal prosecution of The New York Times and the individual editors and reporters responsible for that story has now reached the level of "conservative" conventional wisdom. The influential neoconservative magazine Commentary this month published a long piece calling for criminal prosecution of the Times, Risen and Keller under the Espionage Act of 1917.

Following along, Scott "Big Trunk" Johnson of Powerline wrote an article in the Weekly Standard which he described this way:

The Weekly Standard has posted my column on the laws that govern the disclosure of the NSA program by the New York Times: "Exposure." I argue that the New York Times should be at considerable risk of criminal prosecution under the espionage laws for its disclosure of the NSA surveillance program. Moreover, the individuals at the Times responsible for its conduct in this matter -- James Risen, Bill Keller, Arthur Sulzberger, Jr. and others -- are in plain view. No extensive investigation is necessary to identify them.

Others who are parading around in disguise as free press advocates when calling for the publication of offensive cartoons they like, such as Michelle Malkin, The American Spectator, and others, have favorably cited the Commentary piece and/or joined in these calls for the imprisonment of the NYT journalists. Such principled crusaders for a free press they are.

It is critical to note that these increasingly strident calls for the criminal prosecution of journalists who published one of the most politically damaging stories of George Bush’s presidency are being issued in concert with a concerted effort by the Bush Administration to shape the criminal law so as to enable the criminal prosecution generally of journalists who inform the public of activities which the Administration wants to conceal.

As Fred Kaplan recently described in his vitally important article in Slate, the Justice Department is relying upon a novel and radical theory of the Espionage Act in the Larry Franklin/AIPAC spying case to prosecute not only the government employee (Franklin) who passed classified information to pro-Israeli lobbying groups, but also the private individuals who received that classified information. In other words, the Bush Administration is seeking to criminalize the very act which defines what an investigative journalist does and has always done in America:

An espionage trial about to begin in Alexandria, Va., could threaten the whole enterprise of investigative journalism. . . .

They [the private citizens who received the information are] charged with giving classified information not to foreign governments or spies but rather "to persons not entitled to receive it."

This is what journalists do routinely every day. . . . Still, if some attorney general were to view this case as a precedent, he could go after whole newsrooms on the grounds that the reporters and editors had "reason to believe" the information might be used to harm the United States or to help another country.

As Walter Pincus reported in The Washington Post (h/t Kevin Drum), the DoJ has constructed its case against these private citizens with the clear intent of laying the legal groundwork for being able to criminally prosecute any journalists who receive classified information – an attack on the very heart and soul of what our free press does in fulfilling its watchdog function over the Government:

A lawyer familiar with the AIPAC case said administration officials "want this case as a precedent so they can have it in their arsenal" and added: "This as a weapon that can be turned against the media."

So while Bush followers warn that a free press is threatened because some newspapers decide not to publish cartoons that are offensive to Muslims, the Bush Administration is threatening journalists in this country with imprisonment for publishing politically embarrassing stories, and is implementing legal theories to enable it to criminally prosecute American journalists who receive any information which the Government deems "classified." It is genuinely hard to imagine a more fundamental threat to a free and vibrant press than this.

Time and again, Bush supporters -- who masquerade as free press advocates when it comes to offensive or provocative ideas with which they agree -- have viciously attacked the press and accused them of engaging in subversive and even treasonous activities for a whole host of reasons -- from publishing Abu Ghraib photographs to reporting on torture and abusive treatment of Muslims at Guantanamo to warning about the escalating violence and the ever-deteriorating situation in Iraq. We are told that the press ought to refrain from publishing even true reports and images reflecting U.S. misconduct -- and is even guilty of subversion and treason when they do so -- because publication makes the U.S. look bad in the eyes of the world or undermines our "war effort."

Here is neoconservative commentator and Bush lover extraordinnaire Dennis Prager explaining why publication of the Abu Grahib photos is subversive and wrong:

The second example [of the "Left hurting America"] was a federal judge appointed by former President Bill Clinton ordering the Defense Department to release all remaining photos of prisoner abuse by Americans at Abu Ghraib prison. Though it is certain that the only effect of the photos will be to further endanger Americans at home and abroad and increase the danger to American troops in Afghanistan and Iraq, and though there is absolutely no need for the public to see these photos, the judge ordered their release.

So, to recap so far: publishing stories which inflame Muslims by reporting on American abuses at Guantanamo is wrong and subversive and ought be suppressed. Anyone who states that Iraq is disintegrating and our war effort is failing is harming the troops and is a traitor who ought to be treated as such. Images which depict grotesque acts by the U.S. military are dangerous and their publication is treasonous. But when it comes to anti-Muslim cartoons which are at least as provocative and inflammatory, consequences be damned; lofty principles of a free press demand that they be published and published widely regardless of the reactions.

These demands by Bush followers that ideas be freely expressed without restraint are extremely selective – they want the ideas they like to be disseminated widely and aggressively but ideas which they dislike to be suppressed. In general, when one espouses standards and principles which one applies only selectively and in a self-interested manner, the result is just garden-variety hypocrisy. But when principles of a free press are applied selectively -- such that one urges some ideas to be vigorously safeguarded while other ideas be aggressively suppressed -- it is not merely hypocritical, but incomparably pernicious, because what is really being sought, by definition, is a system of laws and rules which exist to propagandize.

That is exactly the project which Bush followers (spearheaded by their neoconservative chapter) are relentlessly pursuing with their simultaneous attacks on the press (when it comes to ideas which undermine their agenda) and cynical defense of unrestrained expression (when it comes to ideas which promote that agenda). But a press which exists to disseminate anti-Muslim ideas but which must refrain from publishing ideas that reflect poorly on the U.S. or the Administration is not a free press. That is a Pravda-like propaganda arm of the state which exists to glorify the government and promote its aims. That is plainly what these Bush followers are trying to institute.

It is worth remembering that Bush followers have a long and clear history of advocating suppression of ideas which they dislike. Here is Jonah Goldberg -- in an article entitled: "Censorship. Just do it." -- reminding us of the belief in the suppression of ideas which lies at the heart of the Bush movement, including by newfound free expression advocate Bill Bennett:

You don't have to dust off your books by William Bennett and George Will to understand that it is an indisputable fact that the Founding Fathers believed the good character of the citizenry was essential to a healthy republic. And, they believed, laws crafted at the local level — including censorship — could and should be aimed at maintaining good character.

And here is Bill Bennett himself, in the wake of the controversy surrounding Janet Jackson’s breast, advocating government penalties against Howard Stern for expressing bad, inappropriate thoughts and urging increased penalties from the Government for those who express ideas which Bennett thinks are offensive and wrong:

Yes, there are government instituted fines for indecency—and they likely influence private decisions. But that is to the good, just as there are fines for other kinds of public polluting—the effect of which does encourage private corporations and individuals to act more responsibility; to not trash the streets, the air, or the culture. Indecency fines are effective to be sure, and they probably should be increased.

In the same essay, Bennett explains that "censorship" only exists when the government bars the expression of ideas, not when private media entities cave into pressure and refuse to publish them on their own. Back then -- when it came to the suppression of ideas that he disliked -- Bennett insisted that there was nothing disturbing at all about private media entities refusing to publish provocative or offensive ideas in response to public outrage -- the very opposite of the argument he advanced this morning in the Post. In fact, for years Bennett has been working to pressure media entities -- including with threats of legislation and fines -- to refrain from publishing ideas Bennett finds offensive.

Attacks on the expression of controversial and provocative ideas is a core principle of this strain of self-identified "conservatives." A pro-censorship cover story by David Lowenthal was published in The Weekly Standard which was entitled "The Case for Censorship" (a chapter in Robert Bork's best-selling book bore the same name and expressed the same pro-censorship views). Bennett himself praised Lowenthal's pro-censorship article by writing: "I agree with much in professor Lowenthal's article," but concluded that censorship would be difficult to implement because of the public opposition it would provoke.

What is going on here could not be clearer. A free press is one of the few remaining checks on our government. People like Bennett want to compel the press to publish ideas which they like by disguising their demands under a banner of a principled belief in a free press – a belief which immediately disappears when the press publishes ideas that they dislike or which are politically damaging to the President, in which case the press should be attacked as subversive and treasonous and even be criminally prosecuted by the Bush Administration.

While Bennett decries the unwillingness of the media to stand up to Muslim mobs, the press has been deafeningly silent about the Justice Department's threats of criminal prosecution against the NYT and the Administration's legal maneuverings to enable further attacks of criminal prosecution on investigative journalism generally. Genuine advocates of a free press would be highly alarmed, and outraged, not only by the self-censorship of newspapers with regard to these cartoons, but also by the concerted efforts within our country, from the Bush Administration, to intimidate and suppress anti-government journalism.

NSA scandal and Portgate - a perfect match

When this port controversy erupted yesterday, I thought that it might be prudent to wait a few days before activating the focused, state-based campaign designed to influence the NSA investigations which Jane Hamsher, John Amato and I described a couple of days ago. I originally thought that with the media attention focused for the time being on the Administration's growing port problem and seemingly intractable dispute with Congressional Republicans, it might be difficult to induce people to pay attention to the NSA scandal until the port dispute settled down a little.

But after thinking about it more and talking further with those who have begun to participate in our project, I actually think the reverse is true -- that the serious split between the Administration and their formerly compliant Congressional allies is, for many reasons, the perfect framework in which to press for real Congressional investigations into the NSA scandal. The emergence of this sharp wedge between the Congress and White House, as well as the distrust of the White House which the port controversy is generating, create the ideal groundwork for agitating for Congressional investigations.

The principal argument which has been invoked by the President's apologists for suppressing investigations -- namely, that we should blindly trust the President on national security matters and that Congress has no business investigating the President's decisions concerning the "war on terror"-- is entirely obviated by the port controversy. In response to demands for an NSA investigation, it will now ring intuitively false for any Republican Senator to claim that Congress has no role to play, or that the Administration should be trusted with no oversight, when it comes to making decisions about how to defend the nation.

After all, the spectacle playing out in front of everyone's eyes is precisely the opposite -- namely, Congressional Republicans are insisting that they need to intervene in the decision-making process of who will control our ports precisely because the Administration has exercised such poor judgment and cannot be trusted to operate without Congressional oversight. In many ways, this conflict between Congressional Republicans and the Administration is the perfectly constructed antidote for the noxious excuse we've been hearing (from Pat Roberts, among others) that Congress should not bother the White House about any decisions which the President makes relating to defense of the country.

Beyond that specific point, this port controversy represents yet another instance where the Administration expressed its transparent contempt for the notion that Congress has any real role to play in our system of Government other than giving symbolic endorsement to the dictates of the President. Drenched yet again with the humiliation that comes from being ignored and misled, members of Congress -- including Republicans -- will be in no mood to play the role of meek little rugs which lay quietly on the floor and have no role other than to conceal the Administration's dirt. Helping the White House evade accountability for the NSA scandal by continuing to stonewall investigations would appear to be the very last thing this Congress -- desperate to demonstrate its institutional dignity and independence -- would be inclined right now to do.

In light of all of that, we want to being our laboratory experiment by first targeting Kansas -- because it has a Senator (Roberts) who is probably the single most important person right now in determining whether a Senate Intelligence Committee investigation will proceed; because it has another Senator (Brownback) who is on the Judiciary Committee and has expressed strong objections to the White House's NSA law-breaking; and because we have had a substantial number of Kansans who are very familiar with the political terrain in that state step forward to work with us.

We believe we can develop a potent strategy for generating as much pressure and persuasion as possible towards Roberts (and Brownback) to encourage a meaningful investigation into to the NSA scandal -- not because the Administration should per se be assumed to be guilty of high crimes, but because the NSA program has generated a very intense controversy and Americans ought to know what our Government has been doing with regard to its secret eavesdropping on American citizens.

Only a meaningful Congressional investigation into the operational aspects of the program (obviously with safeguards to prevent disclosure of genuinely classified information) can bring these facts to light. The Administration has repeatedly claimed that it welcomes an investigation; it's time for the Congress to ensure that Americans can know the facts about what happened here.

Jane is working with the people in Kansas who are working on this with us. If you live in Kansas and have connections to that state and want to help, please contact Jane. Over the next couple of days, we hope to have finalized this first step, and will then begin to work on developing a strategy for the next couple of states (maybe Maine, Pennsylvania and/or Nebraska).

The fact that Congressional Republicans have stepped so publicly out of line, questioned the President's judgment with regard to defending the nation, and insisted that they have a serious and important role to play in exercising oversight concerning national security matters, is actually the most encouraging sign yet of the real possibility that there will be serious consequences for George Bush's decision to deliberately violate the law. We want to do what we can to help that process along.

Why is Congress interfering with the President's wartime decisions?

I learned more, by far, about the port controversy and accompanying political implications from reading the discussion in my Comments section last night than I did reading all of the newspapers and watching all of the television news reports combined. Following up on that discussion, I have a few observations which I think are worth making:

(1) It is really quite astounding to watch Congressional Republicans fall all over themselves advocating legislation, on the grounds of national security, to force the President to reverse his decision about who is going to operate our ports. Many of these same Republicans have been defending Bush’s violations of FISA on the ground that Congress lacks constitutional authority to restrict or regulate the President’s Article II power to act unilaterally with regard to matters
of national security.

As Atrios quite amusingly (but quite insightfully) pointed out in his post entitled "A Brief Reminder":

Bush does, of course, have inherent authority under Article II to make all decisions relating to national security.

According to the Bush Administration's Yoo theory of Executive power, which these Congressional Republicans have been pitifully invoking to argue for their own powerlessness as a means of justifying the President’s flagrant violations of the law, neither Congress nor the courts "can place any limits on the President's determinations" regarding protection of the nation against terrorism because "these decisions, under our Constitution, are for the President alone to make."

Based on this theory, Pat Roberts just recently announced that FISA is unconstitutional because it impermissibly impinges on the President’s "inherent authority" to make decisions about how the nation ought to be defended without interference from the courts or Congress. Based on that reasoning, how can Congress possibly interfere with the President’s decisions concerning how our nation’s ports will be defended from terrorist threats?

The President has a war to fight. Under Article II, decisions about how to defend our nation are his alone to make. What right does Congress have to stick its nose into decisions by the Commander-in-Chief about who ought to safeguard our ports and how our country should be protected? If it wants, Congress can simply stop funding these programs. But they have no right to dicatate to the President how he should defend our nation in a time of war.

(2) Every time Bush speaks about terrorism, his contempt for the notion that Congress has any meaningful role to play in national security is palpable. Bluememe yesterday insightfully observed that the language Bush used when asked about this issue glaringly reveals this contempt:

Bush took the rare step of calling reporters to his conference room on Air Force One after returning from a speech in Colorado. He also stopped to talk before television cameras after he returned to the White House."I can understand why some in Congress have raised questions about whether or not our country will be less secure as a result of this transaction," the president said. "But they need to know that our government has looked at this issue and looked at it carefully."

Got that? There's Congress on the one hand. And what Bush considers "our Government" on the other. And never the twain shall meet.

Bush has been speaking in these condescending, dismissive tones to and about Congress ever since he was elected. For whatever reasons (2006 elections, a weakened and unpopular President), the highly principled Republicans in Congress appear to have suddenly decided that they won’t accept their assigned role as submissive rubber-stamps for the White House's national security decrees. But haven't they already staked out the position that they have no role to play when it comes to defending the nation against terrorism?

(3) The substance of this controversy to the side, it is quite clear this is going to be a politically harmful episode for Bush personally, if not for Congressional Republicans as a whole. It seems highly unlikely that Congressional Republicans will hand Democrats a tougher-on-terrorism platform in the middle of an election year. That means that either Bush will have to back down from his veto threat and do a Miers-like reversal (a reversal which was unthinkable for the first four years of his Presidency), or stay resolute about effectuating this deal and ensure a public and serious split between him and the Republican Congress.

As several people noted in the Comments section here last night, there is a sweet poetic justice in watching all of this unfold. Having spent the last four years squeezing enormous political benefits out of cynical fear-mongering over Arab terrorists and despicable accusations that his political opponents are aiding and abetting terrorists by opposing his foreign policies, Bush now finds himself crying victimhood over what he is depicting as these very tactics. One reaps what one sows, and all of that.

(4) There is no shortage of speculation about why Bush is so insistent about proceeding with this deal even in the face of the intense political difficulty it is creating. If George Bush has one unbending belief (besides the limitlessness of his own power), it’s his belief in doing business deals, especially those which reward people and entities whom he wants to reward. Cronyism pervades virtually everything this Administration does – from the reconstruction of Iraq to the Kartrina-ravaged Gulf Coast, and, of course, at the very core of the political appointment process in Washington.

With all of the other more glamorous corruption and law-breaking scandals that crop up with dizzying regularity, the pervasive cronyism which undermines and often destroys almost every American foreign and domestic policy is often overlooked. If I were to speculate, I would guess that cronyism connections are (at least partially) what drove this transaction originally and what is driving Bush’s oddly emphatic commitment to it now.

I also think that the same motive which almost certainly influenced the decision to ignore Congressional law and the FISA courts when eavesdropping is at play here -- namely, Bush’s now ingrained belief that he rules over all national security matters unilaterally and with unchallengeable authority. This core belief likely led him to scoff at the idea that anyone was going to tell him what decisions to make about national security. Certainly, no Congress can tell him who is going to operate our ports. That decision is his alone to make.

(5) There was an extremely interesting issue raised in the Comments section to the prior post. The issue was raised by numerous comments including this comment by Hypatia, this one by DClaw1, this one by Heresiarch and, finally, this anonymous comment.

The issue is this: Republicans have spent the last five years cynically exploiting every issue they can find, particularly ones involving national security and terrorism threats, for domestic political gain, and it hardly requires any guessing to know that they will escalate those deceitful efforts heading into the mid-term elections this year. Karl Rove has all but said so.

Operating from the premise that this Administration poses a genuine and profound danger to our constitutional principles and is poised to do long-lasting, perhaps irreparable, damage to our country –- a proposition to which I certainly subscribe -- what limits, if any, ought there to be on efforts and strategies to politically defeat Bush and his followers?

If Democrats have an opportunity to inflict serious political harm on the Administration and its enablers in Congress through a scandal which may not be truly meritorious but can be a potent political weapon (and I’m not saying that's the case for Portgate - I’m simply posing this question hypothetically), ought Democrats do what Bush followers have done for the last 5 years -- namely, use whatever instruments they can to politically harm the Administration, even if there is some cynicism involved in doing so – or ought they maintain higher and more intellectually honest standards and forego political gain if it means cynically exploiting a scandal?

I’m not asking that question to make a point, but am raising it because, as the discussion in Comments reveals, Bush opponents clearly have different views on this matter and it’s worth exploring. Digby posted yesterday about this very dilemma yesterday and said this:

Sometimes I get criticism from my readers for suggesting that the Democrats must play on the same playing field as the Republicans. They say, "we shouldn't become them." But I never suggest that the Democrats should lie, cheat or play dirty as the Republicans do. I suggest that they wise up and stop pretending that Republicans are anything but ruthless adversaries and adjust accordingly. They can be beaten with smart strategies, but not unless the Democrats internalize the connection between the nice men and women they are working with on capitol hill every day with the thugs they hire to get elected. They are all cogs in the same cutthroat political machine.

Should Bush opponents have a "win-at-all-costs" approach whereby they use any and all weapons, or ought they confine their attacks to ones they genuinely and passionately believe are meritorious? I think that’s a real question.

(6) Numerous Bush followers in the blogosphere and elsewhere are joyously citing Republican opposition to Bush’s port deal as proof that Republicans do stand up to Bush, have a mind of their own, and are therefore exonerated of the charge that they have transformed their political movement into a cult of blind loyalty unburdened by political principles. I’ll have more to say as this simplistic drum is beaten ever more loudly, but for now, I will simply note the comment I made here on the day I wrote the authoritarian cult post, the Digby, Atrios and Dave Neiwert about my argument with which I expressed agreement.

Portgate

I haven't paid much attention to the whole UAE port controversy until today, and I have to confess to being guilty of the mortal sin of the blogosphere -- I don't yet know what my view of this is. But since everyone seems eager to discuss it, and I don't want my post highlighting Tom Maguire's bizarre behavior to be overwhelmed by comments about Portgate, it seemed prudent to write a post about it and invite a discussion here, even though I don't really have all that much to say about it.

Here is the source of my ambivalence. What exactly is the principle which the Administration has violated here? Are we supposed to be assuming that anything or anyone connected to the Middle East is more likely to pose a threat of terrorism than those who aren't connected to the Middle East, and thereby avoid anything related to the Middle East when it comes to sensitive contracts? Or is the concern specific to this Middle Eastern country -- that we ought to be assuming that anyone with connections to the UAE poses a greater threat of terrorism than those who don't have such connections? Isn't that the sort of profiling that most people have agreed is improper? These are real questions, not rhetorical ones.

Here is what Ace of Spades says in (sarcastically) explaining his opposition to the Administration's decision to award this contract:

The idea that a large number of Americans would have any suspicions about Arab Muslims controlling ports is just absurd.

Why, it's almost as ridiculous at feeling anxiety about such people taking unauthorized control of airplanes.

Is that really the argument that Bush opponents are embracing now -- that we should be inherently suspicious about "Arab Muslims"?

Sean-Paul Kelley at The Agonist argues that there is no meritorious profiling component to these objections:

A number of people have pointed out that opposition to the UAE-US port management deal has a 'racist' tint to it. Bogus. The problem here is that we are giving a foreign company and country (it's state-owned) control over a vital national security concern. What's worse, is that we're considering giving it to a country/company that has links to non-state actors. The same non-state actors that blew up the WTC, the Pentagon and the Cole.

This is a sovereignty issue, but not in a xenophobic/Lou Dobbs/Michelle Malkin type way. It goes to the heart of our struggle with al Qaeda. The UAE still has ties to al Qaeda-not to mention that is was a focal trans-shipment point for material from the network of AQ Khan in Pakistan. P&O, to the best of my knowledge, has links to neither.

There is no link to Sean-Paul's specific claim that "the UAE still has ties to al Qaeda." Is this really the case, and if so, why haven't we taken action against the UAE in the past? Why hasn't anyone demanded that we do so?

And if this is really "a sovereignty issue," why isn't anyone bothered about the control of our ports by companies controlled by the Chinese government and other countries:

The White House appeared stunned by the uprising, over a transaction that they considered routine — especially since China's biggest state-owned shipper runs major ports in the United States, as do a host of other foreign companies. Mr. Bush's aides defended their decision, saying the company, Dubai Ports World, which is owned by the United Arab Emirates, would have no control over security issues.

And for those of you drooling with anticipation over the potential this issue has for doing some serious political damage, with almost all Republicans lined up with Democrats, who is this really going to hurt? After accusing Bush for several years of engaging in unnecessary violence and excessive aggression against Arab countries and individual terrorist suspects, is the idea now to accuse him of failing to sufficiently appreciate the terrorist threat posed by Arabs, or that he is too considerate of notions of political correctness at the expense of worrying about our security?

I'm open to being convinced one way or the other. I just can't say that I'm that scandalized or excited yet.

Are Bush critics labeled "liberal"?

As most readers here will recall, there were numerous responses -- not all of them friendly -- to the post I wrote a week ago (entitled "Do Bush Followers have a Political Ideology?") regarding the dynamics which motivate Bush followers, and specifically the way in which loyalty to George Bush the Leader takes precedence over allegiance to any recognizable political principles. The following day, I wrote a reply to the bloggers who responded critically to that post.

Since that time, replies to my original argument have continued to be posted, including from Ramesh Ponnuru at The Corner, James Taranto at Opinion Journal, and the former Religious Right-activist-turned-ostensible-Democrat Bull Moose. I haven't replied to any of those posts because none of them said anything particularly new that wasn't already subsumed by the other posts to which I did reply. And, none of them was actually willing to opine on whether they believed the dynamic I described was pervasive or even extant, opting instead to nitpick at the margins without venturing an opinion about the argument itself. As a result, there was little to reply to.

But an odd and somewhat alarming development is now prompting me to address a couple of these arguments. The generally well-behaved adult Tom Maguire has spent the last several days frantically jumping up and down, throwing food and crying out for attention -- both on his blog and via e-mail to me -- because he seems to think he has a really impressive reply to my post which I have ignored. For each of the last three days, he has written a series of increasingly childish, amazingly shrill, and attention-demanding rants which purport to reply both to my original post and to a post written about my argument by Peter Daou.

I intended to ignore Tom's antics, but the "argument" he keeps repeating was the same one made in a marginally more constructive way by Ponnuru, Taranto and others. That, combined with the fact that I have been sent multiple links which thoroughly negate the argument, led me to conclude that it would be worthwhile to reply.

To the extent that an argument can be discerned, Tom is claiming (as did Taranto) that the examples I cited of conservatives being labeled "liberal" as a result of anti-Bush blasphemy -- I cited John McCain, Chuck Hagel, George Voinovich, John Sununu, Bob Barr, and Andrew Sullivan -- are, for one reason or another, not really compelling examples of that trend. Tom, as well as Taranto, exhibit a good amount of intellectual cowardice by purposely refusing to say whether they actually dispute the existence of this phenomenon or whether they simply think that I provided insufficiently clear examples of it. But they claim that the examples I provided were poor and that the links I included for these examples did not support the overall claim.

Based on this premise, Tom has issued what he boldly calls his "challenge" -- the "challenge" that he's been claiming I (along with Daou) have been evading. It's this:

OS - if Messrs. Greenwald and Daou, or their supporters, could find real evidence of Cult leaders actually re-labeling Bush critics as "liberal", that would advance this seminal effort and deepen our understanding of this important work.

Let’s see how intellectually honest Maguire and Taranto are. Following are a series of very clear examples of Bush critics having their conservative credentials revoked and/or being branded a "liberal" because they criticize or dissent from The Commander-in-Chief -- a dynamic the existence of which Maguire, Taranto and (implicitly) Ponnuru all denied as their only response to my argument:

Rush Limbaugh - November 11, 2005:

It's one thing to have a sizable minority like the Democrats stand in your way, but it is just unacceptable when a tiny, tiny, tiny fraction of Republicans in Congress also rear up in opposition and join the liberal Democrats to derail an agenda. At some point that has to be faced. It has to be faced because these RINOs, these moderates, are undermining our agenda on taxes; they are undermining our agenda on spending; they are undermining our agenda on oil drilling, and they are undermining the war on terror -- and I'll give you some names. You want some names? Here they are: Olympia Snowe, John McCain, George Voinovich, Mike Castle, Christopher Shays, and about 30 to 35 others.

I don't care if they're Republican liberals or Democrat liberals, they're still liberals. They're not "moderates." Don't hit me with that. There's no such thing as a moderate. A moderate is just a liberal disguise, and they are doing everything they can to derail the conservative agenda, and they've been frustrated, they haven't been able to do anything about it because conservatism has been so strong. This propaganda attack on the president has weakened him.

Does that count? Here is Rush Limbaugh calling McCain, Voinovich and Snowe -- along with anyone else who opposes the President - "liberals." Why? Because their "attack on the president has weakened him."

Article from The Washington Post, July 1, 2005

A consultant who monitored news and talk programs on public radio and TV found that liberal and anti-administration views were widespread, but critics said the consultant's work was itself biased and riddled with errors.

The consultant, Frederick W. Mann, was secretly hired last year by Kenneth Y. Tomlinson, chairman of the Corporation for Public Broadcasting, the agency that disburses about $400 million in federal tax funds to public broadcasters. In recent months, Tomlinson has criticized National Public Radio and the Public Broadcasting Service for an allegedly liberal bias and has pushed PBS to add programs with a more conservative tone. . . .

[Sen. Byron] Dorgan pointed out that "red-blooded" conservatives such as Sen. Chuck Hagel (R-Neb.) and former congressman Bob Barr (R-Ga.) were classified as "liberal" and "anti-administration" apparently for briefly expressing views that differed from administration policy.

Does that count? Here is a consultant hired by the Bush appointee Tomlinson calling Sen. Hagel and Bob Barr "liberals." Why? Because they "express(ed) views that differed from administration policy" (h/t Steve Benen at The Carpetbagger Report).

Newsbusters, February 6, 2006

Citing liberal Republican Senator Arlen Specter as his authority on whether President Bush's actions were “illegal,” and with “Invoking the 'I' Word” on screen beneath a picture of Bush, MSNBC's Keith Olbermann opened his Monday night Countdown program.

Does that count? According to Newsbusters, it's an example of outrageous left-wing media bias to even talk about the criticisms of the President made by Sen. Arlen Specter because Specter -- who just ensured the lifetime confirmation to the Supreme Court of John Roberts and Sam Alito -- is just a "liberal."

Conservative blogger "Rousseau" - November 1, 2005

Andrew Sullivan is a liberal. I would like to make it clear that anyone who could say that above quote will always be on the liberal side, and frankly most Democratic politicians couldn’t afford to say anything that questioning of the war and its current director.

Does that count? "Andrew Sullivan is a liberal." Why? Because he said something "that questioning of the war and its current director," the Commander-in-Chief.

John Podhoretz, February 12, 2006

And accusing me of being either a liberal or in a liberal bubble or being manipulated by the liberal media for saying that it's a big deal when the vice president shoots somebody isn't a rational response to what I've said about the Vice President's hunting accident.

Does that count? John Podhoretz -- John Podhoretz -- is called a "liberal" by National Review readers because he criticized Dick Cheney's handling of the hunting incident.

Beginning with Tom Maguire, will the individuals who denied the existence of this phenomenon – or who hid behind the inane tactic of claiming that the examples I provided were inconclusive - now acknowledge that this cultish practice of excommunicating people from the conservative cause for criticizing or dissenting from the Leader is pervasive and quite common, not to mention creepy and disturbing?

Since these posts were written, Digby posted an analysis of exactly the manner in which Republicans have sacrificed ideological principle for power, accompanied by a prediction (already coming true) that, as Bush becomes more unpopular and his Presidency is recognized more and more as a failure, "conservatives" will disclaim him altogether as one of their own on the grounds that he was the antithesis of real conservatism (a point also made, in a slightly different form, both by Dave Neiwert and Atrios). As Digby explained:

But, of course, the modern Republican party is not conservative by any definition of conservatism. I'm not even sure it's ideological at all, but to the extent it is, it's radical. Yet the allegedly conservative party has enthusiastically supported a president who believes that you can wage wars, lower taxes and expand government all at the same time. That's not just radical, it's magical. And they can hardly raise their heads even today to oppose an administration that is radically expanding the police powers of the federal government.

And, as I noted in my reply post -- and as Maguire, Ponnuru, and Taranto all ignored (because, really, what can be said about it?) -- no less a conservative shining light than Bill Kristol has acknowledged the shameful fact that Bush became the "movement and the cause" for conservatives. Isn't it a little bit difficult to dismiss an argument about Bush as the by-product of leftist deranged hatred when Kristol himself is making the same argument? (I pointed this out to Maguire in an e-mail reply, and ennumerated five independent substantive arguments in support of my position which he pretended did not exist, only for him to post twice more in which he cheaply mocked my position without so much as acknowledging those arguments in support of it).

Anyone who pays even minimal attention is aware of multiple examples of solid conservatives being labeled "liberal" because they criticize George Bush -- which is exactly why those pretending to reply to my argument never actually denied or addressed the central argument, opting instead to hide behind the cheap tactic of quibbling with excerpted phrases in order to cast the appearance of replying. But since they contested the examples I provided and asked for more, I wanted to oblige. I look forward to their responses.

Are there American political values that transcend ideology?

The British historian David Irving was sentenced yesterday by an Austrian criminal court to three years in prison for violations of an Austrian law which criminally punishes "whoever denies, grossly plays down, approves or tries to excuse the National Socialist genocide or other National Socialist crimes against humanity in a print publication, in broadcast or other media." In sum, Irving was convicted and imprisoned for expressing ideas which the Austrian Government has banned.

Every American blogger whom I found discussing this issue – from the left wing to the Far Right and everything in between – was in complete agreement regarding this event. They all unambiguously expressed the opinion that while those who deny or downplay the Holocaust are deplorable, nobody should be imprisoned or prosecuted by the State for expressing an idea, no matter how repugnant the idea might be. That sort of trans-ideological consensus is almost unheard of these days with regard to any issue, and it raises what I think are several extremely interesting and important points.

I have argued many times that a recognition of the dangers of the Bush Administration’s theories of lawlessness and its law-breaking behavior -- both as part of the NSA scandal and beyond -- is not based upon liberal or conservative political beliefs but, instead, is compelled by the most fundamental and defining American principles of government. That is not some "framing" ploy or effort to "triangulate" a partisan political controversy by elevating it above petty partisan disputes. Rather, objections to the Administration's theories of power are grounded in non-ideological premises because what is so offensive about the Administration’s conduct and theories of power is not that they are liberal or conservative -- they are manifestly neither. Instead, both the Administration's law-breaking and its justifications for that law-breaking constitute a profound assault on the core principles of government on which our country was founded and which has governed the country since its inception.

That is the reason – the only possible explanation – why people across the usually impenetrable ideological divide have expressed such strong objections to the Administration’s lawless theories and behavior as part of the NSA scandal. And, notably, the arguments which are advanced against the Administration’s conduct are strikingly similar when articulated by the most liberal or the most conservative individual and by everyone in between -- just as the reaction to the David Irving conviction is so similar across ideological lines. That is not a coincidence. There is a compelling reason for that consensus. As I’ve argued before:

Importantly, this [the NSA scandal] is not a case where liberals and conservatives arrive coincidentally at the same place despite beginning from radically different premises -- the way, say, Pat Buchanan’s isolationist theories just coincidentally lead him to the same anti-war views as certain pacifists on the Left.

Here, the basis for opposition to the Administration’s action among liberals, conservatives and everyone in between comes from exactly the same set of principles and beliefs -- namely, that what is at stake in this scandal is whether America will continue to live under the principles of law and the system of government on which our country was founded and which has kept us both strong and free.

It is a difficult idea to express with precision, but I really believe that there exists a core set of political values which Americans have ingrained within them by virtue of growing up in this country, being educated here, and being inculcated with common perceptions of the country’s founding and its history (by "political values" I mean only that the values pertain to principles of government and law, rather than to, say, personal conduct or private morality). And when immigration policies are managed correctly, immigrants arrive here with those values already incubated or with an instinctive openness to them (which is one of the reasons they desire to come here), and they come eventually to embrace these values as well, regardless of political ideology.

To the extent that there is a set of values which can be said to define and distinguish what it means to be "American" -- and I believe there is such a set of values -- it is the core principles that define our political system and to which we all more or less implicitly subscribe. That Americans across the ideological spectrum still maintain a shared set of core political beliefs is what accounts for the consensus reaction to events such as the David Irving conviction, an event which does not even remotely produce a similar consensus in Europe or elsewhere.

The reason for this is clear. One ingrained American political principle is that citizens cannot and must not be punished by the State for expressing ideas and opinions, no matter how reprehensible, repulsive or even dangerous the opinions are. This is not something which most Americans even need to contemplate or debate. It’s ingrained on a visceral, almost instinctive level, such that reading an article which reports on someone’s imprisonment for expressing an idea provokes an immediate, reflexive revulsion. That is what accounts for the fact that reaction to the Irving story among American bloggers of all political stripes was not only so negative, but that the condemnation of Irving's imprisonment was expressed in the same terms, with the same language, and through an appeal to the same ideals.

The Austrian Holocaust denial law is by no means the only free speech restriction in Europe which would be unquestionably unconstitutional, and widely scorned, in the United States. It is not uncommon for individuals and groups in Europe (and Canada) to be criminally punished by the State for expressing all sorts of prohibited ideas. Punishment is meted out for ideas that are deemed by the state to be anti-gay, anti-Muslim, racist, or just generally "hateful" or "discriminatory." And the punishment under these European and Candaian laws is not triggered by some threatening behavior or act of physical provocation; it is imposed exclusively for the expression of ideas which the State has decided ought to be criminally prohibited.

I know from debating these issues that there are handfuls of people on the Far Left who will defend free speech restrictions of this sort on the ground that the right of people to be free from feelings of "intimidation" or "discomfort" outweighs the rights and virtues of free expression. And there are people on the Far Right who favor their own pet restrictions on free expression, whether it be prosecuting people for burning flags or prohibiting the expression of ideas they claim are "pornographic" or "obscene."

But outside of these fringes and aberrational viewpoints, the notion that the Government can define a set of ideas which is criminally prohibited, and which can serve as a basis for criminal prosecution, is sharply distasteful and even infuriating to most Americans. Reading about a Government somewhere punishing people for their ideas simply violates core American beliefs about the proper role of government and what is or is not a legitimate exercise of state power.

It is this same set of core political values on which opposition to George Bush's violations of the law is predicated, and that is what leads me to believe, vehemently, that Americans can be made to understand and appreciate the real danger and threat of the Administration’s behavior. Just as imprisoning people for their ideas is repellant to most Americans, it is (at least) equally repellent to these core values to hear the President claim that he has the power to break the law, that he can employ war powers against American citizens on U.S. soil even in the face of Congressional statutes making it a crime to exercise those powers, and that neither the Congress nor the courts can do anything to limit or restrict the President's conduct.

The set of precepts composing core American political values is clear and uncontroversial to most. We are a nation that lives under the rule of law. No man is above the law, including the President. Presidents do not have the right to engage in conduct which Congress makes it a criminal offense to engage in. To avoid the President seizing the powers of a King, the powers he exercises must always be checked and balanced by the Congress and the courts. In order to ensure that we have a representative government, only the people, through their Congress, make the laws, and everyone, including the President, is required to abide by those laws. We are a nation that is ruled by the people -- our elected officials do not rule over us -- and when we enact restrictions through our Congress on what our Government can do to us as citizens (as we did with FISA), those laws bind all citizens, including our elected officials.

None of those principles is even arguably liberal or conservative in the contemporary, political sense of those words. They are the defining American principles of government which has guided our country since its founding. And the Administration’s radical theory that any matter relating to national security threats "is for the President alone to decide" and that neither Congress nor the courts "can place any limits on the President's determinations" – which even bestows on the President the power to ignore Congressional laws or to wield war powers against American citizens on U.S. soil – could not be any more contrary to all of these core principles.

These are the principles that led Americans, in 1978, to enact a law, in response to decades of abuse of eavsdroping powers by Administrations of both parties, which made it a criminal offense for our government to eavesdrop on Americans without judicial oversight and approval. We collectively decided that we want aggressive eavesdropping against our foreign enemies, and the law we enacted enables aggressive eavesdropping. But we also decided that we trust our government to eavesdrop on Americans only with judicial oversight, not in secret and with no oversight. Through our Congress, that was the law we passed, and with that law, we imposed restrictions on the powers which our government could exercise against us.

George Bush concluded that he has the power to ignore that law – or any other law even remotely relating to national security – which he finds burdensome or undesirable. That is the Administration’s expressly stated theory of the President’s power, and it is what led them not only to violate this law, but to engage in the most un-American act possible of detaining U.S. citizens and imprisoning them indefinitely in a military prison without so much as charging them with a crime or allowing them access to a lawyer.

That conduct, and the theories underlying it, are at least as repulsive to core American political values as imprisoning people for expressing prohibited ideas. Very few Democrats have actually tried to make Americans aware of these matters, and to the extent that this case has been made at all, it’s been made most potently by conservatives. But these are the principles which are at stake here, and they are not even remotely ideological ones. None of this is about eavesdropping or FISA or Al Qaeda or libearlism or conservatism. Just as is the case for the David Irving conviction, the entire controversy surrounding the Administration's radical theories of power are about the principles of government on which our country was founded and which most Americans, by definition, instinctively embrace, regardless of political ideology.

A first step

Jane Hamsher just posted some initial thoughts which she and I have discussed concerning how the energy, vibrancy and desire for action which pervades the blogosphere can be translated and channeled into greater influence on actual events, beginning with the NSA scandal. We don't have some grandiose plan to unveil, but instead are attempting to find constructive methods for preliminarily coordinating some concerted action in order to explore what might be worthwhile.

I'll have a lot more to say about this tomorrow, and if you have thoughts or ideas after reading Jane's post, I strongly encourage you to write them here, over at Jane's blog, or by e-mailing them to me. We want to begin -- as a laboratory and to keep things manageable -- by focusing on six states that have particular significance in the NSA universe, primarily because they have important Republican Senators (importance either in terms of their ability to influence the Judiciary and/or Intelligence Committee investigations, the fact that they are wavering or otherwise worthy of being targeted, or because they are susceptible to re-election-based pressure). These are the six states with which we want to begin:

(1) Pennsylvania (Specter & Santorum)
(2) Kansas (Roberts & Brownback)
(3) Maine (Snowe & Collins)
(4) Nebraska (Hagel)
(5) South Carolina (Graham)
(6) Ohio (DeWine)

Recognizing the incomparable importance of events like today's impassioned editorial from the Wichita Eagle, we want to have whatever we do have some local nexus. National mass e-mailing campaigns and the like can have some effect, but far more effective, we think, is some genuine expression of belief from the citizens whom Senators actually represent, particularly in small states. We want whatever we do to have both a national and local component (Senators from large states with a national profile, such as Specter, can be the target of a more nationalized effort), but we'd like to have the effort be strongly localized.

So, if you are in any of those states or otherwise have helpful connections to it (even if it's just knowledge of things such as radio talk shows or newspaper editors or anything else that is helpful), or just if you're interested in participating in some way, please email Jane (JaneHamsher@FireDogLake.com).

I've left this whole discussion deliberately vague because we want to figure out exactly what we want to do and we would like input in figuring it out. At the same time, we want to take our first step or two quickly, because the events over the past few days demonstrate that this scandal is at a crossroad and we want to do what we can to ensure, as a first step, that there are meaningful investigations and hearings.

As I said, I will post a lot more specific substance over the next day or so, but in the meantime, please read Jane's post. And, I just want to add a couple of thoughts to what Jane just said.

I've become a vigorous believer in the notion that the blogosphere is a uniquely potent vehicle for large numbers of people to act in concert in a meaningful way. National political advocacy organizations and party-based entities are, by and large, useless. They have become stagnant, entrenched, obsolete old relics of the political wars of the 1980s and 1990s. Many people who stay in Washington too long lose their ear for anything outside of Washington, and many of them become satisfied with status quo perpetuation, because they are so comfortable with their little niche, even if it's a losing one. The blogosphere has really become the venue for vibrant, novel and impassioned action. I hope to find a way to spend as much time working on these matters as I can because I believe the effect they can have is limitless.

And none of this is predicated on the idea that Senators or other politicians only respond to re-election pressure. Several, if not most, of the above-listed Senators don't have strong re-election worries. But all individuals, including Senators, respond to a whole range of stimuli and are influenced by all sorts of different factors. Pat Roberts may not have re-election concerns, but nobody wants to be depicted as some mindless, malleable stooge who exists as an instrument to help others conceal their wrongdoing or who abdicates their duties in our government. People can be motivated by all sorts of influences ranging from shame and substantive persuasion to institutional power and appeals to what is necessary or healthy for our country.

I believe that, on some level, most people who have thought about these issues are disturbed by the radical theories of power which this Administration is attempting to install and that is why you see so many people, including many Republicans and conservatives, expressing serious opposition to what the Administration has done here even though they have nothing to gain politically or personally from doing so, and may even have much to lose.

Anyone who frequents the blogosphere knows that there is a good deal of agitation to do something to ensure that what we do here transcends the confines of mere interesting chatter and that we all find ways to have it have some effect on what actually happens. Most people agree on that. The challenge is to develop the approach that can achieve that. By starting to try different things, the idea is to start developing, through trial and error, an idea of how that can best be done.

The dying scandal that keeps growing

Ever since the NSA scandal began, Bush followers, led by Karl Rove, and even some frightened Democrats, have loudly insisted that this scandal is actually beneficial for Republicans, because they can use it to depict Democrats as weak on national security. Democrats want to hang up when Osama calls, while Bush is being aggressive in protecting our children from being blown up. As a result, they claimed, Republicans want this scandal to last as long as possible because it will only benefit Republicans politically and damage Democrats by highlighting their vulnerabilities.

While spouting that bravado, the Administration's actions reveal that they fear this scandal and want more than anything for it to disappear. At every turn, they have tried to prevent a meaningful investigation into the legality of their actions. If the NSA scandal is really the political weapon which the GOP can use to bash Democrats as being weak on national security, wouldn't the White House be doing the opposite - that is, encouraging every hearing and investigation possible?

The supplemental claim we hear most from the Administration is that this scandal is dying. It will all fade away with some nice legislation designed to render legal the President's four years of deliberate law-breaking. But the NSA scandal continues to dominate the news. Every day brings more conflicts, more disputes, more internecine fighting among Republicans. Indeed, Republicans are all fighting with each other on virtually every aspect of this scandal - when have we ever seen that?

Just review media reports on this scandal over the last 24 hours alone. Does this sound like an Administration that welcomes this scandal as something that is politically beneficial? Does this sound like a scandal that is dying:

From The Washington Post, today, reporting on the White House's frenzied, desperate efforts to quash Congressional investigations into its conduct:

At two key moments in recent days, White House officials contacted congressional leaders just ahead of intelligence committee meetings that could have stirred demands for a deeper review of the administration's warrantless-surveillance program, according to House and Senate sources.

In both cases, the administration was spared the outcome it most feared, and it won praise in some circles for showing more openness to congressional oversight.

But the actions have angered some lawmakers who think the administration's purported concessions mean little. Some Republicans said that the White House came closer to suffering a big setback than is widely known, and that President Bush must be more forthcoming about the eavesdropping program to retain Congress's good will.

And The New York Times, this morning, reports that the White House was groping around, offering any concessions that were demanded, in order to avoid the very investigation which Karl Rove and some inane, frightened Democrats insist would be so good for Republicans:

But two days before Mr. Bush spoke, the White House opened the door to talks in the hope of avoiding a full-scale Congressional investigation. According to lawmakers involved in the discussions, a number of senior officials, including Harriet E. Miers, the White House counsel, and Andrew H. Card Jr., the chief of staff, began contacting members of the Senate to determine what it would take to derail the investigation.

And, as the Post article details, the Republicans on the Senate Intelligence Committee who were depicted as having fallen passively into line apparently don't appreciate those reports and are eager to demonstrate otherwise:

Snowe earlier had expressed concerns about the program's legality and civil liberties safeguards, but Card was adamant about restricting congressional oversight and control, said the sources, who spoke on the condition of anonymity, citing office policies. Snowe seemed taken aback by Card's intransigence, and the call amounted to "a net step backward" for the White House, said a source outside Snowe's office.

Snowe contacted fellow committee Republican Chuck Hagel (Neb.), who also had voiced concerns about the program. They arranged a three-way phone conversation with Chairman Pat Roberts (R-Kan.).

Until then, Roberts apparently thought he had the votes to defeat Rockefeller's motion in the committee, which Republicans control nine to seven, the sources said. But Snowe and Hagel told the chairman that if he called up the motion, they would support it, assuring its passage, the sources said. . . . .

Hagel and Snowe declined interview requests after the meeting, but sources close to them say they bridle at suggestions that they buckled under administration heat. The White House must engage "in good-faith negotiations" with Congress, Snowe said in a statement.

Over the weekend, both Specter and even Pat Roberts made clear that they would not accept the only solution which the White House will even consider -- namely, the absurdly deferential DeWine proposal to exempt the NSA program from the requirements of FISA. Now, Linsdey Graham, too, has made unequivocally clear that he will insist upon judicial oversight for any future eavesdropping, something the White House cannot and will not ever agree to:

The latest Republican to join the growing chorus of those seeking oversight is Senator Lindsey Graham of South Carolina.

In an interview on "Fox News Sunday," Mr. Graham, a former military prosecutor whose opinion on national security commands respect in the Senate, said he believed there was now a "bipartisan consensus" to have broader Congressional and judicial review of the program.

"I do believe we can provide oversight in a meaningful way without compromising the program," he said, "and I am adamant that the courts have some role when it comes to warrants. If you're going to follow an American citizen around for an extended period of time believing they're collaborating with the enemy, at some point in time, you need to get some judicial review, because mistakes can be made."

Discussions like this are, of course, somewhat surreal, since we already have a law requiring judicial review for eavesdropping on Americans. That happens to be the law which the Administration broke continuously and deliberately. Why Graham or anyone else thinks it would be productive to pass another law requiring judicial approval when we already have that law in place is a bit of a mystery. But if the likes of Specter, Roberts and Graham are insisting on judicial oversight for eavesdropping -- and the White House is refusing -- there is clearly a serious problem even among Republicans. From the Times:

Four other leading Senate Republicans, including the heads of three committees — Judiciary, Homeland Security and Intelligence — have said they would prefer some degree of judicial oversight. Their positions, if they hold, could make the negotiations more difficult.

As I noted last week, Roberts blocked a vote on whether to have hearings in the Senate Intelligence Committee for only one reason - because the motion by Sen. Rockefeller to hold such hearings would have passed, with means it had at least some Republican support. As I also noted, and as the Times reports today, Roberts, by preventing an up-or-down vote, succeeded in blocking the hearings only temporarily:

The Senate Intelligence Committee has given the administration two weeks to negotiate. If the White House does not demonstrate a good-faith effort, members say, the Democratic proposal for a full-scale inquiry will be back on the table at the panel's next meeting on March 7.

Meanwhile, Specter's interesting legislative proposal -- to require a ruling by the FISA court on the legality of the Administration's actions -- continues to be pushed by him. Again, from the Times:

Senator Arlen Specter, Republican of Pennsylvania, has drafted legislation that would require the FISA court to review the constitutionality of the eavesdropping program. Mr. Specter says he is sympathetic to the administration's concern that briefing lawmakers could lead to leaks, which is why he wants to turn the matter over to the courts.

But he insists that the eavesdropping must be subjected to a rigorous constitutional review and has said that anything short of that would be "window dressing."

I continue to believe that the most potent fuel for this fire is for the Congress to continue to be shown the great contempt with which they have been treated by the Administration over the last four years on these issues. Congress thought it had a law in place regulating eavesdropping on Americans only for the Administration to have decided that the silly little Congress has no role to play in national security and surely can't restrict anything the President decides to do. Worse, they repeatedly misled the Congress into thinking that their cute little laws mattered, and didn't even bother to tell them that the Administration had decided that it had the power to do whatever the President decided, even if that meant engaging in actions which Congress had criminalized.

And now, they are treating the Congress like irrelevant, impotent symbols, instructing them that they are entitled to no information about the eavesdropping program, that they have no power to regulate eavesdropping in the future, and that they are not to investigate any of these matters.

At some point, even the most obsequious members of Congress are going to be moved by their own personal dignity into taking a real stand. Speaking of which, the Pat Roberts-loving Wichita Eagle editorialized yesterday as follows:

Many Kansans, including members of The Eagle editorial board, have long admired Sen. Pat Roberts for his plainspokenness and reputation for fair brokering of issues.

So it's troubling that Roberts, chairman of the Senate Intelligence Committee, is fast gaining the reputation in Washington, D.C., as a reliable partisan apologist for the Bush administration on intelligence and security controversies.

We hope that's not true. But Roberts' credibility is on the line. . . .

This week, Roberts sidetracked a Senate Intelligence Committee inquiry into the possibly illegal National Security Agency wiretap program, saying the White House had agreed to brief lawmakers more regularly and to work with him on a behind-the-scenes "fix" of the Foreign Intelligence Surveillance Act.

That prompted a scathing New York Times editorial Friday headlined "Doing the President's Dirty Work," which opined: "Is there any aspect of President Bush's miserable record on intelligence that Senator Pat Roberts, chairman of the Senate Intelligence Committee, is not willing to excuse and help to cover up?" . . .

But whether the law needs a "fix" is far from certain. Roberts' deal could thwart Congress' duty to learn more about and evaluate this program, while securing from the White House only a vague pledge to talk about fixing the law down the road. . . .

What's bothering many, though, is that Roberts seems prepared to write the Bush team a series of blank checks to conduct the war on terror, even to the point of ignoring policy mistakes and possible violations of law.

That's not oversight -- it's looking the other way.

There sure is a lot of public infighting in the previously dissent-free Republican family over this scandal, and that infighting only seems to be getting worse. And Pat Roberts can't appreciate reading in his hometown paper that he is an integrity-free, blind servant for the Administration, there to do its dirty work and help Congress abdicate its oversight responsibility. Clearly, Olympia Snowe and Chuck Hagel don't seem to appreciate being depicted as manipulated, controlled White House stooges either. It's human nature to want to demonstrate one's independence.

There is no way for the White House to prevent a full-scale airing of these issues. The more they try, the more they alienate their own allies and the worse it becomes.

What is missing from this whole equation is any real effort on the part of Democrats to push all of this forward. Imagine where things would be -- how bad things would be for the White House -- if Democrats hadn't decided early on that this is an issue they should run away and hide from, rather than pursue with relentless aggression. Anyone who speaks with even the most liberal advocacy groups, supposedly left-wing pundits, Democratics consultants, etc. will tell you that they all still think this is a scandal which Democrats should just let go. That, of course, is the type of fear-driven, principle-less advice that has led Democrats to three straight defeats.

Clearly, the Administration knows better, and Congressional Republicans do not seem nearly as inclined to give the White House a free pass on breaking the law. Hopefully, Democrats will start to recognize the highly destructive, potentially fatal weapon which has fallen into their lap.

Foreign policy incoherence

I have two posts up at C&L from yesterday. The first post concerns the fact that George Bush's unpopularity spans virtually the entire country; his approval ratings are now above 50% in only 6 states (not including Texas), and in 40 out of 50 states -- 80% of the country -- more people disapprove of his performance as President than approve. One of the most inexcusable, and revealing, media distortions is that Bill Clinton, who had approval ratings in the 60s and left office with sky-high popularity, is depicted as some sort of disliked politician, whereas Bush is still routinely depicted as a beloved and admired figure even though he is, and for quite some time has been, an extremely unpopular President, not just in blue states but in red states as well.

The second post highlights the utter incoherence and inconsistencies in the terrorism and Iraq stump speech which Bush gives over and over and over. He constantly insists, for instance, that we are "at war" and mocks those who disagree, even though his own Attorney General testified last week before the Senate Judiciary Committee that we are not at war. Bush's central claim is that we will achieve "victory" in Iraq because democracy will produce a pro-U.S. government which will help us fight the "war on terror," even though two consecutive democratic elections have handed control of that country over to Shiite theocrats who are close allies with Iran, the country we are told is now our greatest enemy in the war on terror.

And Bush constantly justifies our occupation of Iraq with the assertion that democracies breed U.S. allies and dictatorships breed enemies, even though many of the countries with whom we have the greatest tensions and hostilities -- Iran, Venezuela, and now the Palestinian Authority -- have governments which were democratically elected to one degree or another, while some of our closest and strategically most important allies -- Egypt, Pakistan, Saudi Arabia, and Jordan -- couldn't be less democratic, and democratic elections in those countries would lead to governments which are infinitely more hostile to U.S. interests than the dictatorships which we prop up.

And the President continuously tells us that this war is unlike all others because we have to win not just militarily, but by winning the "hearts and minds" of Muslims. Meanwhile, the President's followers defend and justify the publication of cartoons which could not be more offensive or inflammatory towards Muslims (I agree that the cartoons should be published far and wide, but I don't espouse the contradictory principle that winning the "hearts and minds" of Muslims is our overarching goal); our abusive interrogation and detention practices (which repulse the moral standards of even by our closest Western allies) continue unabated; and we engage in what are perceived to be reckless, civilian-slaughtering military strikes which do nothing but inflame Muslim sentiment against us.

In sum, while the President continuously says that the most important goal in the "war on terror" is to undermine popular support for terrorists by showing Muslims that we have good intentions, virtually everything we do achieves the opposite result. These policies and their justifications are such a muddled, confused, internally inconsistent mess because they are just made up as they go along. They are political justifications, not thought-out strategic plans, and they shift like the wind whenever political expediency demands it.

If, as Bush claims, the metrics for determining "victory" are (a) the proliferation of democratically elected, pro-U.S. governments in the Middle East and (b) a positive view of the U.S. on the part of Muslims in the Middle East, can anyone contest that, using these metrics, we are doing everything except "winning"?

NSA legal arguments

It is somewhat common for new people to show up at this blog armed with the Administration's NSA legal defenses and then start demanding that these arguments be addressed. As a result, it is necessary for me to point out periodically that, along with many other people, I spent considerable time in the weeks immediately after the NSA scandal first arose hashing out all of these legal arguments.

I didn't just wake up one day and leap to the conclusion that the Administration broke the law deliberately and that there are no reasonable arguments to defend that law-breaking (as many Bush followers leaped to the conclusion that he did nothing wrong and then began their hunt to find rationale or advocates to support this conclusion). I arrived at the conclusion that Bush clearly broke the law only by spending enormous amounts of time researching these issues and reading and responding to the defenses from the Administration's apologists.

I say all of this because now and then the accusation arises that I write from the perspective that Bush broke the law with his warrantless eavesdropping without setting forth the rationale for that view. I can't write a new legal brief every time someone new shows up who decides they want to recite the Administration's legal defenses. At some point, I have addressed each of these legal arguments (usually multiple times), as have many other people. If someone really thinks there are arguments I have not addressed, I'm happy to debate them, but I'd request first that you review the following posts I've written (or posts written by others to which I've cited) on each legal issue relating to the NSA scandal:

The statutory arguments are addressed here, here, and here.

The AUMF argument are addressed here, here, and here.

The inherent authority/Article II argument is addressed here, here, here, here, here and here.

The various FISA-deficiency-based defenses are addressed here, here, here, here, here, here, and here.

Replies to and critiques of the Administration's defenses are here, here, here, here, here, and here.

The 4th Amendment argument is addressed here and here.

The "harm to national security" claim is addressed here, here, here, and here.

In addition, see: Eriposte at The Left Coaster, who has compiled many of the NSA arguments made against the Administration's position in the blogosphere (including many made on this blog) here, as well as the legal brief of 14 professors and former government lawyers as to why the Administration's legal arguments are frivolous, here.

Ultimately, though, the entire legal debate in the NSA scandal comes down to these few, very clear and straightforward facts: Congress passed a law in 1978 making it a criminal offense to eavesdrop on Americans without judicial oversight. Nobody of any significance ever claimed that that law was unconstitutional. The Administration not only never claimed it was unconstitutional, but Bush expressly asked for changes to the law in the aftermath of 9/11, thereafter praised the law, and misled Congress and the American people into believing that they were complying with the law. In reality, the Administration was secretly breaking the law, and then pleaded with The New York Times not to reveal this. Once caught, the Administration claimed it has the right to break the law and will continue to do so.

That's where we are in this country -- with an Administration expressly claiming it has the power to engage in actions which the American people, through their Congress, expressly made it a criminal offense to engage in.

Debates in the blogosphere and in comment sections

Many blogs have "comments policies" and most bloggers have their own practices for when, if ever, they are willing to respond to other bloggers who disagree with posts they write. I have never promulgated any sort of "comments policy" or even talked about these issues because I try to avoid these sorts of self-referential meta-blog discussions. But sometimes they are unavoidable, and since several comment threads here have recently encompassed these issues, it seems constructive to say a few words about these matters.

I am a vigorous believer in the virtues of debate and the clash of opposing ideas. As enthusiastic a proponent as I have become of the unique value of the blogosphere, its one glaring deficiency is that many (perhaps most) bloggers (much more so on the Right, but not uncommonly on the Left) avoid interaction with any individuals or ideas which dissent from their own views, preferring to preach to choirs and/or "arguing" for their view in a harmonious, dissent-free echo chamber. For this reason, many bloggers don't even allow comments, won't respond to anyone's critiques of their opinions unless forced into it, or, most pitifully of all, allow only those comments in agreement with their views while cowardly and immediately deleting all comments which disagree.

I honestly think that this blog has some of the most substantive and high-level comment discussions anywhere. And a big part of why this is so is because there are lots of commenters here who disagree, often vehemently, with my views and with the views of many other commenters here, and they articulate their disagreements substantively and intelligently, which prompts more thinking and more debate. Virtually every comment section here contains commenters arguing why my post is wrong or why the views of regular commenters here are misguided. I'm glad that's the case and hope it stays that way. I think that knowing that your views will be subject to disagreement makes one more diligent about advancing only meritorious and intellectually honest views.

At the same time, there are individuals who come here (and everywhere else) with no intent other than to disrupt or to vent their own frustrations and emotions and who, therefore, aren't interested in (or capable of) meaningful debate. They just engage in conclusory assertions or cliched name-calling (we're "leftist Bush-haters with Bush Derangement Syndrome," etc.) and have minds that are as closed as they are boring and uncreative. I don't believe in deleting comments or banning anyone (other than for extreme acts of deliberate disruption, a standard I would apply very permissively). So I leave it to every participant here to decide for themselves which commenters are worth engaging and which ones ought to be ignored.

And I deliberately seek out debate and disagreement with bloggers who have different views than mine because I believe that doing so creates innumerable benefits. It strengthens one's own arguments to subject them to formidable critique; exposing the fallacies and inconsistencies of Bush followers can be beneficial in lots of ways; and I think the blogosphere is healthier, more vibrant and more interesting if people with different ideas are communicating with and debating one another rather than smugly ignoring each other and celebrating their own cleverness without opposition.

The unique value of the blogosphere is that it facilitates debate and disagreement so potently. Every argument is preserved; every fact can be easily checked and verified; and accountability can be compelled. In general, my view is that the more substantive debate and direct disagreement there is, the better.

Posting today

I will be posting at Crooks & Liars today and will post the links here when those posts are available. Until then, here are a couple of quick items of note:

(1) This article by Sheryl Gay Stolberg in today's New York Times details what appears to be, at least for the moment, substantive conflict between the White House and its normally reliable Congressional servant Pat Roberts. According to Stolberg, Roberts opposes the DeWine proposal to simply exempt the whole warrantless NSA program from the requirements of FISA (what David Shaughnessy refers to as the "Nixon law," predicated, as it is, on the noxious premise that the law should always conform to the President's conduct so as to render legal whatever it is that he does).

One of the brilliant insights of the Founders was their recognition that human begins think and act tribally, almost on an inextinguishably instinctive level. For that reason, institutional pride and personal dignity will eventually come to outweigh ideology or partisan allegiance, such that judges will fight for judicial power, those in Congress will fight for Congressional power, and the President will fight for Executive power. This self-interested, tripartite struggle will lead to ever-shifting power centers but will always maintain some semblance of a balance of power in our government.

That balance-maintaining system has broken down over the last several years because the 9/11 attacks created a war climate in this country which the Bush Administration deftly and cynically exploited in order to install theories of unchecked Executive power which long pre-dated 9/11. And the fact that the Congress was controlled for most of that time by the President's own party -- and the media was scared into uncritical support for the Protector-President -- created a situation where there was little, if any, resistance to those power-grabbing schemes.

But people can be publicly emasculated and humiliated only for so long. Even the most obsequious mice among us, such as Pat Roberts, at some point want to at least appear to have some minimal amounts of personal autonomy. I don't think that Pat Roberts will ultimately act with any integrity. He won't. But the fact that he's bucking and kicking just a little bit demonstrates, again, that this scandal implicates so many profound and central questions for our political system that it is not something that can be or will be swept neatly under the rug. According to the Times:

The chairman of the Senate Intelligence Committee said Friday that he wanted the Bush administration's domestic eavesdropping program brought under the authority of a special intelligence court, a move President Bush has argued is not necessary. . . .

Mr. Roberts also said he did not believe that exempting the program from the purview of the court created by the Foreign Intelligence Surveillance Act "would be met with much support" on Capitol Hill. Yet that is exactly the approach the Bush administration is pursuing.

"I think it should come before the FISA court, but I don't know how it works," Mr. Roberts said. "You don't want to have a situation where you have capability that doesn't work well with the FISA court, in terms of speed and agility and hot pursuit. So we have to solve that problem."

This is not an easy-to-resolve problem. The White House is not going to accept a framework where all of their eavesdropping activities have to stay within the oversight of the FISA court. After all, they bypassed FISA in the first place precisely because -- for whatever reasons -- they wanted to eavesdrop on Americans with no oversight. And yet, it is difficult to imagine that even this Congress, having caught the Administration eavesdropping in flagrant and defiant violation of their law, will simply give them legal sanction to continue to do so. Arlen Specter and Roberts have now both said they oppose such a measure.

None of this by itself portends an apocalypse for the Administration. But it is another small fire that has broken out. And if even Pat Roberts is starting fires now on this issue, it's hard to imagine more compelling evidence that this scandal is still in the growth process, not in the process of being killed off quietly. And Bush opponents should do what they can to exacerbate these tensions and add fuel to these fires.

(2) I have to give credit where it's due. In response to my post yesterday pointing out the glaring error made by Captain Ed in claiming that FISA was intended to regulate only peacetime surveillance (even though the statute contains an express provision regulating eavesdropping during wartime), the Captain added an update to his post containing a commendably clear admission of error:

UPDATE: Glenn Greenwald rebuts me, and rather effectively at least on the text of FISA. No doubt Congress did intend to stake out territory in wartime surveillance.
However, it's telling that even the Democratic administrations of Carter and Bill Clinton didn't think it applied (Jamie Gorelick argued that international surveillance did not fall under FISA either), and courts have ruled in that direction. But Glenn's right in that Congress clearly intended this to apply to wartime as well.

The bit about how the Carter and Clinton administrations "didn't think it applied" is rather incoherent (I have no idea what that means), and the notion that "courts have ruled in that direction" is simply wrong, but he did acknowledge that the statute, contrary to his original claim, was clearly intended to regulate surveillance on Americans both during peacetime and during war. If more people were willing to simply acknowledge analytical and factual mistakes that way, political dialogue would be much more constructive.

The Long Hard Slog

There are lots of people who appear to be morbidly depressed -- to the point of conceding defeat -- as a result of yesterday’s unilateral obstruction by the incomparable White House shill Sen. Pat Roberts of the long-planned and long-promised investigation into the operational aspects of the NSA program by the Senate Intelligence Committee. That defeatist reaction and the borderline-self-pitying sentiments which accompany it are, for literally countless reasons, completely unwarranted.

First, nobody ever thought that a just resolution of this scandal was dependent upon an investigation by the Senate Intelligence Committee, dominated, as it is, by the mewling, slavish and indescribably dishonest Pat Roberts. The notion that this scandal has come to an end all because Roberts blocked, for the moment, hearings that were to be held by that Committee is nonsensical. Thankfully, this scandal never depended upon the integrity of Pat Roberts, and hearings in front of that Committee were merely one of the many ways to compel a real investigation, but it was hardly the only or even primary way.

Moreover, the Committee did not vote against an investigation. Instead, Roberts merely invoked a procedural device as Chairman to prevent a vote, for now, from taking place. (Incidentally, what happened to the Republican mantra that procedural maneuvers ought not be used to block up-or-down votes? It seems that principle only applies to matters where they know they will prevail on the vote. Here, there were clearly Republican members of the Committee who did not want to go on record – and who may have been unwilling to go on record – voting to oppose an investigation. As a result, no vote was held).

And, one must remember that there are numerous other branches of this scandal which are alive, well, and growing. The investigation of the Senate Judiciary Committee continues, with disputes raging between the Republican Chairman and the Attorney General over the scope of further witnesses testimony and the DoJ’s obligation to disclose documents. The House Intelligence Committee voted yesterday to launch its own investigation and hold its own hearings, and Republicans on that Committee are already feuding with one another over the proper scope of that investigation. And, as I posted about yesterday, the judiciary is now involved in this scandal and is beginning to assert its institutional role in our democracy.

In sum, there are numerous governmental processes underway far beyond the Senate Intelligence Committee which are engaged in serious and potentially fatal investigations of this scandal. And beyond those, what will ultimately determine whether the Bush Administration is held accountable for its law-breaking are two components which neither Dick Cheney nor Pat Roberts can shut down – the investigative work of the press and the opinion of the public.

Some perspective is necessary and critically important here. The NSA scandal has only existed for two months. It arose in an environment where the President’s party controls not only the Executive Branch, but has transformed Congress into a compliant, obedient, impotent tool of the Administration. The Administration has successfully manipulated terrorism fears for quite some time, and the Administration begins with a rhetorical advantage with any measures that ostensibly involve counter-terrorism efforts. And large parts of the media are captive to the Bush world-view and resistant to the premise that the Administration may have been corrupt or acted illegally.

Thus, this scandal was never going to be the downfall of the Administration after a few weeks, and anyone who expected this was operating with wildly unrealistic expectations. It is going to take hard, focused, patient work to bring about a just resolution to this scandal. It is an uphill battle that will have to overcome substantial and formidable efforts on the part of the Administration to block investigations and they will do everything in their considerable power to ensure that they will be immunized from consequences. All of that has to be expected. None of it should come as a surprise.

There is nothing surprising – and nothing even remotely fatal – about the fact that someone like Pat Roberts engaged in slimy maneuvering in order to comply with Dick Cheney’s decree that there be no investigation by that Committee into this scandal. If that little stunt is enough to make people say that the whole thing is over and the Administration won, then it means that we weren’t prepared to fight very hard over this matter.

The reality is that the more the Administration fights to suppress investigations and conceal relevant facts, the more fuel is added to this fire. Every presidential scandal in history has been exacerbated by the cover-up component. Opponents of the Clinton Administration had some of their most compelling political P.R. victories when the Administration invoked precepts of "Executive privilege" in order to block interrogation and to avoid the disclosure of documents.

Rather than viewing each obstructionist step by the Administration as some sign of our inevitable defeat and doom, we ought to see it and use it as what it is -- a sign that, contrary to their bravado, the Administration is petrified of this scandal and is doing everything possible to prevent Americans -- through their Congress and the courts -- from discovering the truth.

During the Watergate scandal, the Nixon Administration engaged in all sorts of subterfuge designed to derail the Watergate investigation. The notorious Saturday Night Massacre occurred when the President ordered his Attorney General, Elliot Richardson, to fire the Special Prosecutor investigating the Watergate scandal (Archibald Cox), and when both Richardson and his Deputy refused to fire Cox, Nixon fired them and then found someone next in line at the Justice Department (Robert Bork) who was willing to fire Cox, which Bork then did.

When that happened, Americans who stood opposed to Nixon's law-breaking didn’t throw up their hands and moan that the Watergate investigation was over and concede defeat to the President. If anything, those obstructionist efforts fueled the scandal even more and emboldened Nixon’s opponents to create other ways to ensure that he and his Administration were held accountable for their law-breaking. In fact, public opinion was so inflamed by that obstruction that it was shortly thereafter that articles of impeachment were introduced for the first time.

The Watergate scandal took 2 1/2 years from the time it began until the time Nixon left office because of it in disgrace. The NSA scandal has been with us for 2 months. Watergate resulted in Nixon’s downfall not due to one large smoking gun revelation, nor was it because the country heard about the break-in and then stormed the streets demanding Nixon’s impeachment.

Nixon began that scandal as an immensely popular President - infinitely more popular than the unpopular Bush is now. And when the Watergate scandal began, the mere notion that it could lead to Nixon’s downfall was fantasy. And the scandal unfolded as a slow, grinding process which was the result of tenacious, relentless investigative work and a slow transformation of public opinion. And the Administration fought the investigation every step of the way, doing what they could to obstruct it at every turn.

It is highly instructive to recall the evolution of public opinion with regard to this Mother of all Presidential Law-breaking Scandals:

[I]t is worth remembering that Watergate, as a case against a presidency, was not built in a day, and the decision of most Americans to abandon their support of Nixon was not made overnight.

Shafts of light fell on Nixon's dark side in June 1972, when burglars were caught bugging the Democratic National Committee headquarters in the Watergate hotel-office complex. The few newspeople who went after the story began piecing it together that summer and fall: the program of dirty tricks and the illegal cash financing, the efforts to silence potential witnesses and shield the president.

While the revelations accumulated, the rest of the country tuned out. That November, Nixon carried 49 states in winning re-election. More than two months later, as the first Watergate defendants were going to court in January 1973, Nixon's numbers in the Gallup Poll were among the most robust of his presidency: 68 percent approval to 25 percent disapproval. . . .

Of course, that was before Nixon began talking about invoking executive privilege to prevent White House aides from testifying about an alleged cover-up. When that key phrase, "executive privilege," became part of the discussion, Nixon's numbers started their descent.

In February, the Senate voted 70-0 to empanel an investigating committee of its own. Nixon's approval rating in the first week of April stood at 54 percent in the Gallup Poll. Most Americans were still withholding judgment. Even after the April 30 speech in which Nixon announced the resignation of his closest aides, many Republicans continued to rally around the president.

The Senate Republican leader, Hugh C. Scott of Pennsylvania, said the speech had proved that the president was "determined to see this affair thoroughly cleaned up." The governor of California, Ronald Reagan, said the Watergate bugging had been illegal but that "criminal" was too harsh a term because the convicted burglars were "not criminals at heart."

That same month, Republican state party chairmen meeting in Chicago adopted a resolution blaming "a few overzealous individuals" for Watergate and lending unequivocal support to the president.Vice President Spiro T. Agnew accused the press of using "hearsay" and other tactics that were "a very short jump from McCarthyism." The same comparison was picked up by the man who had succeeded McCarthy in the Senate, Democrat William Proxmire of Wisconsin, who said the media had been "grossly unfair" to Nixon.

By then, however, the bleeding in the Gallup Poll had dropped Nixon to just 48 percent approval in the first week of May -- a drop of 20 percentage points since January. And that rating would keep on falling through the 25 percent level before Nixon's resignation in August 1974.

The Bush Administration isn’t going to just roll over at the first whiff of a scandal. But enormous strides have been made in public opinion. And there are already multiple Congressional investigations, lawsuits, raging and growing disputes within the President’s own party, and at least some important journalists who have shown a rare journalistic hunger over this story.

And most important of all, there has been no real campaign to convince Americans of what is truly at stake with this scandal. Most Democrats can barely get themselves to utter the fact that the President broke the law, and yet half of all Americans have already reached that conclusion on their own.

There is enormous potential for this scandal to grow, but that will only happen if people who believe that Presidential law-breaking is a serious threat remain resolute about making it grow and believe that they can contribute to its growth. Dick Cheney lobbied so hard to prevent the Intelligence Committee from investigating precisely because they want to create the appearance that this scandal is dying. That will happen only if people allow it to die, only if Bush opponents internalize the notion that they will inevitably lose because everything is against them and there is no way to change that.

Erasing the Cold War from history

In response to yesterday's impassioned George Will column attacking the "monarchical" powers claimed by George Bush, Bush supporter Captain Ed wrote a post in which he first pointed out that Will (of course) is no conservative, and then purported to respond to Will’s argument as follows:

This [Will's argument that FISA "was written to regulate wartime surveillance"] is patently untrue. FISA came into being to regulate peacetime surveillance by the federal government, as an antidote to Nixonian abuses of power that had nothing to do with the conduct of war (emphasis in original).

Initially, one must note that Captain Ed’s claim that "FISA came into being to regulate peacetime surveillance" -- a claim pervasive among Bush followers -- is just factually wrong. Indeed, it is so transparently wrong, and in such an obvious way, that it genuinely amazes that two months into the NSA scandal, someone like him, who pontificates on such matters on a daily basis, is so uninformed about the very law at the center of this scandal.

Section 1811 of FISA happens to be entitled "Authorization during time of war," and it expressly does what Captain Ed and so many other Bush followers falsely claim it does not do – namely, regulate eavesdropping during times of war:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

How can someone argue -- as so many Bush followers do -- that FISA was intended to regulate only peacetime surveillance when there is a clause in that law expressly regulating surveillance during times of war? On its face, FISA is a law that governs how the Executive can eavesdrop on Americans both in times of peace and in times of war.

Moreover, contrary to the notion that we were concerned about unchecked eavesdropping on Americans only during peacetime, it is worth pointing out that there was a war during the Nixon Administration. It was called the Vietnam War. Many of the documented eavesdropping abuses which led to FISA occurred during this war. As a country, we enacted FISA precisely because we wanted to make it a criminal offense for the Federal Government to eavsedrop on Americans without judicial oversight -- whether during peacetime or war. The law could not be any clearer about that. To claim that FISA grew out of concerns about eavesdropping abuses only during peacetime is inarguably false.

But beyond these self-evident factual errors in Captain Ed’s argument is a more fundamental and pervasive falsehood which is being peddled with increasing frequency to justify the Administration’s law-breaking. It is the notion that restraints on the Executive Branch generally, such as those mandated by FISA or ones prohibiting the incarceration of Americans without due process, are now obsolete because they were the by-product of some sort of peaceful, enemy-less, utopian era which no longer exists.

This world-view is staggering in its revisionism. FISA was enacted in 1978. I did not think there were many people, if there were any at all, who actually believe that 1978 was a time of "peace." Most people -- and I would have thought this was true particularly for "conservatives" -- tend to see that period as the height of a war which we call the "Cold War," where we faced an "Evil Empire" trying to achieve world domination in order to impose its tyrannical ideology. In fact, we spent the entire decade after the enactment of FISA engaged in a massive build-up of our military forces, and we even tried to find a way to build a space-based shield around our country in order to repel incoming missiles. Accordingly, how can it possibly be argued that Americans banned our Government from eavesdropping on us in secret only during times of peace?

Here is what Presidential candidate Ronald Reagan said on March 31, 1976, a mere two years before the enactment of FISA:

But there is one problem which must be solved or everything else is meaningless. I am speaking of the problem of our national security. Our nation is in danger, and the danger grows greater with each passing day. Like an echo from the past, the voice of Winston Churchill’s grandson was heard recently in Britain’s House of Commons warning that the spread of totalitarianism threatens the world once again and the democracies are wandering without aim.

And here is what President Reagan told the nation on March 23, 1983, when first announcing his "Star Wars" program:

The budget request that is now before the Congress has been trimmed to the limits of safety. Further deep cuts cannot be made without seriously endangering the security of the Nation. . . .

For 20 years the Soviet Union has been accumulating enormous military might. They didn't stop when their forces exceeded all requirements of a legitimate defensive capability. And they haven't stopped now. During the past decade and a half, the Soviets have built up a massive arsenal of new strategic nuclear weapons -- weapons that can strike directly at the United States. . . .

As the Soviets have increased their military power, they've been emboldened to extend that power. They're spreading their military influence in ways that can directly challenge our vital interests and those of our allies.

Some people may still ask: Would the Soviets ever use their formidable military power? Well, again, can we afford to believe they won't? There is Afghanistan. And in Poland, the Soviets denied the will of the people and in so doing demonstrated to the world how their military power could also be used to intimidate. ...

The Soviet Union is acquiring what can only be considered an offensive military force. They have continued to build far more intercontinental ballistic missiles than they could possible need simply to deter an attack. Their conventional forces are trained and equipped not so much to defend against an attack as they are to permit sudden, surprise offensives of their own.

That does not exactly sound like the harmonious time of peace which Captain Ed and others describe in trying to explain why FISA and similar restraints on executive power were intended to exist only in the time of peace in which they were created. In fact, people like Captain Ed love to regale us with heroic tales of how Ronald Reagan vanquished our enemy and won the war. How odd to hear from these same circles that 1978 was a time of harmonious safety and luxurious peace such that FISA was adopted only because we were not facing a deadly enemy.

This is an oft-overlooked point that is vitally important. The Soviet Union was an infinitely stronger, more formidable, more sophisticated enemy with far vaster resources than Al Qaeda could dream of possessing. And Communists, we were always told, employed their own deadly version of "sleeper cells" by systematically implanting foreign agents and even recruiting American citizens on U.S. soil to work on their behalf, including infiltrating the highest levels of the U.S. Government with their agents and sympathizers.

And yet, in the midst of all of these internal and external threats, the Congress enacted and the President signed into a law a statute permitting eavesdropping for foreign intelligence purposes only with judicial oversight. And more generally, during the four decades during which America fought the "Cold War" -- a war which was always depicted by both parties as posing an existential threat to our country -- no President ever seized, nor did Americans ever bequeath, the power to act contrary to Congressional laws and outside of the parameters of judicial "interference."

The single greatest myth which this Administration has peddled – and which a vocal and frightened minority have ingested – is that we are at some sort of unique place in our history where we face a threat greater and more formidable than any we faced previously, such that the principles which have guided our republic can and should be tossed aside as obsolete relics of a more peaceful and less threatening era. That is exactly what Captain Ed just argued as to why FISA can be disregarded as a quaint relic of the past.

There are numerous, glaring deficiencies in this argument. FISA was first enacted in 1978 but was amended and thereby re-affirmed in the immediate aftermath of 9/11, when the Administration requested changes to the law which Congress then made, causing the President to praise FISA this way on October 27, 2001:

The new law [amending FISA] recognizes the realities and dangers posed by the modern terrorist. It will help us to prosecute terrorist organizations--and also to detect them before they strike. . . .

Surveillance of communications is another essential method of law enforcement. But for along time, we have been working under laws [FISA] written in the era of rotary telephones. Under the new law [which amends FISA], officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists. . . .

After 9/11, in the midst of our war against Islamic terrorism, the President himself argued that FISA is a modern and sufficient tool to enable us to conduct surveillance on the modern terrorist. Shouldn't Bush followers be precluded from claiming that FISA is obsolete and incapable of enabling surveillance of modern terrorist communications when the President said exactly the opposite?

And even if all of this were not true, we do not have a system of government (at least we never did before) where the President has the right to violate a law which he and his followers believe has become "obsolete" as a result of subsequent developments. Even if FISA were the obsolete by-product of a Golden Time of Peace, as the President’s apologists claim, it is still the "law," and the obsolescence of a law does not even remotely justify deliberate violations of it. No matter how many times one points that out, it never ceases to amaze that, at bottom, this scandal -- which has been burdened with all sorts of obfuscating legalisms and complexities -- arose from nothing more complicated than the fact this Administration believes it has the right to violate laws which it does not think are good laws.

But more important than all of those facts, what is far more fundamental is the defining American precept that a strong nation affirms its core principles most vigorously precisely when it faces external threats. We are a strong nation because we have adhered to the rule of law and our founding principles even as we defeated enemies far more formidable and threatening than a ragtag group of Islamic fanatics. Of all the radical changes which this Administration is attempting to bring about, the most threatening and corrupt is the notion that we need to fundamentally transform not just our system of government, but also our national character, all in the name of fighting Al Qaeda.

Federal court orders Justice Dept. to release NSA documents

This development seems quite significant; at the very least, it will ensure that the scandal continues regardless of the degree of success the White House finds in attempting to suppress a meaningful Congressional investigation. And, this will be yet another front where the White House is engaged in a full-scale effort to prevent an investigation into their illegal eavesdropping program. Here is what happened:

On the very day the New York Times first disclosed the existence of the warrantless eavesdropping program, The Electronic Privacy Information Center ("EPIC") filed a Freedom of Information Act ("FOIA") request with the Justice Department seeking the disclosure of four categories of documents relating to the NSA program, including documents reflecting the method used to determine which American citizens were eavesdropped on, as well as documents pertaining to the legal "justifications" for the Administration's eavesdropping program.

Despite purporting to approve EPIC's request for expedited processing of the FOIA application, the Justice Department dragged its feet, never produced anything (or responded in any way to the request), and continued to conceal those documents. As a result, EPIC commenced a FOIA action against the DoJ in federal court in the District of Columbia, seeking a preliminary injunction compelling the DoJ to comply with the FOIA request and produce the demanded documents. The ACLU filed a similar suit which was consolidated with the suit filed by EPIC.

Today, Federal Judge Henry H. Kennedy, Jr. granted EPIC's Motion for a Preliminary Injunction (h/t Hypatia) and ordered the Justice Department, no later than March 8, to respond to the FOIA request and produce the demanded documents or, alternatively, specifically identify the documents and specify the ostensible reasons for withholding them. The Court's order (in .pdf) is here.

Many of these documents are among those sought by Senate Judiciary Committee Chairman Arlen Specter, which the DoJ is refusing to produce. But the FOIA requests here go beyond those which Specter is trying to obtain, since Specter is seeking only documents pertaining to the legal justification for the program but these FOIA requests also include operational aspects of the illegal eavesdropping.

I do not know all of the implications of the Court's order, which will undoubtedly be appealed and perhaps stayed during the appeal. The DoJ is not yet being required to produce all of the requested documents but instead merely to "respond" to the FOIA requests, which leaves open the option of objecting to producing some or all of them on the grounds of various privileges and national security claims. But the Order does require the DoJ to "produce or identify all responsive records" by March 8, which means that they will have to identify the documents they want to withhold and provide reasons why they are withholding them (which the court will then review for validity).

As significant as the ruling itself is the rationale for it. The court explained:

President Bush has invited meaningful debate about the warrantless surveillance program. . . . That can only occur if DOJ processes [EPIC's] FOIA requests in a timely fashion and releases the information sought . . . .

[A] meaningful and truly democratic debate on the legality and propriety of the warrantless surveillance program cannot be based solely upon information that the Administration voluntarily chooses to disseminate.

As I have been indicating, this scandal has many tentacles. And each of them is growing inexorably. The White House is running around with a broom desperately trying to sweep each branch under the rug (odd behavior for a White House which claims to welcome this scandal because it politically benefits from it), but once the mechanisms of the Washington scandal machine are activated with full-force, it is very difficult to simply shut them off or the prevent the disclosure of information which someone is trying to conceal. Clearly, this scandal isn't going to fade away with a little arm-twisting of some weak-willed Senators on the Senate Intelligence Committee.

The NSA scandal grows & other matters

The story in yesterday's Washington Post suggesting that the White House is finding success in its scheme to shut down investigations into the NSA scandal caused great celebrations in some quarters and great despair in others, including here. All of that was quite impetuous and premature. I'm not sure what the source was for that Post article, but multiple events even over the last 24 hours make clear that this scandal is growing tentacles, and that there are numerous fronts on which intense battles are being waged over the Administration's lawlessness.

I don't have the time this morning to post extensively on the issues I want to post about -- I will post more later today -- but there are multiple items along this line, and others, worth noting for the moment:

(1) This article from today's The Washington Post demonstrates just how vibrant and growing this scandal is. The article reports that additional witnesses will be called by the Senate Judiciary Committee, including John Ashcroft, James Comey, and other high-level DoJ officials who alerted the Administration to the fact that their warrantless eavesdropping program was illegal. The Administration is, of course, attempting to block their testimony through the invocation of every "privilege" it can find, and they are also attempting to conceal relevant documents reflecting the fact that they were advised of the program's illegality by their own high-level lawyers.

There is certain to be a growing dispute between the Committee and the increasingly partisan DoJ over the Administration's ongoing attempts to conceal information which demonstrates that even conservative high-level DoJ lawyers advised that this program was illegal:

In addition, Attorney General Alberto R. Gonzales signaled in an interview with The Washington Post yesterday that the administration will sharply limit the testimony of former attorney general John D. Ashcroft and former deputy attorney general James B. Comey, both of whom have been asked to appear before the Senate Judiciary Committee regarding the program.

"Clearly, there are privilege issues that have to be considered," Gonzales said. "As a general matter, we would not be disclosing internal deliberations, internal
recommendations. That's not something we'd do as a general matter, whether or not you're a current member of the administration or a former member of the administration."

"You have to wonder what could Messrs. Comey and Ashcroft add to the discussion," Gonzales added. In response to the comments last night, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said he has asked Gonzales for permission to call Ashcroft and Comey to testify but has not received an answer.

"I'm not asking about internal memoranda or any internal discussions or any of those kind of documents which would have a chilling effect," Specter said.

But he said he would expect Ashcroft and Comey to talk about the legal issues at play in the case, including debates within the administration that included a visit by high-level officials to Ashcroft while he was in a hospital bed in 2004.

The remarks are among the latest developments in the debate over the National Security Agency program, which was first revealed in media reports in December. President Bush and his aides have strongly defended the program as both lawful and necessary to track suspected al Qaeda associates, but many legal scholars and lawmakers on both sides of the aisle have raised doubts about the program's legality.

The more the Administration tries to cover-up what it did and block the various investigations, the longer this scandal will endure.

And shouldn't it be painfully obvious to all of those frightened Democrats that the chest-beating claim by Bush followers that this scandal benefits Republicans is a complete bluff and sham? If it were the case that this scandal helps Republicans, they would be doing everything they could to ensure that this scandal persists and that there were as many hearings held as possible. They are doing the opposite - they are doing everything they can to kill the scandal and make it go away. Isn't it obvious that they fear the scandal and realize it has the potential to do great harm? Why else would they be trying to suppress these investigations? Is Karl Rove's childish bravado really that blinding that it can erase basic logic?

(2) George Will became the latest in a long and growing line of conservatives to loudly trumpet the true threat to the core principles of our democracy posed by the Administration's law-breaking and its theories of an unchecked Executive. Anonymous Liberal has posted an excellent analysis of Will's column. Correctly pointing out that the Administration has embraced a "monarchical doctrine," Will explains:

Besides, terrorism is not the only new danger of this era. Another is the administration's argument that because the president is commander in chief, he is the "sole organ for the nation in foreign affairs." That non sequitur is refuted by the Constitution's plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws "necessary and proper" for the execution of all presidential powers . Those powers do not include deciding that a law -- FISA, for example -- is somehow exempted from the presidential duty to "take care that the laws be faithfully executed."

With as many conservatives as there are loudly protesting the Administration's attempt to claim the power of law-breaking, there is no way for this scandal to simply fade away. The protests from patriotic Americans across the ideological divide will simply not permit it.

(3) The vote of the House Judiciary Committee which I reported on yesterday to reject a proposal by Rep. Conyers to demand various documents from the DoJ was not, as I indicated, strictly on party lines. Every Democrat voted for it, but one Republican, Rep. John N. Hostettler of Indiana, also did.

(4) In yesterday's post, I commented upon the glaring disparity between: (a) the propagandistic myths which Bush followers have ingested that paint a picture of Republicans as being wildly popular among the "vast majority" of Americans (i.e., all normal Americans, excluding just a few radical, fringe freaks on the coast), and (b) the facts, reflected almost unanimously by polling data, showing that George Bush is an intensely unpopular President and that Americans actually reject his foreign policy overwhelmingly. It is truly amazing, and alarming, how Bush followers continue to maintain that myth even in the face of overwhelming evidence which negates it.

As he so often does, a commenter here, Gedalyia, wrote several comments in response to that post yesterday which hilariously and potently reflect exactly the syndrome which was being described. Here is what he said as part of one of those Comments:

Thank God the vast majority of Americans reject your suicidal impulses, and that we have a military capable of carrying out our will to defeat Islamic fascism.

He made similar comments about how Democrats would be sure to suffer smashing electoral defeat if they criticized Bush on the NSA scandal or other Administration foreign policies -- exactly the factually false myths that I described yesterday.

The reason that you can't debate the specific strain of loyal Bush followers represented by Gedalyia is because they live in a dense, fact-free world where their hatred for Arabs ("There are over 3,000,000 Arabs in the United States. I'm surprised there aren't more names on the terrorist watch list") and creepy worship of George Bush's faux cowboy strutting outweighs, by far, any facts that you can show them. The manufactured and meticulously maintained Bush image of manly courage and masculine toughness -- an image contradicted by every fact of George Bush's actual life -- is particularly important here, as this well of masculine power is extremely potent for people like Gedalyia, who perceive that they lack those attributes themselves and thus worship others who project it. It's all emotional and psychological for guys like him and thus not susceptible to reasoned discourse.

Before he wrote the Comment which I just quoted, he presumably read the post I wrote which described the polling data showing that Americans overwhelmingly reject the war in Iraq and that a plurality are opposed to the NSA program. And yet, compare his claim that the "vast majority of Americans" support the agenda of the Administration to the facts I cited in the post, just to get an idea for how delusional and fact-resistant so many Bush followers are:

About 49 percent of respondents said the president had definitely or probably broken the law by authorizing the wiretaps and 47 percent said he probably or definitely had not.

Those numbers were similar to a question about whether the program is right or wrong -- 47 percent said it was right and 50 percent called it wrong.

Eichenberg says all that [perceptions that Iran is a growing danger] is eroding President Bush's standing, too. Among those polled, 55% say they lack confidence in the administration's ability to handle the situation in Iran. And Bush's approval rating has dipped to 39%, the first time below 40% since November, in the aftermath of Hurricane Katrina.

A 55% majority say the war in Iraq was a mistake. Just 31%, a record low since the question has been asked, say the United States and its allies are winning there.

"It [the poll] suggests that he's pretty much down to his core supporters out there ... and everyone else has left," says Richard Stoll, a political scientist at Rice University.

People like Gedalyia who see George Bush as a figure of phallic greatness live in a fantasy world where the "vast majority" of people support Bush's policies and actions, and criticizing the Leader's actions -- especially those designed to heroically protect us -- will therefore lead to certain electoral defeat, even though every available fact demonstrates that the opposite is true.

People like that are beyond the reach of reason, because the fulfillment which they derive from being a Bush follower and all of the ritualistic, risk-free chest-beating which that entails renders them indifferent to rational discourse. This genuinely brilliant analysis by Digby -- which dissects the grotesque episode in which the mushy Chris Matthews drooled with sad, needy homoerotic reverence over Bush's strutting around on that aircraft carrier in his little pilot outfit, while G. Gordon Liddy expressed overt admiration for Bush's masculine package -- remains the gold standard for understanding why and how meek male losers find such personal satisfaction and fulfillment by being a Bush follower. It is as physically unpleasant as it is important to understand.

(5) I was not all that enthusiastic about the Dick Cheney hunting story but I watched Cheney's loving sit-down with Brit Hume -- a visit which resembled a concerned, supportive son visiting his father during an emotional crisis far more than it did a journalist interviewing an elected official about a government scandal -- and it was amazingly apparent just how unforthcoming and self-protectively dishonest Cheney was being in describing what happened.

I'm far from convinced that there was any great cover-up here, but clearly Cheney waited to notify the press and then waited much longer to talk about what happened because he did not know what the outcome would be and wanted time to construct his story and defense. The interview was replete with the sort of obfuscating and evasion that one routinely finds in an overly prepared and defensive deposition witness who is doing everything except testifying truthfully and clearly. Two clear falsehoods stuck out for me.

The first was one initially detected by the always perceptive Emptywheel and thoroughly documented by Roy Temple -- that Cheney repeatedly claimed that Katherine Armstrong witnessed the shooting which is why he assigned her the task of reporting the incident to the media, even though her statements leave no doubt that she was not a witness at all. This post also does a great job in illustrating what is a pattern of clear and deliberate inconsistencies in the stories given by Cheney and his close friend, Ms. Armstrong.

The second falsehood is the fact that Cheney continuously referred to Harry Whittington as a "great friend" and "my friend Harry" even though he admitted that Whittington was just an "acquaintance" with whom he had never even hunted before. This is not notable because it's some grand deceit but it reflects the fact that Cheney's approach to the whole interview was to manipulate sympathy and secure political protection rather than candidly describe what happened.

All of that unctuous yammering about "my friend Harry" was designed to make it seem like Cheney was going through some sort of grand emotional crisis over the plight of his old, close friend and, therefore, we should let Cheney alone in his time of grief over this tragic accident. In fact, Whittington is nothing of the sort for Cheney, as he admitted in a moment of unguarded candor. The whole interview was play-acting from start to finish, which is why, of course, Cheney chose a "journalist" notable primarily for his unseemly eagerness to act out his assigned role in the White House's scripts.

The NSA Scandal and public opinion myths

(updated below - updated again)

The NSA scandal is at a crossroad. In one sense, there were numerous events this past week which reflect a growing scandal. Further hearings by the Judiciary Committee are being planned; increasing numbers of Republicans, including Rep. Heather Wilson, Grover Norquist and Richard Epstein, have expressed serious objections this week to the Administration’s actions; and Tim Russert devoted his entire hour on last Sunday's Meet the Press to the scandal, a clear sign of the scandal's growing strength.

But undercutting all of that momentum is the increasingly obvious fact that a substantial number of Democrats are flirting heavily with -- if they have not already outright embraced -- the notion that they ought to back away from this scandal, focus on legislative "revisions" to FISA in order to render retroactively legal the Administration’s patently (and proudly) lawless behavior, plead with the Administration to accept some oversight going forward, and then forget about the whole sordid affair. Put another way, many Democrats are slowly slouching towards the path they almost always end up taking – that is, not challenge the Administration due to three things: fear, fear and fear. Specifically, they are afraid that standing firm will backfire politically, even though all available facts suggest that this fear is wholly unfounded.

Political considerations to the side for a moment, how can Democrats even consider allowing the Administration to break the law with impunity? As I’ve argued many times, the Administration did not violate the law here because they have a specific view uniquely about their power to eavesdrop. They violated the law here because they have adopted a general theory of Executive power which maintains that the President has the right to act contrary to any Congressional law -- and without any judicial "interference" -- with regard to any decisions that even vaguely pertain to national security, even including the use of war powers against American citizens on U.S. soil. To allow the Administration a free pass on this lawlessness is to further install and solidify that ideology of lawlessness. How can any Democrat possibly think it’s in the interests of their party or this country to acquiesce to that?

What is so simultaneously bewildering and frustrating about the tentative and fearful posture assumed by so many Democrats with regard to this scandal is that the fears are based on nothing but pure fantasy and myth. This notion that Democrats cannot pursue this scandal because they will look weak on national security or be painted as wanting to "hang up on Osama" is completely negated by every relevant fact.

There was a new CNN/USA Today/Gallup poll released yesterday containing substantial data regarding public opinion of this scandal. As CNN reported:

About 49 percent of respondents said the president had definitely or probably broken the law by authorizing the wiretaps and 47 percent said he probably or definitely had not.

Those numbers were similar to a question about whether the program is right or wrong -- 47 percent said it was right and 50 percent called it wrong.

A majority believes the eavesdropping program is "wrong." And a plurality, close to a majority, believe that the President "probably or definitely" broke the law.

And if you add to that total the percentage (24%) which thinks that the President "probably" did not break the law (which means, by definition, that those respondents are still open to the possibility that he did), it means that 73% of the public is open to the possibility that the President broke the law here (with the vast majority of those believing that the President did break the law). One can look at the converse of that as well (that roughly the same total are open the possibility that the President did not break the law), but the point is that after two months of this scandal, close to a majority believe that George Bush did break the law and almost everyone outside of the hardest-core Bush loyalists (and even some of those) are open to the possibility that he broke the law.

These are extraordinary and unbelievably encouraging numbers, and that is so for several reasons. First, there is a potent and important core political belief in our country that the President is not above the law. Most Americans viscerally know that Richard Nixon was booted from the White House in disgrace because he broke the law. Few things would be more damaging to the President and his Administration – and deservedly so – than convincing the American public that he broke the law when exercising his political powers. These polls demonstrate that Americans are ready to be convinced of this. Many already have been. What rationale could possibly justify Democrats backing away from this opportunity?

Second, I am genuinely amazed that the percentage of people who believe that Bush broke the law is so high, because Democrats have barely even made this case to the public. The number of prominent Democrats who have come before the cameras and stated unequivocally and unapologetically that George Bush broke the law can be counted on one hand. Americans have almost come to this conclusion on their own. Imagine what these numbers would be if Democrats were acting in unison and were taking a firm and principled stance against the Administration’s law-breaking, not just with regard to eavesdropping but with regard to the Administration's views of the Executive power of law-breaking.

This Sunday’s Meet the Press was one of the most instructive, and depressing, illustrations of this phenomenon ever. The show was devoted to the NSA scandal. The Republican guests were the Chairmen of the Senate and House Intelligence Committees, Sen. Pat Roberts and Rep. Peter Hoekstra. The Democrats were the ranking Democrat on the House Intelligence Committee, Rep. Jane Harman, and former Senate Majority Leader Sen. Tom Daschele.

The two Republicans could not have been any more aggressive or absolute in defending the Administration. There was not an acknowledgment by either of them that any of the Administration’s defenses could be even remotely or theoretically flawed. They emphatically advocated the Administration’s views on each and every issue – the President did nothing wrong; he had legal authority both from Article II and the AUMF for everything he did; he briefed the Congress fully; and thank God he did this because he’s protecting us all from being blown up.

Amazingly, what Harman and Daschele said was not really much different than that. Neither of them once articulated the primary point here – that this is a scandal because George Bush broke the law, or that the Administration is espousing theories that entitle them to act contrary to law, even as to the Government’s treatment of American citizens on U.S. soil. You just don’t hear any of that from Democrats, at least not Democrats like Harman and Daschele.

What you hear is mealy-mouthed, conflicted incoherence which inexplicably attempts to pay homage to the basic goodness and rightness of the extremely unpopular Administration while offering only the most reluctant, tepid and fringe critiques of its actions -- and, from Harman, what we heard was that it was likely that the program was legal and, for that reason, the leakers and even the journalists who disclosed the program ought to be criminally prosecuted.

Republicans have been hammering the notion that the President’s actions were not only legal but absolutely necessary to prevent our children from being blown up, while Democrats have nervously suggested that maybe this wasn’t entirely proper but maybe we should also just ask the President how we can help to make what he wants to do legal.

And even with all of that, a plurality – almost a majority – believe that the President broke the law, and an overwhelming majority are open to the possibility that he did. Given the dynamic among politicians and the media, that is really an extraordinary result. So what explains the Democrats’ irrational and factually baseless fear of pursuing this scandal?

The central premise of conventional political wisdom is that Democrats are chronic losers whose real views are overwhelmingly rejected by most Americans. As a result, they can’t say what they really believe because what they really believe is embraced only by a handful of freaks and outcasts on the coasts and the "heartland" is repulsed by what they believe. As a result, if they want to win elections, they have to dress up what they think in much more moderate and Republican-accommodating language, constantly genuflecting to basic Republican premises but only nitpicking on the corners, because otherwise, normal Americans will continue to be repelled by their angry, radical agenda.

How many times do we hear that - from the media, from pundits, in the blogosphere, even from Democratic consultants? If there is such a thing as conventional wisdom, it’s that.

What is so unbelievable about this world-view is that it is so plainly predicated on falsehoods, on factually false premises. Let’s use the war in Iraq as an example. According to this prevailing wisdom, anyone who opposes the war on Iraq, who thinks it’s a mistake, who doesn’t pay homage to the President’s "go-on-offense-against-the-terrorist" routine when it comes to Iraq, is a pacifistic, out-of-the-mainstream loser who is an embarrassment to the Democrats and is the type of person who has to be repudiated and hidden if the Democrats have any hope of winning every again.

That notion is as widely accepted as it is false. Here is what USA Today reports about their latest poll:

Eichenberg says all that [perceptions that Iran is a growing danger] is eroding President Bush's standing, too. Among those polled, 55% say they lack confidence in the administration's ability to handle the situation in Iran. And Bush's approval rating has dipped to 39%, the first time below 40% since November, in the aftermath of Hurricane Katrina.

A 55% majority say the war in Iraq was a mistake. Just 31%, a record low since the question has been asked, say the United States and its allies are winning there.

The radical, out-of-the-mainstream view is not that the war in Iraq is a mistake. That is, quite solidly, the majority view. The radical view is that we did the right thing by invading Iraq. And yet, if you listen to the blogosphere, and more importantly, the establishment media, the premise is always that anyone who strongly condemns the war in Iraq (e.g. Howard Dean, Jack Murtha, etc.) is a fringe radical who is sinking the Democrats’ electoral chances. But the facts demonstrate that the opposite is true. A lopsided majority hold that view.

If a Democratic politician were to say that the U.S. was not winning the war in Iraq, swarms of media pundits and Bush followers would decree that Democrat to be an untrustworthy out-of-the-mainstream cretin who cannot be trusted and who Democrats must repudiate unless they want to keep losing elections. And yet, by a lopsided 65-31 margin, Americans agree with that view. The out-of-the-mainstream view is the one the media has depicted as being the only acceptable view - that we did the right thing in invading Iraq, that we are winning there, that questioning the wisdom of our ongoing occupation is "what Karl Roves hopes for" because it will doom the Democrats to defeat.

Democrats have to realize -- and now -- that nobody outside of the core Bush cultists even listens to these manipulative appeals any more. They worked in 2002 and 2003; they don’t work anymore. The well has run dry. All of the public relations stunts over the last month - the Heroic Salvation of Los Angeles, the new scary bin Laden tape where he copies Democratic talking points, the oh-so-tough-and-resolute State of the Union strutting – it all fell on deaf ears and achieved nothing. As the USA Today article explains:

"It [the poll] suggests that he's pretty much down to his core supporters out there ... and everyone else has left," says Richard Stoll, a political scientist at Rice University.

Right from the start, the usual nay-sayers in the press and the Democratic consulting class anxiously brayed that the NSA scandal was a political loser for the Democrats. Those of us who thought it was wrong and serious that the President wants to break the law were doing him a huge favor, we were told, and we should just shut up and let him go about the business of "defending the nation" however he thinks is best. If we didn’t, Americans would start to think that we were trying to block him from protecting the nation against The Terrorists.

It’s now been two months since the scandal first broke. It’s been the most prominently covered story by far during that period. Are Americans running into the arms of the President because they perceive that Democrats are trying to prevent him from eavesdropping on Osama bin Laden? No, no such thing is happening. The opposite has happened. After two months of the news being dominated by this scandal, Bush’s approval ratings are back in the 30s and everyone has abandoned him other than the cultists who form his base and will never abandon him.

Immediately after the first day of the NSA hearings, I wrote this concerning the factors which I believe will determine the course and outcome of this scandal:

The Administration will be held accountable for its illegal conduct here if and only if Americans becomes convinced that the Administration's actions were wrongful and deserve punishment. And that, in turn, will happen only if Bush opponents formulate an effective and coordinated strategy for making this case directly to Americans, and then articulate those principles aggressively and passionately.

Democrats will pursue this scandal the way they ought to if and only if the public demands that they do so. One of the central challenges of the blogosphere is to marshal the public’s anger over this scandal in order to force Democrats to hold the Administration accountable for its law-breaking, and to take a stand for the rule of law in this country. Most Democrats clearly won’t do this unless they are compelled to, but I believe that with a weakened, unpopular President and extremely encouraging public opinion polls on this scandal, we ought to devote our focused and vibrant energies towards preventing Democrats from running away from this challenge.

UPDATE: Sean-Paul Kelley reports at The Agonist that, while the world listens to Dick Cheney's stoic expressions of regret and pain, the House Judiciary Committee voted today 21-16 -- along party lines -- against requesting that the Justice Department produce legal documents (which do not reveal operational details) regarding the legality of the NSA program.

And Digby expresses frustration and offers some highly insightful analysis regarding the pitiful fear of many Democrats to take the position that the President ought to abide by the law.

UPDATE II: Every time I think the Administration is making headway in slowing down the momentum of this scandal, some event occurs which changes my mind. Atrios has posted excerpts of what appears to be a truly phenomenal speech by Sen. Byrd on the NSA scandal. A small portion:

…I plead with the American public to tune-in to what is happening in this country. Please forget the political party with which you may usually be associated, and, instead, think about the right of due process, the presumption of innocence, and the right to a private life. Forget the now tired political spin that, if one does not support warrant-less spying, then one may be a bosom buddy of Osama Bin Laden.

And the tenacious Thersites reports that Sen. Jay Rockefeller's office expects that "there will be hearings [of the Senate Intelligence Committee] within the next two weeks."

Why Ann Coulter matters

(updated below)

Glenn "Instapundit" Reynolds accuses me today of "degrad(ing) the blogosphere" because I wrote a post at Crooks & Liars observing that Reynolds had done nothing to denounce the violence-advocating and epithet-spewing remarks of Ann Coulter at last week’s highly prestigious Conservative Political Action Conference (CPAC), and I encouraged C&L readers to e-mail Reynolds and ask why this was. As I documented here, the CPAC is one of the most important Republican events of the year, and its invited speakers along with Coulter included Dick Cheney, Ken Mehlman, Bill Frist, Newt Gingrich and Reynolds himself.

As I explained in the C&L post, my belief that Reynolds has an obligation to either denounce or defend Coulter’s comments is largely based on the fact that Reynolds routinely lectures Democrats on what he claims is their obligation to denounce "extremists on the Left" – even when the extremists in question are totally fringe and inconsequential figures who have nothing to do with Democrats, and – unlike Coulter here – don’t have huge throngs of followers and aren’t invited to be the featured speaker at the most important political events of the year. I specifically cited this post from Reynolds self-righteously taking Democrats to task for their grave moral failure in remaining silent about that oh-so-significant, long-standing icon of the Democratic Party, Ward Churchill.

In that regard, compare Reynolds’ Churchill sermon to Democrats ("I keep hearing that there's a silent majority on the Left that doesn't agree with these things. I keep waiting for it to stop being silent."), with Reynolds’ excuse for his silence about Coulter from his post today ("I tend mostly to ignore Coulter."). Isn’t that the very definition of a double standard?

Republicans have been playing this game for years. They wildly inflate the importance of fringe, extremist figures and then -- every time one of those individuals makes an intemperate remark or comment that can be wrenched out-of-context and depicted as some sort of demented evil -- they demand that Democrats ritualistically parade before the cameras and either condemn those individuals or be branded as someone who is insufficiently willing to stand up to the extremists "in their party."

If that’s the game that is going to be played - and we’ve been playing exactly that tired, corrupt game for several years now – it ought to at least be two-sided.

Unlike, say, Ward Churchill, Ann Coulter is not some fringe, obscure figure for the right-wing crowd. To the contrary, she is one of the most popular and influential pro-Bush speakers around, which is exactly why she was invited to be one of the featured speakers at one of the most significant conservative events of the year. And Glenn Reynolds, just like Coulter, was also an invited speaker at this event.

So, Coulter isn’t just the leader of a substantial faction in Reynolds’ political party (although she is that), but they also have the nexus of both being invited speakers at the same event. Put simply, Coulter’s importance is infinitely greater than Ward Churchill’s (or Harry Belafonte's or Barbra Streisand's or any other left-wing bogeyman), and Reynolds’ connection to Coulter is far more substantial than all of those Democrats who never even heard of Churchill before and yet, according to the sermonizing Reynolds, nonetheless somehow had a compelling obligation to denounce him.

The comments Coulter made during her speech were reprehensible in the extreme. And those comments prompted not condemnation from the audience but its opposite -- what one observer described as a "boisterous ovation." Certainly under the denuncation standards that have been applied to Democrats for years, every attendee at that event, and anyone pledging featly to the "conservative" cause, has an obligation to say what their views are of Coulter generally and to address specifically why she was invited to be a featured speaker and why she plays such a prominent role, and commands such popularity, in the Bush movement. Although her comments were extreme, they are neither new nor surprising, as she has a long and documented history of urging violence against her political opponents and making comments quite similar to those she made at the CPAC.

I wrote my post urging that Reynolds be asked about his conspicuous silence concerning Coulter only once: (a) several days elapsed after Coulter’s speech and Reynolds said nothing to condemn it, and (b) I began receiving e-mails pointing to posts written by Reynolds where he piously demanded that Democrats not remain "silent" in the face of intemperate remarks by far less important figures than Coulter.

Republicans have spent the last five years courting the most extreme and radical elements of their party, while the media allows them to present a mainstream and moderate face to the public. While we were given John McCain, Rudy Guliani, and Arnold Schwarzenegger as the prime-time speakers at the GOP Convention, Republicans cowtow in the dark to figures like James Dobson, Pat Robertson and Coulter. It is time that they either embrace those alliances in the open or repudiate them.

And oh, just incidentally, if you are a person who finds Coulter’s remarks reprehensible and believe that they ought to be condemned by decent people, guess what that makes you, according to Reynolds? That's right - a "lefty" ("SO I GET HOME AND FIND MY INBOX full of complaints from lefties that I've been "silent" about Ann Coulter's remarks on Friday" and "The lefties seem mostly upset about her use of the term "raghead").

Now, having said all of that, Reynolds’ condemnation of Coulter, once he was finally prodded into making it, is quite potent and clear. He says that Coulter inflames the divide between Muslims and the West and therefore, because winning hearts and minds is our most important objective in the war on terrorism, Coulter is "objectively pro-terrorist." I can’t quibble with that.

But that leads to a rather glaring question, which is this: why is someone so extreme, hateful, and destructive so wildly popular among Bush followers; why is she continuously treated as a respectable and important figure among "conservatives"; and why have so few of the prominent Republicans who participated at the CPAC not condemned her, ever? If one is a supporter of Bush, as Reynolds is, aren't those rather pressing questions?

UPDATE: Joe at Dartblog has this long, impassioned defense of Instapundit along with an ostensible reply to this post (which Instapundit promptly links to without replying to this post himself), and what's so amazing about Joe's post is that he comprehensively covers every single aspect of this issue except for the only two points I made:

(1) I did not argue that Reynolds has an obligation to denounce Coulter's comments on the ground that I think that everyone in the world has the obligation to jump up and denounce every repugnant comment. I argued that Reynolds has this obligation here because Reynolds himself has previously argued for that standard and applied it to Democrats -- by, for instance, condemning Democrats who failed to denounce the super-significant, iconic "Democrat" Ward Churchill.

Thus, with regards to Reynolds, I'm not arguing for a standard that imposes an obligation on everyone to denounce offensive comments. I'm arguing that Reynolds has that obligation himself because he imposes this obligation on others. I think that point was very clearly expressed in the post, but please - anyone else who wants to defend Instapundit here, recognize and address that point, since it's the whole point of the post.

(2) If people want to argue, as Joe did, that Coulter is just some fringe, irrelevant figure whom Republicans detest, then it really is incumbent on them to explain why millions of Bush followers buy her books, why they cheer on her hateful, violence-advocating rants, why she is one of the most featured pro-Bush pundits on Fox, and why she is one of the featured speakers at the most important conservative event of the year. Coulter has a vast and enthusiastic following among Bush followers and is treated accordingly. If she's "objectively pro-terrorist," as Reynolds claim, shouldn't this not be the case?

UPDATE II: Contrary to Reynolds' claim that he "tend(s) mostly to ignore Coulter," and contrary to his defenders' insistence in the Comments section that he has a long and clear history of denouncing her, what he actually has -- as this Comment from Y.G. Brown demonstrates -- is a pattern of linking to Coulter and/or promoting her latest ventures, such as her blog. So, here we have someone promoting and linking to the ideas of a reprehensible hate-monger, who simultaneously lectures Democrats about how they are morally shameful for failing to denounce obscure, irrelevant extremists.

This is a real microcosm of the game many Bush followers have been playing for a long time -- singling out irrelevant, supposedly "leftist" extremists and demanding that Democrats attack them, while tacitly endorsing and forming alliances with their own far more influential and significant extremists. As these facts demonstrate, Reynolds is a perfect illustration of that one-sided game, but it's quite pervasive.

Follow-up to the Bush post yesterday

(updated below)

There are numerous replies around the blogosphere to my post yesterday regarding the various dynamics characterizing the behavior of Bush followers. I’m replying here to as many of the serious and/or commonly voiced responses as I can. If any of the bloggers who responded think I’m neglecting to address or reply to some important point, I hope they will let me know:

(1) Most (though not all) of the responses were quite heavy on name-calling and extremely light on substantive replies to the actual points in the post. More notable than the unsurprising fact that the post prompted lots of name-calling is the specific name-calling insults that were chosen. Almost invariably, bloggers told their readers that what I wrote can be disregarded because I’m just a "leftist" and a "lefty" and a "liberal" spewing forth the "KosHuff" party line.

According to Rick Moran at Right Wing Nuthouse, for instance, my "writing is little more than a tired echo of what conservatives can read on a daily basis at Kos or any other lock-step lefty blog where Bush Derangement Syndrome reigns supreme." And at Little Green Footballs (more on it below), my post won the award for "Leftist Lie of the Day" and was held up as an example of "dishonest, ethically-challenged childish babbling that passes for leftist ‘debate’ in this modern age."

So, they label the argument and the person making it "leftist" and "liberal" and - presto! - no more need to address the arguments or consider its substance because it’s all been shooed away with one fell swoop of name-calling cliches.

I mention all of this because it illustrates what I think is an important point. I’ve been blogging for just over 3 months now. It’s almost certainly the case that the only views of mine that bloggers at LGF and RWNH know are, at most, my opposition to the Administration’s various theories entitling them to violate Congressional laws and my belief that the Administration manipulates terrorist threats for domestic political gain.

In other words, they don’t actually know my political views on most issues in controversy. All they know, at most, is that I am a critic of the Bush Administration’s approach to terrorism policies and the Administration's insistence that it need not abide by the law -- opposition which, in their eyes, is more than enough to qualify me as a "leftist" or "liberal" despite not knowing if I actually subscribe to liberal views on virtually any issue. Mere opposition to the Administration, by itself, is enough to qualify one as a "leftist" or "Liberal" – which, I do believe, was one of the principal points of my post:

It used to be the case that in order to be considered a "liberal" or someone "of the Left," one had to actually ascribe to liberal views on the important policy issues of the day – social spending, abortion, the death penalty, affirmative action, immigration, "judicial activism," hate speech laws, gay rights, utopian foreign policies, etc. etc. These days, to be a "liberal," such views are no longer necessary.

Now, in order to be considered a "liberal," only one thing is required – a failure to pledge blind loyalty to George W. Bush. The minute one criticizes him is the minute that one becomes a "liberal," regardless of the ground on which the criticism is based.

It is somewhat amazing to write a post describing this phenomenon only for Bush followers to deny its validity and, in doing so, provide such vibrant examples of exactly what I describing. They read the post and then rushed to dismiss what I wrote as coming from a "leftist" all because I criticized Bush and his followers. I suppose I should be grateful for the argumentative support.

(2) Moran at RightWing Nut House specifically objected to my claim that Andrew Sullivan has been excommunicated from the Church of Conservatism despite the fact that he still holds overwhelmingly conservative political views, strictly on the ground that he has become critical of George Bush (criticism which Sullivan often grounds in the fact that Bush’s actions are decisively un-conservative). In contesting this argument, Moran wrote:

But for Greenwald to posit the notion that Sullivan is no longer considered a conservative because of gadflies like Bozell is loony.

Ironically, Sullivan, shortly after Moran posted this, took the precise paragraphs quoted above (regarding how one becomes a "liberal" by virtue of criticizing George Bush) and made them the "Quote of the Day" on his site, concluding that my post "diagnos[es] the situation accurately."

Clearly, Sullivan is speaking from experience. Like so many others who have long identified as "conservative" and who hold conservative views on countless issues, he is now frequently described by Bush lovers as a "liberal," or worse, based exclusively on the fact that he is no longer blindly loyal to George Bush and is even sometimes critical of Bush's actions.

(3) One of the principal responses to the post was that it unfairly generalized Bush supporters. According to those advancing this objection, not all of them are blind loyalists to the Commander-in-Chief. Some conservatives support Bush only reluctantly and criticize him frequently on the ground that he is insufficiently conservative. This post by Mark Coffey is a good example of that objection.

I don’t disagree with this point. To the contrary, I would describe this point as being one of the principal prongs in my argument. There are conservatives who criticize Bush on a whole host of issues, either on the ground of ineptitude or because what Bush is doing is the very antithesis of conservatism. And they are treated as outcasts and traitors, and considered no longer to be real conservatives. That is one of the principal points of the post.

Here is an example of a kind of intellectually honest conservative I was describing, Matthew Regent, who explains his perspective in a comment here:

I'm a Republican and a conservative. I voted for Bush twice. I didn't want to the second time, but it was a two-horse race, and the other horse was Carter redux. I disapprove of Bush's job performance and have more than once been called a liberal or equivalent on conservative blogs as a consequence, despite my beliefs, which put me solidly in the moderate-conservative portion of the political spectrum.

I disapprove of Bush's presidency for a number of reasons, including fiscal recklessness, the misprosecution of the GWOT, the nationalization of issues like education and marriage, and general incompetence on the issues, from Katrina to Miers. Frankly, I don't think Bush is much of a conservative himself. I think he's a low-tax liberal who gets along with religious people at home and a Wilsonian abroad.

And yet when I say as much to many Bush supporters, I'm the one who is branded the liberal, the troll, etc. Bushism IS a personality cult.

The list of long-time conservatives who are the target of all sorts of attacks and decrees of excommunication when they criticize George Bush is long and growing, and if anything, my post was a defense of those conservatives rather than some claim that they do not exist. My post included multiple examples and there are countless more. The attacks don’t occur when they abandon conservatism. They occur when they dissent from the Bush Movement, which, in many -- I’d argue most -- cases, is not the same thing.

(4) None of the bloggers purporting to reply to the post addressed the fact that the arguments made by conservatives over the last three decades have been abandoned almost entirely and have been replaced by their precise antitheses -- all in order to justify George Bush’s conduct. The principal example used was the angry opposition to warrant-based FISA eavesdropping voiced by conservatives under the Clinton Administration, as compared to the stirring defense of warrantless, oversight-less eavesdropping now engaged in proudly by the Bush Administration.

But beyond that specific, quite revealing instance is the general disappearance of an anti-federal-government ethos. Principles of a restrained federal government and distrust of that government -- previously centerpieces of the conservative movement -- have been discarded like yesterday's trash in order to maintain praise of George Bush's actions and to maximize the powers and reach of the Federal Government now that Bush controls it.

Although no bloggers addressed this point, one commenter at Right Wing Nut House did, and in doing so, he illustrated that some things are beyond satire. Here is an excerpt from a satirical post by Dr. Biobrain purporting to disagree with what I wrote:

Sure, the current-day conservatives completely go against everything that they stood for before, but there's a perfectly good explanation for that: That was then, this is now. The conservative movement is nothing if not pragmatic, and simply because some liberals like Glenn are stuck in a pre-9/11 attitude concerning political ideologies is no concern to us. The conservative movement has moved on, and guys like Greenwald and Sullivan were simply left behind; flailing about like dying salmon.

Compare that with this Comment (number 10) at RWNH actually disagreeing with what I wrote:

As for your fallacious FISA complaint/argument, one small difference: war. While you were buying your overpriced yahoo during the new economy stupid and gutting the intelligence community, the evildoers (I want to make sure you know I am a Bush drone) metastasized. Then comes 9/11: it changed things you know? Well for
most of us at least.

That Bush supporters abandoned all of their anti-federal-government rhetoric the moment they got control of the Federal Government -- whereby there was no longer any such thing as an excessively powerful Federal Government -- can’t really be denied. So the only option available to them is to justify the fundamental reversal of their views once George Bush took office, and it really isn’t pretty to watch.

(5) Numerous people, both in the Comments section here and in blog replies to the post, raised the issue of conservative opposition to Bush’s Supreme Court nomination of Harriet Miers, claiming that it constitutes proof that Bush supporters are still capable of some independent thought. As I said in the comments section last night in reply to this point:

I don't believe that one instance of independent thought in five years proves or disproves much of anything. The fact that people cling tenaciously to this example as proof that there are residual flickers of independent thought left among Bush followers says alot in itself. I think and have argued that Bush followers are excessively loyal to their leader, not that they've been lobotomized into mind-controlled zombies of the type one sees in a science-fiction film.

But I will say this: one will see criticism of Bush when he doesn't defend the movement with sufficient vigor or extremity. If they perceive that the White House isn't attacking liberals with sufficient fervor, or that they're backing down and compromising too readily, they will urge a more resolute posture on behalf of themovement. That's all Harriet Miers was. They were unconvinced that she would be as reliably loyal as Bush thought she would be, and they wanted someone more reliable and dependable to the cause.

(6) Charles Johnson at LGF wrote a post calling me a "liar" and accusing me of engaging in a "cheap, sleazy, intellectually lazy smear" because I linked to his website when pointing out that some Bush followers advocate dropping nuclear bombs on Muslim countries. Johnson says that he personally never advocated any such thing and, therefore, I’m a "liar."

LGF is a site far more notable, and far more frequently noted, for the prevailing sentiments expressed by the hundreds of rabid, regular commenters who swarm together after each post than it is notable for the one or two sentences which Johnson writes which serves as a trigger for those comments. For that reason, a substantial portion of the references in the blogosphere to "LGF," at least the ones I read, reference the comments section rather than the short, banal observations which Johnson spits outs before cutting and pasting a news article on the latest act of Muslim violence.

One of Johnson’s favorite little shticks is to express outrage whenever anyone attributes the sentiments of his regular, loyal commenters to his site. Disassociating himself with his own commenters seems particularly urgent for him now, in light of the reports that national advertisers don’t want anything to do with LGF because of the extremists which frequent that site.

It is extremely common to refer to the posts and commentators at that site collectively when referencing "LGF." For that reason, I believe it was entirely clear in what I wrote that I was pointing out that the pro-nuclear-war view is commonly expressed on that site, not necessarily by the individual who writes a couple of sentences with each news article. If that wasn’t clear, I am making it clear now: I have seen numerous commentators at LGF, including regular ones, advocate the dropping of nuclear weapons on Muslim countries, but have never read Johnson advocating that.

There is, though, a grand hypocrisy here which I can’t ignore. Bloggers everywhere, including Johnson, do exactly the same thing with references to "Daily Kos." Almost universally, "Daily Kos" is used as a shorthand for a wide range of horribles, very few of them having anything to do with what has been written specifically by Markos Moulitsas Zúniga, but is instead based upon sentiments expressed by some of the tens of thousands of participants at the Kos website.

Among pro-Bush bloggers, "Daily Kos" is used as a shorthand for the perceived prevailing orthodoxies in the Kos community, just as "LGF" is used far more to refer to the sentiments one regularly finds among the cesspool of LGF comments. Indeed, just among the comments in response to my post yesterday, one can see precisely this use of "Kos" to refer to the writings and comments of all participants rather than Markos himself. See, for example, here ("Greenwald’s writing is little more than a tired echo of what conservatives can read on a daily basis at Kos") and ("If Greenwald would read something besides the "me too" screeds on Kos and Atrios"); and here (I’m engaged in a "slow descent into HuffingKosLand").

The petulance of Johnson’s complaint is exceeded only by its hypocrisy. Johnson himself routinely attributes sentiments and opinions to "Daily Kos" which are expressed not by Markos, but by commenters and diarists on his site. See, for instance, here ("Daily Kos: 17th Street Levee Bombed by the Army Corps of Engineers," referring to a diarist on Kos); here ("It’s a Hitler-fest at Daily Kos!" -- referring to the views of a Kos diarist); here ("Daily Kos: Bush Responsible for French Riots"-- referencing a poll from a Kos diarist), and here ("Daily Kos: 'We Need ... Rivers of Blood,'" referring to a diarist on Kos). This list goes on and on, with Johnson attributing ideas to "Daily Kos" that have never been expressed by Markos, only by the commenters and diarists at that site.

So, to recap Charles Johnson’s ethical views of the world: Attributing ideas to "Daily Kos" which were written by Kos diarists and commenters and not by Markos -- something Johnson does with great frequency -- is perfectly acceptable and honest. But attributing ideas to "LGF" which were written with frequency by regular LGF commenters but not by Johnson is unacceptable, and doing so makes one a "liar."

UPDATE: If The New York Times gave me a pen and blank piece of paper and said that I could write any article I wanted to support my argument from yesterday, I would have written the article published today by Bush admirer Elisabeth Bumiller, entitled "An Outspoken Conservative Loses his Place at the Table" (h/t Devoman in Comments). It begins this way:

What happens if you're a Republican commentator and you write a book critical of President Bush that gets you fired from your job at a conservative think tank?

For starters, no other conservative institution rushes in with an offer for your analytical skills."Nobody will touch me," said Bruce Bartlett, author of the forthcoming "Impostor: Why George W. Bush Bankrupted America and Betrayed the Reagan Legacy." "I think I'm just kind of radioactive at the moment." . . .

Mr. Bartlett, a domestic policy aide at the White House in the Reagan administration and a deputy assistant treasury secretary under the first President Bush, talked last week at his suburban Washington home about his dismissal, his book and a growing disquiet among conservatives about Mr. Bush. . . .

He is unhappy, too, with the president's education and campaign finance bills and his proposal to overhaul the nation's immigration laws, which many Republicans call a dressed-up amnesty plan. The book, to be published by Doubleday on Feb. 28, also criticizes the White House for "an anti-intellectual distrust of facts and analysis" and an obsession with secrecy.

"I haven't switched to the Democratic Party," he said. "I wrote this for Republicans."

The article details how Bartlett, after being fired, has been shunned by conservatives for his blasphemy in criticizing George Bush on the ground that Bush has governed contrary to conservative principles.

Of particular note is this:

"Bruce is really an exception, not the rule, in the degree and thoroughness of his discontent," said William Kristol, a conservative strategist and the editor of The Weekly Standard. "So I wouldn't make too much of it. On the other hand, one thing I've noticed giving speeches in the last couple of months is that conservatives remain pro-Bush, but the loyalty to the movement and the ideas is deeper than the personal loyalty now. Two years ago, Bush was the movement and the cause."

That would be leading neo-conservative light William Kristol saying exactly what I said yesterday which (when I said it) was supposedly an example of crazed leftist idiocy: namely, that "Bush was the movement and the cause." Now granted, Kristol is claiming that this has changed over the last couple of years, but Bartlett's plight negates that claim rather strongly, and the fact that Kristol himself acknowledges a conflating of George Bush with "the movement and the cause" ought to give honest Bush followers serious pause for thought. Although Kristol says it in his characteristically understated way, it's a pretty serious condemnation to say that George Bush the person became the cause for "conservatives."

UPDATE II: Jonah Goldberg contributes some characteristically thoughtful and provocative responses here and here (my argument is "objectively inaccurate and stupid" and "as for" me, he "couldn't care less"). Ironically, a little later on, he references the Bumiller article here without realizing that it negates every single "point" he made in response to my post.

UPDATE III: In an Update of his own, Jonah says in response to e-mail that he received that he never actually read my post, and that when he called my argument "objectively inaccurate and stupid," he meant only the 2 paragraphs excerpted by Andrew Sullivan. Isn't that a little bit like calling a movie "objectively inaccurate and stupid" based on a review of the movie in a newspaper or after watching only a 2-minute trailer? TBogg's archives, as I hope he'll point out, cover this situation far better than anything I could say.

Do Bush followers have a political ideology?

Alexandra von Maltzan at All Things Beautiful has written a long and somewhat personal post expressing her "disappointment" in my blogging and in my political views. Scott "Big Trunk" Johnson at Powerline, in a post entitled "One Beautiful Thing," has announced that he "greatly enjoyed" her "disquisitions" (meaning her post about my blogging and my political views).

Reading Alexandra’s post, I learn that I have "sold out" due to my "blind loyalty to the liberal cause of sabotaging the Administartion (sic) with whatever means available at any given time." I’m "now simply dancing to the tune of the Daily Kos audience, and it is very disappointing to watch." Her primary argument in support of this theory is that I have "attempted to pulverize the talented John Hinderaker and Jonah Goldberg," that I hold "the brilliant Jeff Goldstein" to a "higher moral standard," and that I say unkind things about the "relentlessly talented and courageous Michelle Malkin." Seriously. That's because my "posts have become a barrage of personal attacks on conservative bloggers which were not present pre-love affair with Daily Kos, Atrios, Digby and Crooks and Liars ."

I want to leave the personal issues to the side and examine a few of the substantive issues raised (unintentionally) by Alexandra’s post. It used to be the case that in order to be considered a "liberal" or someone "of the Left," one had to actually ascribe to liberal views on the important policy issues of the day – social spending, abortion, the death penalty, affirmative action, immigration, "judicial activism," hate speech laws, gay rights, utopian foreign policies, etc. etc. These days, to be a "liberal," such views are no longer necessary.

Now, in order to be considered a "liberal," only one thing is required – a failure to pledge blind loyalty to George W. Bush. The minute one criticizes him is the minute that one becomes a "liberal," regardless of the ground on which the criticism is based. And the more one criticizes him, by definition, the more "liberal" one is. Whether one is a "liberal" -- or, for that matter, a "conservative" -- is now no longer a function of one’s actual political views, but is a function purely of one’s personal loyalty to George Bush.

One can see this principle at work most illustratively in how Bush followers talk about Andrew Sullivan. In the couple of years after 9/11, Bush followers revered Sullivan, as he stood loyally behind Bush, providing the rhetorical justifications for almost every Bush action. And even prior to the Bush Administration, Sullivan was a fully accepted member of the conservative circle. Nobody questioned the bona fides of his conservative credentials because he ascribed to the conservative view on almost every significant political issue.

Despite not having changed his views on very many, if any, of those issues, Sullivan is now frequently called a "liberal" (at best) when he is talked about by Bush followers. What has changed are not his political views or ideological orientation. Instead, he no longer instinctively and blindly praises George Bush, but periodically, even frequently, criticizes Bush. By definition, then, he is no longer a "conservative." As Sullivan put it:

OFF THE RESERVATION": Brent Bozell says I'm no "conservative." Label debates are silly. But I should say, for the record, that I favor the war in Iraq and Afghanistan, have been horrified by the incompetence of the occupation, but have been trying to make constructive arguments for how to win for quite a while now. Yes, I oppose the torture and abuse of military detainees. I'm a little stunned that this is now something that now requires one to be seen as a "liberal."

I support almost all of Bush's tax cuts (I support the estate tax) but also believe in balanced budgets and spending restraint (heretic!); I oppose affirmative action; I oppose hate crime laws; I respect John Kerry's military service; I believe all abortion is morally wrong and that Roe vs Wade was dreadful constitutional law (but I do favor legal first trimester abortions); I support states' rights, especially in social policy, such as marriage; I oppose the expansion of the welfare state, as in the Medicare prescription drug plan; I supported John Roberts' nomination and Sam Alito's; I believe in a firm separation of religion and politics, but I certainly take faith seriously and wrestle with my own. As regular readers know, I'm no fan of the far left. At some point, I have endorsed every single Republican president in my adult life.

All of that makes me a "liberal." Imagine what it now takes to be a "conservative" in Brent Bozell's eyes.

What it takes to make someone a "conservative" in Bozell's eyes is the same as what is required in the eyes of all Bush followers -- a willingness to support Bush's actions because they are the actions of George Bush.

We see the same thing happening to hard-core conservative Bob Barr due to his criticism of Bush's violations of FISA . Similarly, the minute a Senator with years of conservatism behind them deviates from a Bush decree on a single issue, they are no longer "conservative." George Voinovich became a "liberal" the minute he refused to support John Bolton’s nomination; John Sununu is now "liberal" because he did not favor immediate renewal of every single provision of the Patriot Act which Bush demanded, and Senators like Chuck Hagel and John McCain long ago gave up any "conservative" status because of their insistence on forming opinions that occasionally deviate from the decrees from the White House.

People who self-identify as "conservatives" and have always been considered to be conservatives become liberal heathens the moment they dissent, even on the most non-ideological grounds, from a Bush decree. That’s because "conservatism" is now a term used to describe personal loyalty to the leader (just as "liberal" is used to describe disloyalty to that leader), and no longer refers to a set of beliefs about government.

That "conservatism" has come to mean "loyalty to George Bush" is particularly ironic given how truly un-conservative the Administration is. It is not only the obvious (though significant) explosion of deficit spending under this Administration – and that explosion has occurred far beyond military or 9/11-related spending and extends into almost all arenas of domestic programs as well. Far beyond that is the fact that the core, defining attributes of political conservatism could not be any more foreign to the world view of the Bush follower.

As much as any policy prescriptions, conservatism has always been based, more than anything else, on a fundamental distrust of the power of the federal government and a corresponding belief that that power ought to be as restrained as possible, particularly when it comes to its application by the Government to American citizens. It was that deeply rooted distrust that led to conservatives’ vigorous advocacy of states’ rights over centralized power in the federal government, accompanied by demands that the intrusion of the Federal Government in the lives of American citizens be minimized.

Is there anything more antithetical to that ethos than the rabid, power-hungry appetites of Bush followers? There is not an iota of distrust of the Federal Government among them. Quite the contrary. Whereas distrust of the government was quite recently a hallmark of conservatism, expressing distrust of George Bush and the expansive governmental powers he is pursuing subjects one to accusations of being a leftist, subversive loon.

Indeed, as many Bush followers themselves admit, the central belief of the Bush follower's "conservatism" is no longer one that ascribes to a limited federal government -- but is precisely that there ought to be no limits on the powers claimed by Bush precisely because we trust him, and we trust in him absolutely. He wants to protect us and do good. He is not our enemy but our protector. And there is no reason to entertain suspicions or distrust of him or his motives because he is Good.

We need no oversight of the Federal Government’s eavesdropping powers because we trust Bush to eavesdrop in secret for the Good. We need no judicial review of Bush’s decrees regarding who is an "enemy combatant" and who can be detained indefinitely with no due process because we trust Bush to know who is bad and who deserves this. We need no restraints from Congress on Bush’s ability to exercise war powers, even against American citizens on U.S. soil, because we trust Bush to exercise these powers for our own good.

The blind faith placed in the Federal Government, and particularly in our Commander-in-Chief, by the contemporary "conservative" is the very opposite of all that which conservatism has stood for for the last four decades. The anti-government ethos espoused by Barry Goldwater and even Ronald Reagan is wholly unrecognizable in Bush followers, who – at least thus far – have discovered no limits on the powers that ought to be vested in George Bush to enable him to do good on behalf of all of us.

And in that regard, people like Michelle Malkin, John Hinderaker, Jonah Goldberg and Hugh Hewitt are not conservatives. They are authoritarian cultists. Their allegiance is not to any principles of government but to strong authority through a single leader.

It is hard to describe just how extreme these individuals are. Michelle Malkin is the Heroine of the Right Blogosphere, and she believes in concentration camps. As an avid reader of Michelle’s blog, I really believe that she would be in favor of setting up camps for Muslim-Americans and/or Arab-Americans similar to the ones we had for Japanese-Americans which she praises. Has anyone ever asked her that? Could someone? I don’t mean that she would favor interning them indefinitely - just for the next few decades while the war on terrorism is resolved.

And as excessive as the Bush Administration’s measures have been thus far -- they overtly advocate the right to use war powers against American citizens on American soil even if Congress bans such measures by law -- I am quite certain that people like John Hinderaker, Jonah Goldberg and Jeff Goldstein, to name just a few, are prepared to support far, far more extreme measures than the ones which have been revealed thus far. And while I would not say this for Jeff or perhaps of Jonah, I believe quite firmly that there are no limits – none – that Hinderaker (or Malkin or Hewitt) would have in enthusiastically supporting George Bush no matter how extreme were the measures which he pursued.

We have heard for a long time that anger and other psychological and emotional factors drive the extreme elements on the Left, but that is (at least) equally true for the Bush extremists. The only difference happens to be that the Bush extremists control every major governmental institution in the country and the extremists on the Left control nothing other than the crusted agenda for the latest International A.N.S.W.E.R. meeting.

And the core emotions driving the Bush extremists are not hard to see. It is a driving rage and hatred – for liberals, for Muslims, for anyone who opposes George Bush. The rage and desire to destroy is palpable. When John Hinderaker removes those tightly-wound glasses and lets go of the death grip he maintains on the respectable-corporate-lawyer facade, these are the sentiments which are always stirring underneath:

You dumb shit, he didn't get access using a fake name, he used his real name. You lefties' concern for White House security is really touching, but you know what, you stupid asshole, I think the Secret Service has it covered. Go crawl back into your hole, you stupid left-wing shithead. And don't bother us anymore. You have to have an IQ over 50 to correspond with us. You don't qualify, you stupid shit.

The rhetoric of Bush followers is routinely comprised of these sorts of sentiments dressed up in political language – accusations that domestic political opponents are subversives and traitors, that they ought to be imprisoned and hung, that we ought to drop nuclear bombs on countries which have committed the crime of housing large Muslim populations. These are not political sentiments, and they’re certainly not conservatives sentiments, but instead, are psychological desires finding a venting ground in a political movement.

It’s not an accident that Ann Coulter and her ongoing calls for violence against "liberals" (meaning anyone not in line behind George Bush) are so wildly popular among conservatives. It’s not some weird coincidence that the 5,000 people in attendance at the CPAC this last week erupted in "boisterous ovation" when she urged violence against "ragheads,’ nor is it an accident that her hateful, violence-inciting screeds -- accusing "liberals" of being not wrong, but "treasonous" -- become best-sellers. Ann Coulter has been advocating violence against liberals and other domestic political opponents for years, and she is a featured speaker at the most prestigious conservative events. Why would that be? It's because she is tapping into the primal, rather deranged rage which lies in the heart of many Bush followers. If that weren't driving the movement, she wouldn’t provoke the reactions and support that she does.

The combination here of rage and fear is potent and toxic. One of the principal benefits of the blogosphere -- with its daily posting and unedited expressions of thought -- is that it reveals one’s genuine underlying views in a much more honest and unadorned fashion than other venues of expression. For that reason, the true sentiments of bloggers often stand revealed for all to see.

And what I hear, first and foremost, from these Bush following corners is this, in quite a shrieking tone: "Oh, my God - there are all of these evil people trying to kill us, George Bush is doing what he can to save us, and these liberals don’t even care!!! They’re on their side and they deserve the same fate!!!" It doesn’t even sound like political argument; it sounds like a form of highly emotional mass theater masquerading as political debate. It really sounds like a personality cult. It is impervious to reasoned argument and the only attribute is loyalty to the leader. Whatever it is, it isn’t conservative.

This is one of the principal reasons I found the story yesterday of the DoJ’s criminal pursuit of the NSA leakers (including the Times) so serious. Fervent Bush followers have long been demanding that these leakers and the journalists involved in this disclosure be imprisoned, or worse. These demands are made despite the lack of any harm to our national security. They are motivated by one fact and one fact only – whoever disclosed the illegal NSA program harmed George Bush. And for that crime, no punishment is excessive.

If it now places one "on the Left" to oppose unrestrained power and invasiveness asserted by the Federal Government along with lawlessness on the part of our highest government officials, so be it. The rage-based reverence for The President as Commander-in-Chief -- and the creepy, blind faith vested in his goodness -- is not a movement I recognize as being political, conservative or even American.

A movement which has as its shining lights a woman who advocates the death of her political opponents, another woman who is a proponent of concentration camps, a magazine which advocates the imprisonment of journalists who expose government actions of dubious legality, all topped off by a President who believes he has the power to secretly engage in activities which the American people, through their Congress, have made it a crime to engage in, is a movement motivated by lots of different things. Political ideology isn't one of them.

UPDATE: For a glimpse of how actual conservatives quite recently used to think, one should read this article at FreeRepublic.com, which decries the dangerous loss of liberty and privacy as a result of the Clinton Administration's use of a "secret court" (something called the "FISA court") which actually enables the Federal Government to eavesdrop on American citizens! Worse -- much worse -- the judicial approval which the Government (used to) obtain for this eavesdropping is in secret, so we don't even know who is being eavesdropped on! How can we possibly trust the Government not to abuse this power if they can obtain warrants in secret?

Conservatives used to consider things like this to be quite disturbing and bad -- and the eavesdropping then was at least with judicial oversight. Now, George Bush is in office, and all of the distrust we used to have of the Federal Government exercising these powers has evaporated, because we trust in George Bush to do what is best for us. He should not just have those powers, but many more, and he should exercise all of them in secret, too, with no "interference" from the courts or Congress.

That is why I say that whatever else these Bush followers are, they are not conservative. (h/t Stand Strong and aarrgghh).

Silencing Bush critics with prison

I really believe that the significance of this article from today's New York Times cannot be overstated. In essence, while the President sits in the White House undisturbed after proudly announcing that he has been breaking the law and will continue to do so, his slavish political appointees at the Justice Department are using the law enforcement powers of the federal government to find and criminally prosecute those who brought this illegal conduct to light:

Federal agents have interviewed officials at several of the country's law enforcement and national security agencies in a rapidly expanding criminal investigation into the circumstances surrounding a New York Times article published in December that disclosed the existence of a highly classified domestic eavesdropping program, according to government officials.

The investigation, which appears to cover the case from 2004, when the newspaper began reporting the story, is being closely coordinated with criminal prosecutors at the Justice Department, the officials said. People who have been interviewed and others in the government who have been briefed on the interviews said the investigation seemed to lay the groundwork for a grand jury inquiry that could lead to criminal charges.

Alberto Gonzales just spent 8 hours testifying before Congress making clear that he considers George Bush to be "his client". Isn't it plainly inappropriate for him to be making decisions regarding who should be prosecuted for having exposed his "client's" wrongdoing to the public?

Beyond that, consider the effects of these threats on other people who may be tempted to come forward and expose other serious wrongdoing on the part of the Administration. They hear that the Justice Department is "laying the groundwork for a grand jury inquiry that could lead to criminal charges" -- might that have an effect of intimidation against anyone who might consider blowing the whistle on other forms of serious misconduct by the Bush Administration?

And it isn't just potential whistle-blowers whom they are attempting to intimidate, but journalists as well:

At the same time, conservatives have attacked the disclosure of classified information as a illegal act, demanding a vigorous investigative effort to find and prosecute whoever disclosed classified information.

An upcoming article in Commentary magazine suggests that the newspaper might be prosecuted for violations of the Espionage Act and said, "What The New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism."

So now we're a country which allows its leaders to flagrantly violate the law -- even cheering them on as they do it -- and we imprison the journalists who report that illegal behavior to the public. That sounds like a lot of things. The United States isn't one of them.

The Administration has been making threatening noises like this all week:

[CIA Director Porter] Goss, speaking at a Senate intelligence committee hearing on Feb. 2, said: "It is my aim, and it is my hope that we will witness a grand jury investigation with reporters present being asked to reveal who is leaking this information. I believe the safety of this nation and the people this country deserve nothing less."

Those were the comments about which Dick Cheney remarked on right-wing radio that, while he agreed with them, he thought they were "rather restrained." If Goss' statement that there should be a criminal investigation into the leakers and journalists is too "restrained," what more aggressive measures would Cheney like to see be taken against them?

Whatever one's views are on the NSA scandal, disclosure by The New York Times has accomplished exactly what newspapers are designed to achieve -- ensuring that highly controversial government programs, particularly ones of dubious legality, are subject to public debate and not concealed by the Government. It has long been clear that the Times disclosed only that information necessary to enable such public discussion without disclosing any operational details and without even arguably jeopardizing national security. Indeed, one of the most frivolous claims we've heard from the Bush Administration and its followers is that national security was damaged by the Times' disclosure that the Administration eavesdrops without judicial oversight (rather than with it), and that this disclosure somehow helped Al Qaeda.

For that reason, this flamboyant use of the forces of criminal prosecution to threaten whistle-blowers and intimidate journalists are nothing more than the naked tactics of street thugs and authoritarian juntas. There is much speculation over whether other eavesdropping programs exist, including domestic eavesdropping programs, as well as whether other lawless programs have been authorized based on the Administration's theories that it has the right to wield war powers against American citizens on American soil.

Our hope for finding out about the existence of other illegality depends upon the willingness of whistle blowers to come forward and journalists to investigate and report such misconduct. That is precisely why the Administration is so aggressively seeking to attack and silence those two groups, and it is why the significance and danger of those attempts really can't be overstated.

Posting today

(updated below)

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

In the meantime, two items today -- an article from the Times and a Dana Milbank column in the Post -- highlight the growing (in both numbers and importance) opposition among Republicans to the Administration's illegal eavesdropping program. How ironic, and sad, that some Democrats seem so tentative about confronting the President with regard to his claimed powers of law-breaking at the very same time that many members of Bush's own party are awakening to the real dangers posed by the Administration's actions.

And, as described by Milbank's column, it's particularly noteworthy how true conservative believer Bob Barr was treated like an evil traitor at the Conservative Political Action Conference held this weekend all because he is critical of The President's violations of FISA. Conservatism in some circles really has morphed into The Cult of George Bush, which is why any criticism of the Leader -- even when the criticism is based on conservative principles -- is deemed to be blasphemous to the Cause. This really tells you all you need to know about what "conservativsm" has come to mean in certain circles:

Barr answered in the affirmative. "Do we truly remain a society that believes that . . . every president must abide by the law of this country?" he posed. "I, as a conservative, say yes. I hope you as conservatives say yes."

But nobody said anything in the deathly quiet audience. Barr merited only polite applause when he finished, and one man, Richard Sorcinelli, booed him loudly. "I can't believe I'm in a conservative hall listening to him say [Bush] is off course trying to defend the United States," Sorcinelli fumed.

Even to be subjected to the idea that "Bush is off course" is traumatic and wrong. Such an opinion has no place at a "conservative" event, where only praise and reverence of the Commander-in-Chief is appropriate.

* * * * * * *

My first at C&L is posted here, regarding the remarks of Ann Coulter at the Conservative Political Action Committee's annual event held this last week. Isn't it odd how demands are always made of every Democrat to denounce the latest "extremist" utterings from private citizens such as Michael Moore, Harry Belafonte, or Moveon.org, and yet all of the top GOP officials participate in an event where one of the featured speakers urges violence against "ragheads," Supreme Court Justices and former Presidents -- and not for the first time -- and nobody seems to think there's anything inappropriate about it, and none of the Republican luminaries are asked to denounce those comments or repudiate her?

Until Republicans sever their ties with repugnant hate-mongers like Ann Coulter and Pat Robertson, shouldn't we have a moratorium on demands that Democrats renounce their extremists elements, as well as a moratorium on Republican sermons about the importance for civility in the political arena?

Why this all matters

Here are a few items of interest with a common theme:

(1) Jane Hamsher is crusading to ensure that James Comey, the Deputy Attorney General under both Ashcroft and Gonzales, is called before the Senate Judiciary Committee to testify regarding his views of the legality of the NSA program. I sent her via e-mail my thoughts on this issue, including the excerpt from Gonzales’ exchange with Sen. Schumer which seemed to suggest quite strongly that: (a) Specter intends to call further witnesses, including, at a minimum, Ashcroft, Comey and Jack Goldsmith and (b) those witnesses will not be permitted to testify as to the internal deliberations which took place within the DoJ regarding these programs (on the grounds of executive privilege and perhaps attorney-client privilege), but will be free to state what their views are concerning the (il)legality of the program.

As the exchange with Schumer demonstrates, Gonzales was very meticulous in pointing out that Comey (and Goldsmith) had no objections to the current incarnation of the program, which means they did have objections either to: (a) some prior incarnation or otherwise proposed version of the program and/or (b) some other eavesdropping program. I don’t know what Comey will say, obviously, but he has a well-earned reputation for honesty and integrity, and the more witnesses who testify, the better — both because it keeps the scandal energized and alive and because the more facts that come out, the better.

(2) There are two extremely common legal misconceptions which are almost always spouted by Bush defenders when defending the NSA program: (a) if a President has the "inherent authority" under Article II to engage in warrantless eavesdropping, then this means that Congress is without power to limit or restrict that power (the simplistic Powerline defense); and (b) the AUMF constitutes a declaration of war.

I have spent a fair amount of time setting forth the reasons why both of these myths are false, but hopefully, the fact that Alberto Gonzales just testified that they are both untrue will prevent Bush followers from peddling them in the future.

Here is what he said about a President’s inherent power:

GRAHAM: If you don't buy the force resolution argument, if we somehow magically took that off the table, that's all your left with is the inherent authority. And Congress could tomorrow change that resolution, and that's dangerous for the country if we get in a political fight over that.

All I'm saying is that the inherent authority argument, in its application, to me, seems to have no boundaries when it comes to executive decisions in a time of war. It deals the Congress out, it deals the courts out.

And, Mr. Attorney General, there is a better way. And on our next round of questioning we will talk about that better way.

GONZALES: Can I simply make one quick response?

SPECTER: You may respond, Attorney General.

GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war.

And so if we're talking about competing constitutional interests, that's when you get into, sort of, the third part of the Jackson analysis.

Whenever Bush defenders cite that line of pre-FISA cases which held that the President has inherent authority to engage in warrantless eavesdropping for purposes of foreign intelligence, they frequently imply, and often outright state, that this means that the President can engage in such activities even in the face of a Congressional statute making it a crime to do so. But as Gonzales made clear, to say that the President has the inherent authority to do X does not mean that Congress is without power to limit or regulate X. That is the whole point of Youngstown – that the President cannot exercise even authority he possesses in the face of a Congressional statute where Congress also has authority in that area.

And this is what Gonzales said about whether AUMF is a declaration of war:

GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force.

I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we're not talking about a war declaration. This is an authorization only to use military force.

The DoJ -- somewhere along the line and for strategic reasons that I confess I haven’t been able to figure out fully yet -- decided it was important for them to take the position that the AUMF is not a declaration of war. Thus, according to the DoJ, there has been no declaration of war from Congress as to any of these conflicts. (Someone might want to tell the President, since he, in every speech, continues to say, as he did yesterday: "We remain a nation at war").

(3) The right-leaning Jon Henke at QandO provides further evidence that one need not ascribe to a liberal political philosophy in order to find the Administration’s excesses and deceit repugnant to the values on which this country was founded. Jon points to a new article from National Journal reporting that only a small minority of detainees at Guantanamo had anything to do with Al Qaeda, and that the Administration’s assurances regarding who it was who was detained there were fundamentally false. As Jon concludes:

This is why we have due process. This is why we have transparency. This is why a free people who want to remain that way ought to insist we apply due process and transparency even to suspected terrorists. Instead, we've largely stood by while the Bush administration has run roughshod over innocent people; while the Bush administration detained innocent civilians and lawful combatants, and abused them into false confessions. And then that administration had the temerity to say that legislation removing legal recourse by those people "reaffirm[s] the values we share as a Nation and our commitment to the rule of law"....

Remember: the people who told us that the detainees at Guantanamo Bay were all Taliban, captured on the battlefield or otherwise terrorists are the same people who swear, really, that the domestic surveillance program is "solely for intercepting communications of suspected al Qaeda members or related terrorist groups."

A commenter here a few days ago remarked that he never really cared about political issues until recently, but has almost been forced into caring by the radical and extremist measures taken by the Administration, which truly threaten our most basic political values. I feel the same way. I am far more engaged politically now than I was, say, five years ago, because I really perceive that not just political differences, but the kind of country we fundamentally want to be, is what is at stake in our current controversies.

I fully share these sentiments expressed the other day by Hilzoy at Obsidian Wings:

I have spent my life loving this country for its values, among them the right not to be tossed in jail at the whim of some ruler, but to be guaranteed the right to live free from searches, wiretapping, surveillance, and arrest unless some official could convince a judge that there was probable cause to believe that I had committed a crime. I could scarcely believe it when Padilla was locked up: I was as shocked as I would have been had Bush asserted the right to ban Lutheranism, or to close down the New York Times. It was such a complete betrayal of our country's core values that it took my breath away.

I feel the same way about the NSA story.

I couldn’t agree more. For me, the real trigger - the final straw - was the due process-less but indefinite detention of U.S. citizen Jose Padilla in a military prison with no access to lawyers or even charges of any kind, while the Administration argued that he no right to even have a court review his detention, which occurred on U.S. soil. To me, nothing is more un-American than that – nothing.

And the rationale on which those actions were predicated are exactly the same as the rationale on which warrantless eavesdropping and a whole host of other excesses are predicated. If someone isn’t opposed to these things and isn’t willing to fight against them, it’s hard for me to see how someone can claim to believe in the values and traditions of this country.

Al Qaeda has a good friend in the White House

The great big mystery of the day is what caused the White House to decide yesterday to disclose the classified details of George Bush's heroic salvation of the City of Los Angeles four years ago? People everywhere are scratching their heads in bewilderment -- why yesterday? What could possibly have caused the President to pick yesterday as the time to suddenly reveal the specifics of the diabolic plot by the terrorists to hijack an airplane into the Liberty Tower by putting bombs into their shoes?

Whatever his reasons were for disclosing this information, there is no need for us to know what it is. It goes without saying that the Commander-in-Chief decided to disclose this at this time because doing so was necessary for our protection, and by questioning his motives, all we do is embolden the enemy and make terrorists attacks more likely, something to which I, for one, have no desire to contribute. So I'll just celebrate the Great Rescue along with my fellow grateful citizens.

Amidst the celebrations, though, one can't help but marvel at just how ridiculous and inane these scary terrorist plots appear to be even when they are deliberately depicted so as to achieve the maximum possible scare value. Here is how the President described the plot:

We now know that in October 2001, Khalid Shaykh Muhammad -- the mastermind of the September the 11th attacks -- had already set in motion a plan to have terrorist operatives hijack an airplane using shoe bombs to breach the cockpit door, and fly the plane into the tallest building on the West Coast. We believe the intended target was Liberty [sic] Tower in Los Angeles, California.

The very notion that someone was going to breach the cockpit door of an airplane by detonating a shoe bomb is so absurd that even the journalists who cover The White House noticed it and objected:

Q Scott, I wanted to just ask a follow-up about the LA plot. Is there something missing from this story, a practical application, a few facts? Because if you want to commandeer a plane and fly it into a tower, if you used shoe bombs, wouldn't you blow off the cockpit? Or is there something missing from this story?

MR. McCLELLAN: I don't know what you're referring to about missing. I mean, I think we provided you a detailed briefing earlier today about the plot. And Fran Townsend, our Homeland Security Advisor, talked about it. So I'm not sure what you're suggesting it.

Q Think about it, if you're wearing shoe bombs, you either blow off your feet or you blow off the front of the airplane.

MR. McCLELLAN: There was a briefing for you earlier today. I think that's one way to look at it. There are a lot of ways to look at it, and she explained it earlier today, Alexis, so I would refer you very much back to what she said, what she said earlier today.

And then there were the geniuses who planned to "blow up" the Brooklyn Bridge using blow torches (only to be miraculously thwarted by our warrantless eavesdropping program), a plot which Bob Barr described thusly: " this so-called plot to blow up the Brooklyn Bridge was bogus because it had to do with a group of idiots who were planning to dismantle it with blow torches." The more we hear about these scary terrorist plots, the more Al Qaeda resembles The Three Stooges rather than, say, Lex Luthor.

The reality is that the White House doesn't care how transparent their manipulation of terrorist threats is, because this manipulation is not aimed at our rational faculties. What they want is for there to be scary pictures constantly flashed on the television screen of Muslims wearing ski masks with ground-to-air missiles on their shoulders and prolonged shots of our tall buildings and hastily arranged news conferences by city officials talking about security measures and faux terrorism experts parading around on TV talk shows with gravely concerned expressions as they warn us, yet again, of all the different ways that we are at risk.

Unleashing all of those images over and over triggers, as intended, fresh waves of fear that we are all about to be blown up or zapped with radiation. How absurd the underlying facts are is irrelevant; anything that serves as a pretext for new waves of frightening images does the trick just fine.

This is really the aim and the work of the terrorists -- to keep the targeted population in the grip of fear. Here is how the Department of Defense describes the defining goal of terrorism:

"the calculated use of unlawful violence or threat of unlawful violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological."

Terrorists don't expect to achieve their goals through the physical destruction of a society using violence, the way a nation at war attempts with its military. The violence inflicted by terrorists is simply a tool for ratcheting up the fear level, and the fear of the violence, rather than the violence itself, is the primary tool of the terrorist. The greater the fear of the targeted population, the closer the terrorists are to achieving their goals.

When it comes to Al Qaeda's targeting of the U.S. in this manner, nobody helps the terrorists achieve those objectives more than the Bush Administration, which (like Al Qaeda) really does have as its principal goal -- particularly in an election year, and particularly when it faces all sorts of political difficulties on an array of fronts -- keeping the fear level as high as possible. The more frightened people are, they believe, the more likely they are to support the President and his party. And so fear-mongering becomes the first and really only political weapon they have.

The orange alerts aren't really that effective any more. Orange is so un-scary. But tales of thwarted terrorist attacks on our cities always give rise to the same set of images and warnings which keeps the fear level nice and fresh and edgy. It's only February -- I have no doubt we will be treated to many, many more episodes like this. The question is, with 9/11 now more than 4 years away, is there some limit to the water in this well?

A Catch-22 for the Administration

(updated below)

This article by The Washington Post's Dan Eggen (who, as I've said before, has been one of the best journalists by far covering this story) analyzes one of the truly inexplicable aspects of the Administration's rationale for its warrantless eavesdropping program -- namely, why the program is limited only to international calls.

If, as the Administration claims, FISA is too stringent and burdensome to enable the "speed and agility" we need to keep up with the lightning-fast communications of Al Qaeda, and if (as the Administration constantly claims) Al Qaeda has sleeper cells within the U.S. similar to those which perpetrated the September 11 attacks, what possible excuse could there be for applying the FISA-bypass program only to international calls while allowing Al Qaeda to communicate freely within our country?

Here is what Gonzales said about this on Monday when questioned by Sen. Kohl:

KOHL: Just to go back to what Senator Biden and then Senator Kyl referred to about Al Qaida-to-Al Qaida within the country, you're saying we do not get involved in those calls...

GONZALES: Not under the program in which I'm testifying, that's right.

(CROSSTALK)

KOHL: It seems to me that you need to tell us a little bit more because to those of us who are listening, that's incomprehensible. If you would go Al Qaida-to-Al Qaida outside the country -- domestic- outside the country but you would not intrude into Al Qaida-to-Al Qaida within the country -- you are very smart, so are we, and to those of us who are interacting here today, there's something that unfathomable about that remark.

GONZALES: Well, Senator, we certainly endeavor to try to get that information in other ways if we can. But that is not what the president...

KOHL: No, but isn't -- we need to have some logic, some sense, some clarity to this discussion this morning.

GONZALES: Senator, think about the reaction, the public reaction that has arisen in some quarters about this program. If the president had authorized domestic surveillance, as well, even though we're talking about Al Qaida-to-Al Qaida, I think the reaction would have been twice as great.

And so there was a judgment made that this was the appropriate line to draw in ensuring the security of our country and the protection of the privacy interests of Americans.

KOHL: I appreciate that. And before I turn it back to the -- but yet the president has said with great justification, he's going to protect the American people regardless.

KOHL: And if there's some criticism, he'll take the criticism.And yet you're saying Al Qaida-to-Al Qaida within the country is beyond the bounds?

GONZALES: Sir, it is beyond the bound of the program which I'm testifying about today.

This exchange can mean only one of two things: either (1) the President decided not to pursue measures (i.e., FISA-bypass eavesdropping on domestic communications) which he believes are vital to our national security because doing so would have subjected him to criticism from "some quarters," or (2) the Administration, contrary to the repeated and unequivocal assurances from the President, is engaging in warrantless eavesdropping on purely domestic communications as part of some eavesdropping program other than the one disclosed by The New York Times.

In a separate article published the day after the hearings, Eggen reported this:

Gonzales chose his words carefully, frequently limiting his answers to "this program" or to "the program the president has confirmed." At one point he said senior Justice Department officials, whose concerns about the program contributed to a temporary halt in surveillance in 2004, did not raise objections to the program he was discussing.

A department official said after the testimony that Gonzales was not implying that any other program existed.

When the Justice Department says that "Gonzales was not implying that any other program existed," that is not, of course, tantamount to stating that no other program exists. As I've noted before, every time Gonzales or the DoJ has issued assurances that eavesdropping is confined only to international calls where one of the parties is an Al Qaeda affiliate, the assurance is always limited by the conspicuous and intentional limitation: "under the program described by the President." Gonzales used that same phrase repeatedly when testifying, and there is simply no doubt that this phrase is carefully crafted and deliberately invoked. There is some reason why they are limiting their assurances in that fashion.

This should be a very difficult corner for the Administration to get out of. Both options are unattractive. It is self-evidently inexcusable for the President to forego measures he believes are vital to the protection of Americans simply because (as Gonzales said Monday) pursuing those measures would provoke some criticism. But it would be equally damaging to the Administration, at least, if it turns out that there are programs which entail warrantless eavesdropping on the domestic communications of Americans.

If there is one thing which Americans likely have ingested from the Administration's defense of itself in this scandal, it is that the only calls subject to warrantless surveillance are international. It would be a huge blow to the Administration if it turns out, as Gonzales is clearly implying, that there are other programs which entail warrantless surveillance of purely domestic communications.

Either the Administration is purposely allowing Al Qaeda to communicate freely within the U.S. without meaningful surveillance (i.e. surveillance that is not bogged down by those obstructionist, cumbersome FISA requirements) , or the President repeatedly lied when he assured Americans that no domestic communications were being listened to without warrants. A third option doesn't appear to exist for the Administration.

UPDATE: Although there are multiple times when Gonzales strongly implied that there were other eavesdropping programs beyond what "the President confirmed," the following exchange between Gonzales and Sen. Schumer provides an almost absolute assurance from Gonzales that there is no warrantless eavesdropping program for domestic communications:

SCHUMER: Would he engage in electronic surveillance when the phone calls both originated and ended in the United States if there were Al Qaida suspects?

GONZALES: I think that question was asked earlier. I've said that I don't believe that we've done the analysis on that.

SCHUMER: I asked what do you think the theory is?

GONZALES: That's a different situation, Senator. And, again, these kind of constitutional questions -- I could offer up a guess, but these are hard questions.

SCHUMER: Has this come up? Has it happened?

GONZALES: Sir, what the president has authorized is only international phone calls.

SCHUMER: I understand.

Gonzales' unambiguous claim here that the Justice Department has not conducted a legal analysis as to whether the Administration could engage in warrantless eavesdropping on purely domestic communications certainly would seem to preclude the existence of a domestic eavesdropping program. Particularly since Gonazles acknowledged that domestic eavesdropping is a "different situation" which presents "hard questions," a pre-requisite to the commencement of such a program would be for the DoJ to opine that such surveillance was legal and constitutional.

Gonzales' denial that the DoJ has ever engaged in such a legal analysis is tantamount to an unambiguous denial that there are eavesdropping programs which entail warrantless surveillance on domestic communications. That fact leads back to the question as to why the President, who believes that we cannot engage in adequate surveillance if we stay within FISA, would leave Americans vulnerable and unprotected by restricting his FISA-bypass program only to international calls, thereby handing Al Qaeda the ability to communicate freely and undetected within our borders. What kind of President would fail to take measures vital to our national security simply because -- as Gonazles claimed when asked why there was no domestic surveillance -- he would be subject to criticism from "some quarters."

Asking this question is not a coy tactic. If the President really believes that we can't engage in effective surveillance of Al Qaeda under FISA, isn't it a profound dereliction of his responsibilities not to extend the FISA-bypass program to domestic communications? There is no theoretical or legal difference between international calls and domestic calls in this context, so it seems that the only possible explanation for his failure to do this is exactly what Gonzales said - he was afraid to be criticized for doing it, so he opted instead to allow Al Qaeda to communicate within the U.S. without detection.

C-SPAN debate

(updated - link is now working)

For anyone interested, C-SPAN has the video of the full debate over the NSA scandal between myself and University of Virginia Professor Robert Turner, which took place on last Monday's Washington Journal show. The video clip can be found here. (UPDATE: Link is now working - C-SPAN's site is apparently down and I will update the post when it is working again).

Once you are on that page, you click on this:

Robert Turner, Univ. of Virginia Law School & Glenn Greenwald, Constitutional Law Attorney Robert Turner, Univ. of Virginia Law School, Associate Director, Center for Nat'l Security Law & Glenn Greenwald, Constitutional Law Attorney discuss the Senate Judiciary Committee hearings on domestic surveillance that starts later today. 2/6/2006: WASHINGTON, DC: 45 min.

They constantly add new content so you may have to click to the next page to find that segment.

If nothing else, the comments from some of the callers -- my favorite being the woman who said that anyone who is opposed to Bush's law-breaking should have been in the World Trade Center on September 11 instead of the "decent Americans" who died -- is reason enough to watch.

* * * * *

A commenter here posted a portion of the transcript from a Bush Press Conference from, I believe, 2002, in which the President said that there was no way for the Administration to have prevented the 9/11 attacks. Despite having just read through 500 or so comments, I was unable to find the comment that has the cite. If anyone has the link to that Press Conference (or another link where Bush made similar comments), I would appreciate it if you could please e-mail it to me or post it in the comments section.

The NSA fight begins - strategies for moving forward

(Cross-posted on The Huffington Post)

For those expecting the first day of the NSA hearings to be the culmination of this scandal or to produce made-for-TV smoking guns, Monday was anti-climactic. Alberto Gonzales diligently displayed his principal, defining attribute – a willingness to advocate each and every pro-Bush defense with a degree of blind loyalty that is staggering and, even for Washington, truly rare in its slavish purity. The Justice Department had previously issued multiple, lengthy documents setting forth the Administration’s legal defenses of Bush’s NSA program, and Gonzales did little more than monotonously recite those scripted points. In response to questions calling for him to deviate from the script, he either refused to answer or claimed he was unable to do so.

Although lacking in grand drama, Gonzales’ testimony marks the beginning, not the end, of this scandal. How this scandal will be resolved is very much still to be determined, and its resolution depends exclusively on the course of action chosen by Bush opponents. Gonzales' defense of George Bush creates several potent opportunities to ensure that the Administration is held accountable for its repeated and deliberate acts of law-breaking.

Discussions among Bush opponents about what the next steps ought to be have centered around procedural events such as appointment of a Special Prosecutor or the issuance of subpoenas for additional witnesses to be called before the Judiciary Committee. But none of those procedural steps, either standing alone or even aggregated together, is anywhere near sufficient to further this scandal or even to sustain public interest in it.

Absent some sort of smoking gun discovery that there has been a clear and deliberate pattern of abuse of these eavesdropping powers (either as part of this program or some other as-yet-undisclosed program), we now have most if not all of the truly relevant information that exists with regard to this specific NSA eavesdropping program.

Thus, to compel the Administration to face real consequences for their unlawful actions, Bush opponents must do something they virtually never do -- agree on a limited set of clear, focused and principled points, and then activate every instrument of public persuasion which exists, and invent new ones which do not exist, to convey the formulated argument in a coordinated fashion. If that is done, Americans can be convinced that the actions of the Administration and the theories of presidential power they have embraced are deceitful and dangerous, and that these actions constitute a profound assault on the political values on which America was founded and which has made our country both unique and great for the last 225 years.

The war over this scandal is not going to be won in the comfort of courtroom arguments as part of some litigation, nor is it going to be won because some Republican Senators decide – for the first time in five years – that their loyalty to the law or to the country outweighs their loyalty to George Bush. The Administration will be held accountable for its illegal conduct here if and only if Americans becomes convinced that the Administration’s actions were wrongful and deserve punishment. And that, in turn, will happen only if Bush opponents formulate an effective and coordinated strategy for making this case directly to Americans, and then articulate those principles aggressively and passionately.

The case that ought to be made need not and should not depend upon the types of overly calculating and manipulative message manufacturing in which our political consulting class so relentlessly (and unsuccessfully) traffics. This scandal resonates so passionately with so many people because it implicates our most basic political principles. For that reason, any campaign to persuade Americans of the seriousness of this scandal must, in my view, be rooted in that passion and adhere unapologetically to those principles. Following are a few of the types of arguments and approaches which I believe could be powerful and effective:

(1) The President is now claiming, and is aggressively exercising, the right to use any and all war powers against American citizens even within the United States, and he insists that neither Congress nor the courts can do anything to stop him or even restrict him.

It is true, as many have been pointing out, that this scandal, at its core, is about the rule of law -- about whether the President has the right to break the law. But it will not suffice to rely upon that slogan because Gonzales has now articulated a clear response to it: namely, he has claimed that they did not break the law because there are legal authorities and legal theories that allowed them to do what they did.

They then parade around lawyers such as Gonzales and others to spout esoteric legalisms and, as intended, the impression is created that this is nothing more than a mind-numbingly complex lawyer dispute to be resolved with legal briefs in court. If all we say is "the President broke the law" and they say "no, we adhered to the law," nobody will be persuaded either way.

It is undeniably true that Gonzales, in his testimony, articulated a clear and coherent legal theory to defend Bush’s violations of the law. But that legal defense is so radical, so dangerous, and so contrary to our most basic political values, that the first priority, in my view, is to make Americans aware of exactly what powers the Administration claims it has the right to use -- not just against Al Qaeda, but against American citizens, within the United States.

The Administration’s position as articulated by Gonzales is not that the Administration has the power under the AUMF or under precepts of Article II "inherent authority" to engage in warrantless eavesdropping against Americans. Their argument is much, much broader -- and much more radical -- than that. Gonzales' argument is that they have the right to use all war powers – of which warrantless eavesdropping is but one of many examples – against American citizens within the country. And not only do they have the right to use those war powers against us, they have the right to use them even if Congress makes it a crime to do so or the courts rule that doing so is illegal.

Put another way, the Administration has now baldly stated that whatever it is allowed to do against our enemies in a war, it is equally entitled to exercise all of the same powers against American citizens on American soil. In a Press Release issued on January 27, the DoJ summarized its position on the legality of its actions this way:

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.

Gonzales took that argument even one step further on Monday by claiming that even in the absence of the AUMF, Article II of the Constitution gives the President the right to employ all "incidents of war" both internationally and domestically – which means that even if Congress repealed the AUMF tomorrow, the Administration, by this view, would still have the absolute and unchecked right (under Article II) to use all war powers against American citizens. Indeed, it claims that it would have those war powers even if Congress passed a law prohibiting the exercise of those powers against Americans.

The "war powers" which a President can use in war against our enemies are virtually limitless -- they include indefinite detention in prison with no charges or access to lawyers, limitless eavesdropping, interrogation by means up to and perhaps including torture, and even killing. The reason the Administration claims it can engage in warrantless eavesdropping against Americans is because it has the general right to use all of these war powers against Americans on American soil, of which eavesdropping is but one example. Without hyperbole, it is hard to imagine a theory more dangerous or contrary to our nation’s principles than a theory that vests the President -- not just Bush but all future Presidents -- limitless authority to use war powers against American citizens within this country.

Critically, these claimed powers are not purely theoretical or, as Gonzales claimed in response to questions from Sen. Feinstein, "hypothetical." Quite the contrary. Not only has the Administration claimed these powers, they have exercised them aggressively -- not just against Al Qaeda, but against American citizens.

In my view, the single most significant and staggering action of the Bush Administration – and there is an intense competition for that title, with many worthy entries – is the fact that the Administration already has detained an American citizen on American soil (Jose Padilla), threw him into a military prison indefinitely, refused to charge him with any crime, and refused even to allow him access to a lawyer, and then kept him there for several years. Then, the Administration argued that federal courts are powerless even to review, let alone limit or restrict, the Government’s detention of American citizens with no due process.

And to justify this truly authoritarian nightmare – being detained and locked away with no due process by your own Government – the Administration relied upon precisely the same theory which Gonzales advocated on Monday to justify the Administration’s warrantless eavesdropping on Americans. Like warrantless eavesdropping, indefinite detention is a "war power," and the Administration therefore claims that it has the right even to detain American citizens with no charges, and nothing can limit or stop that power.

If the American people decide through the Congress that we do not want the Government to be able to use those war powers against us -- as, for instance, we did in 1978 when we, through our representatives, enacted FISA, or when we enacted legislation last December banning the use of torture -- do we really have a system of Government where the President can literally ignore that, violate the laws that we enact, and then use those war powers against American citizens in the face of laws prohibiting it?

Under the Bush Administration, that is the country we have become. Alberto Gonzales spent 8 hours on national television the other day justifying why we must be a country which lives under a system which operates in that manner. That is a system of government wholly foreign to how Americans understand their nation and how our nation has always functioned. There is no more important priority than making as clear as possible to Americans just how broad and truly radical are the powers claimed by this President.

(2) This scandal is not about liberalism or conservatism, but is about core American political values.

There are scores of prominent conservatives and conservative organizations vigorously opposed to the Administration’s actions, and every public event and campaign should include them in order to prevent this scandal from being (falsely) depicted as the by-product of liberal softness on terrorism or personal hostility towards the President. There are multiple ways to achieve this and several reasons why doing so is vitally important.

Having Bob Barr introduce Al Gore’s passionate anti-tyranny speech, sponsored by a libertarian group, is a perfect illustration of how this can and should be done. Former Reagan Justice Department official and hard-core conservative Bruce Fein wrote an Op-Ed in The Washington Times urging that Bush be impeached if the Administration did not immediately cease its illegal eavesdropping. The media is starting to become aware of this trend, and bloggers can and should demand retractions from any journalist who falsely characterizes opposition to the Administration’s law-breaking as "Democratic" or "liberal."

This approach is not a cynical tactic designed to create a false appearance of bipartisanship -- such as when Bush defenders parade Joe Lieberman around as "proof" that the "serious Democrats" support the Administration’s terrorism policies. Conservative opposition to the Administration on these issues is not merely comprised of a handful of token or conflicted conservatives. Opposition to the Administration’s law-breaking among conservatives is substantial and it is growing. And it is easy to understand why this is so – the Administration’s theories of presidential power are repugnant to many core principles of true conservatism, from the supremacy of the rule of law to the importance of restraining the powers of the Federal Government (as the Founders intended), particularly when it comes to those powers which can be wielded by the Government against American citizens.

Importantly, this is not a case where liberals and conservatives arrive coincidentally at the same place despite beginning from radically different premises -- the way, say, Pat Buchanan’s isolationist theories just coincidentally lead him to the same anti-war views as certain pacifists on the Left. Here, the basis for opposition to the Administration’s action among liberals, conservatives and everyone in between comes from exactly the same set of principles and beliefs -- namely, that what is at stake in this scandal is whether America will continue to live under the principles of law and the system of government on which our country was founded and which has kept us both strong and free.

For that reason, the extremist theories adopted by the Administration present a unique opportunity to forge powerful alliances in the fight against the naked lawlessness which is being foisted upon us – a lawlessness which transcends, and is not a part of, any mainstream American political ideology. The Administration’s actions here do not contravene liberal principles or conservative principles per se, but really, more than anything else, are simply un-American, and that is why there is such a diverse and broad-based revulsion to their actions.

Contrary to the central deceit manufactured by Bush followers over the last five years, patriotism is not defined by loyalty to a particular elected official. Indeed, excess loyalty to a single individual is the very antithesis of patriotism, as it places fealty to that individual over allegiance to the country, its interests and its values. Patriotism is measured by the extent to which one believes in, and is willing to fight for and defend, the defining values and core principles of our country.

Americans will understand this appeal if it is made forcefully and clearly -- with conviction -- because these values are neither esoteric nor abstract. They are instilled within all of us by virtue of growing up and/or living here. That is the language we need to use to speak about this scandal. This scandal is not about George Bush or eavesdropping. It really is about who we are as a nation and whether we want to preserve our core political values.

We should not only be willing, but eager, to seek out conservative, libertarian and independent allies in this fight. Doing so will destroy the deceit that this scandal arises out of liberal opposition to Bush or aggressive counter-terrorism measures. But much more importantly than that, these nonpartisan efforts will highlight the true threats to our nation posed by the Administration’s conduct.

(3) Do we want to radically change the way our Government works for the next several decades all because of Al Qaeda?

America is a country that has faced numerous, grave external threats in its history – including several which threatened the very existence of our nation. The strength and genius of our country is that we defeated each of those threats without ever needing to abandon our founding principles by vesting the type of unchecked and overriding authority in a President which George Bush has now seized. Indeed, FISA itself, which Bush claims he has the right to violate on account of Al Qaeda, was enacted by Congress and signed into law by the President in 1978 -- at the height of the Cold War, when we faced a threatening and powerful Soviet Union.

Are we really now a country that is going to discard American political principles -- all for Al Qaeda? Bush opponents can and ought to emphasize that the greatness of America has always been that we adhere to the principles on which our nation is based even while we confront and defeat external threats. We have never needed to vest the type of unlimited power in a President which George Bush is demanding, nor have we ever needed to relinquish the basic constitutional principles of our country in order to defeat our enemies.

We remain a strong country -- and we become stronger -- not by allowing Al Qaeda to force us to abandon the defining principles and values of our country, but by defeating Al Qaeda and any other threats while insisting that our Government abide by the constitutional structure and principles on which our country is based.

The foregoing are merely proposals for how the seriousness of this crisis can be conveyed to Americans. There are other important points as well (such as the fact that the Administration always expressly recognized the validity and constitutionality of FISA -- indeed, Bush even requested and then signed into law amendments to FISA -- and they only suddenly began claiming that FISA was unconstitutional once they got caught violating it and needed a defense for their law-breaking).

But whatever arguments are selected, what matters is that there be a coordinated, comprehensive, and full-fledged campaign to persuade the public of the importance of this scandal – not by relying on legal processes or the standard media machinations, but by implementing a campaign designed to allow Bush opponents to control our own message and communicate directly to Americans. In my view, whether this can be accomplished will, far more than any other factor, determine whether the Administration is held accountable for their law-breaking or whether this scandal will join the countless others which meekly and inconsequentially fade away into the attention-deficit media whirlpool.

Blogging today

(update)

My field trip to Washington has come to an end and I'm going to be travelling for a good part of the day back home. As a result, it is unlikely that I'll be able to post further today, including the post I am working on regarding the possibilities for the future path of the NSA scandal (I will probably be able to post that only tomorrow).

Regular blogging will resume tomorrow.

UPDATE: As some of you likely know, I did not appear on NPR today to debate the Powerline adult who calls himself "The Rocket" due to a miscommunication (on the part of NPR's producers) over whether the appearance was confirmed (it was). My regret at not being able to appear on NPR generally today is vastly outweight by my regret at not being able to pose the questions I had ready for The Rocket who, among his other intellectually dishonest attributes, almost always refuses to engage criticism of the arguments he advances on his blog. He wouldn't have had that evasive prerogative on the NPR debate. I hope that whoever replaced me was sufficiently aware of how fundamentally false the Rocket's legal defense is of the President's warrantless eavesdropping, and how corrupt the Rocket undoubtedly was in advocating those defenses.

Follow-up to the hearings

I wasn't able to live-blog as much of the hearings as I intended because Blogspot had some periodic problems and I did several radio interviews during the hearings. But the Comments section was certainly vibrant and full of excellent analysis.

I thought that when I debated Professor Turner this morning, I had confronted the most extreme end of the pro-Bush fantacism. But I was mistaken. Tomorrow at 2:10 p.m. EST, I'll be on NPR's To the Point to discuss the NSA hearings with Powerline's John Hinderaker. John is confused that there are any hearings at all, because there is nothing to discuss; it's so clear that the President had the right to eavesdrop outside of FISA that there's no issue at all. I'm looking forward to that discussion.

I'm working on a post regarding my view of today's hearings and where I think we go from here, which I'll have posted somewhat later. I thought today was most notable for its lack of surprises. The Democrats did better than they did at Alito but not great. The Republicans did not fail to display their fundamental Bush loyalty. And Gonzales recited his script quite faithfully, with a few exceptions. The Administration has baldly stated its view that the President has the power to exercise all incidents of war - including against Americans within the U.S. - without any interference from the courts or congress. That view is now out in the open for all to see.

Thus, in the absence of the emergence of smoking gun evidence reflecting abuse, where this scandal goes from here will, I believe, depend on what the media does with it and what the public is tolerates and demands.

Live blogging the NSA hearings

The logistics of live-blogging from the Committee room were too complicated, so I am live-blogging the hearings off-site. I may be able to do it from the Committee room itself for the afternoon session, but I'd rather have full blogging abilities outside of the room than be in the room.

I understood that Gonzales was going to be sworn in. Apparently, Specter decided that he did not want him to be. I think that's a good debate to begin with -- why are Republicans so eager to avoid putting Gonzales under oath ? He's testifying as a fact witness, and his prior statements at issue -- including his false assuarances to Sen. Feingold at his confirmation hearings -- were under oath, so this testimony should be, too.

* * * * *

Feingold is doing exactly what he should be doing - creating a hostile and confrontational atmosphere, rather than a boringly congenial one where the Democrats meekly accept everything (see the Alito hearings). Feingold has been seriously heroic on several of these issues, and it is excellent to see him continuing that right from the beginning at these hearings.

* * * *

As I said last night, if you have hope for Specter's independence and objectivity, just make it easy on yourself and give up those hopes and accept that he is going to be a shill for the Administration. If you are looking for Republican scrutiny, look to Brownback and, to a lesser extent, to Graham.

* * *

Of course Gonzales begins his Opening Statement by quoting Osama bin Laden and Zawahri. We used to quote Madison, Jefferson and Lincoln to decide what the principles of our Government are going to be. Now we quote Al Qaeda. The Administration wants Al Qaeda and its speeches to dictate the type of Government we have. It is the centerpiece of everything they do and say.

* * * *

Gonzales is smug and thinks he can just spew the standard Bush talking points about defending the nation and Al Qaeda. I think he's going to have to do more work than that here (if he can) to satisfy the Senators.

Can someone please tell Arlen Specter that even if they're only eavesdropping on Al Qaeda members talking to Americans, it's still against the law to do it without warrants, and that it's exactly then when it would be incredibly easy to get warrants from the FISA court?

* * * *

Gonzales clearly said in his Press Conference with Gen. Hayden that they were told that they could not get the amendments to FISA they wanted. He's now falsely claiming that all he meant was that they couldn't get those amendments without disclosing national security secrets.

It's interesting how they keep having to "clarify" their statements becasue the statements they made statements which were false.

It's also ludicrous that FISA couldn't have been amended without disclosing operational details. Senators introduced amendments to amend FISA and the Administraiton supported certain of those amendments, and even proposed some of their own.

* * * *

Leahy's anger is excellent, real and poignant. As always, the Administration wants to imply that only they care about 9/11 and remember it. Leahy has had enough of that - he works in Washington every day, was in the Capitol when 9/11 happened, and everyone should be sick of the Administration's exploitation of 9/11 to defend itself politically. It looks like Leahy is.

* * * *

Leahy makes another crucial point - FISA was amended by the Patriot Act based on the requests of the Bush Administration - Democrats and Republicans got together in the wake of 9/11 to give the Administration everything they said they needed in amended FISA - and then he went and violated it anyway.

* * * *

How funny that Orrin Hatch seems to think that Congress has no right to restrict the President's eavesdropping powers. I wonder why he voted in 2001 to amend FISA to define the restrictions on the President's eavesdropping activities if Congress has no right to regulate them. Voting for FISA seems to be an odd thing to do for someone who believes that Congress has no right to regulate the Executive's eavesdropping activities.

* * * *

Michael DeWine thinks it's too bad that they violated the law, but since they did, maybe they would consider letting Congress change the law to make what they are doing legal. That's very nice and accomodating of him.

Gonzales thinks there's too much annoying paperwork (an inch thick!) to get FISA warrants, so they just didn't. What's the problem?

(I was in a meeting - sorry, I'm back to live blogging)

* * * *

Preview of Sen. Kennedy's questioning tomorrow

For whatever it's worth, I received the following preview from Sen. Kennedy's staff regarding his intentions for questioning Alberto Gonzales at tomorrow's hearings (I'm posting this with their consent):

So as I suggested on Friday – Kennedy is going to take an interesting, unexpected approach in Monday's wiretapping hearings.

First of all, again as we discussed - all Dems on the panel are going to emphasize that they take a back seat to no one when it comes to national security, and they arent going to fall into Karl Rove’s trap that asking questions about a questionably illegal program is similar to handing the terrorists our playbook.

But Kennedy will take that further by questioning Gonzales about the effectiveness of the program from the national security standpoint, believing that this rogue program is harmful because by ignoring around FISA it 1) our national security is actually weakened when the country is divided – and we aren’t protecting those intelligence officials who are working to protect us (if the President’s legal analysis is wrong – these people could go to jail for breaking the law) and 2) raises the risk that terrorist go free - given that the evidence is tainted because it isnt sanctioned by law.

In addition, Kennedy will underscore how willing Congress was/is to give the President the tools he needed, and question Gonzales why they parted with history in deciding to circumvent the time honored (and Constitutionally required) system of checks and balances. He will strongly contend that Congress is willing to work with this administration.

There are documents from the Ford Library detailing Kennedy’s unique role, as the principle author of FISA – including 1) Kennedy’s statement how well the Administration was working with them, including Antonin Scalia who was Assistant Attorney General for the Office of Legal Counsel from 1974-1973 2) how Attorney General Levi supported the law and 3) how important it was for the Adminstration to have Kennedy’s backing. In contrast to this Administration’s lack of trust in Congress – the Republican Administration under Ford actually came to Kennedy and asked him to take the lead on introducing FISA.

Also, as you saw today on MTP, Specter said that nothing in the AUMF mentions electronic surveillance – exactly what resolution offered by Kennedy and Leahy says, S. Res. 350....

I hope you can get people to see that working outside of the system in fact harms our national security. Let me know what you think. And again, thanks for coming over on Friday.

I agree that this is an "unexpected" approach. And the DoJ itself made exactly this point in 2002 when it explained why it opposed the DeWine Amendment - saying that eavesdropping without probable cause would harm national security by jeopardizing prosecutions of terrorists by allowing them to argue that the prosecution is tained by unconstitutional means of obtaining evidence.

I'll reserve judgment otherwise until I see this questioning in action and, more importantly, how it's coordinated (if it is) with questioning by the other members.

The hearings begin

I will be live-blogging the first day of the NSA hearings from the Senate Judiciary Committee hearing room (most likely) all day tomorrow. The hearings begin at 9:30 a.m.

And a reminder - I will be on C-SPAN's Washington Journal tomorrow morning from 7:45-8:30 a.m EST debating the NSA scandal with University of Virgnia Professor Robert Turner, about whom more can be read here. I really appreciate the comments and the e-mail suggestions for this debate. Depending on how the discussion goes, I intend to use a lot of them.

This clip of George Bush should be talked about all week -- why, if the Administration had all the legal authority in the world to eavesdrop without warrants and outside of FISA did it repeatedly make false statements to the public and to the Congress assuring us all that it was eavesdropping only in accordance with FISA? Parties make false statements in order to conceal their behavior only when their behavior is improper and wrong, not when it is justified and legal. And deliberately false statements of that sort from our government officials happen to be unacceptable and wrong, and really constitute a scandal unto itself.

At any point, they could have said -- without disclosing any operational details of any kind -- that they have authority under the AUMF or Article II to eavesdrop outside of FISA. Not only did they fail to do so (even as Congress was debating amendments to FISA based on the (false) assumption that the Administration was complying with it), they affirmatively misled Congress and the public by repeatedly proclaiming that they were complying with the law.

As I've said before, governmental law-breaking scandals are usually comprised of two components -- the law-breaking itself, followed by the false statements to conceal the wrongdoing. The law-breaking has received substantial attention thus far, but the deceitful cover-up has not. That ought to change tomorrow.

I will have long, continuously updated posts tomorrow as part of the live-blogging, so please feel free to leave your thoughts in comments as the hearings progress, where we can maintain an ongoing discussion.

UPDATE: After I wrote what I wrote above regarding the Bush clip, I see that Tim Russert asked Arlen Specter about this today on Meet the Press:

MR. RUSSERT: As you well know, this program began shortly after September 11, 2001. The President, when he ran for re-election in 2004 was up in the great city of Buffalo, New York, on April 20. And this is exactly what he said. Let’s watch.

(Videotape, April 20, 2004)

President GEORGE W. BUSH: Now, by the way, anytime you hear the United States government talking about wire tap, it requires—a wire tap 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.

(End videotape)

MR. RUSSERT: Was that misleading?

Gee, was it misleading? Just because the President said that "anytime you hear the United States Government talking about a wire tap, it . . . requires a court order. Nothing has changed" -- even though the Government had been eavesdropping for years without a warrant when he said this? Here is what Specter said in response:

SEN. SPECTER: Well, it depends on what the President had in mind. I think it’s a fair question for the President. If the President was talking about what goes on domestically in the United States, I think it is accurate. If he had in mind the entire program, including what goes on when one of the callers or recipients is overseas, it’s incorrect.

Anyone with any hopes that Specter is going to act with integrity or objectivity at the hearings should go ahead and accept that that's a total delusion so that you're not disappointed. That is an absurd defense. The President clearly was not talking only "about what goes on domestically in the United States." To the contrary, he specifically said that the Government obtains a warrant "anytime you hear the United States Government talking about a wire tap."

The President said: "I always do X," and Specter, to defend him from charges of lying, is basically saying: "Maybe he meant that he sometimes does X." For Specter to defend the President this way conclusively reflects that Specter, as usual, will make some noises about being indepedent, get everyone's hopes up that he will exercise his own judgment, and then fall back into line slavishly behind the President.

I expect there to be some aggressive and effective questioning from Republican Senators Brownback and Graham, as well as Kennedy, Feingold, and Durbin. Anything else will (pleasantly) surprise me.

UPDATE II: ReddHedd examines some interesting quotes from those who are defending the President, including an excerpt from Newsweek which reports that Sen. Feinstein, in pre-hearing briefings, has been asking the central question -- if the President has the unchecked authority to order eavesdropping on Americans, what are the limits, if any, of these unchecked powers?

Current thoughts on the NSA scandal

The meetings I had with various staff members of Senators on the Judiciary Committee were constructive and enlightening (for me at least). I'm not optimistic that the work we did here is going to have a significant effect on what transpires on Monday, but it's not realistic to think that someone is just going to show up in Washington and suddenly start dictating to Senators what questions they ought to ask and how they should ask them.

Having said that, the fact that we were able to obtain access to high-level staffers in the days before these hearings is an encouraging reflection of the growing recognition that the blogosphere is something they cannot ignore or simply use for their benefit, but instead is a substantive and genuine (and growing) force that needs to be recognized, respected and taken seriously. I think we need to look at this as a mid-range project, not something that will yield immediate, overnight results. We've had lots of successes in the past several weeks, with multiple episodes, in having a real impact on the establishment media and even what happens in DC. But it's going to be an incremental process.

There is a substantial misperception about what the blogosphere is. Most people who don't read blogs regularly (and that is still the case for the overwhelming majority of people, even in journalism and national politics) basically see the blogosphere as being one big online Rush Limbaugh Show -- nothing but uninformed, ignorant, irresponsible, angry populist ranting by the dumb, dirty masses. The more exposure people have to blogs and bloggers, the more that perception will breakdown, because the reality, as people in the blogosphere know, is the opposite -- the discussions, analysis and even reporting in the blogosphere is at a much higher and more substantive level than that which takes place in what they consider to be the "respectable media" venues.

Specifically as to the NSA issue, Monday is only the first day and Gonzales (who will be under oath) is only the first witness (Senate Democrats are essentially unanimous that additional witnesses -- perhaps Comey, Ashcroft, Yoo and others -- need to testify, and Gonzales will likely have to come back both because they won't be done questioning him and because additional documents will likely be released by the Justice Department which they are currently trying to withhold). We should be able to build on the access and contacts we created this time by obtaining even more influential access for the coming days of testimony (I say "we" not in the royal sense, but because the meetings I had were enabled by the work of numerous bloggers and inside-DC types who want to help the blogosphere gain more access and influence).

Regarding the hearings themselves, I have a lot of trepidation about what will happen on Monday, to be honest. Democrats are clearly scared of this issue. They believe that Republicans are going to accuse them of "wanting to give Al Qaeda our playbook" (a phrase several different people used independently) and that those tactics will work to obscure the real issues here. They seem -- at least to me -- to be more frightened than impassioned, more worried about how to avoid looking like Al Qaeda allies than how to question Gonzales in order to prove that the Administration here broke the law and that it is intolerable for the President to break the law.

They are both clearly right and clearly wrong about all of this. They are clearly right that Republicans are going to attempt this. It's already beginning with the full-fledged, coordinated exploitation of terrorism for political gain which Republicans have continuously relied upon since 9/11.

Here is the Vice President on right-wing talk radio making one of the most repugnant and dishonest statements I have heard in some time -- all for the purpose of smearing those who believe that it's wrong for the President to break the law (by, in essence, accusing them of treason) and intimidating anyone who may in the future consider exposing other illegality by the Administration:

With Congress preparing to plunge into a hearing focused exclusively on the warrantless wiretapping, Vice President Dick Cheney said exposing the effort has done ''enormous damage to our national security.'' The New York Times revealed the program's existence in December.

''It, obviously, reveals techniques and sources and methods that are important to try to protect,'' Cheney said. ''It gives information to our enemies about how we go about collecting intelligence against them. It also raises questions in the minds of other intelligence services about whether or not they can work with the United States intelligence service, with our CIA, for example, if we can't keep a secret.''

Cheney said he agreed with CIA Director Porter Goss, who told a Senate hearing on Thursday that such leaks are undercutting U.S. intelligence efforts. ''I thought Director Goss was rather restrained in his comments, but he was absolutely correct,'' said Cheney.

Cheney's remarks came in a radio interview with conservative talk show host Laura Ingraham.

The comments by Goss which Cheney said were "rather restrained" were these:

CIA Director Porter Goss told lawmakers this week that recent disclosures about sensitive programs were severely damaging, and he urged prosecutors to impanel a grand jury to determine ''who is leaking this information.'' The National Security Agency earlier asked the Justice Department to open a formal leaks investigation over press reports of its terrorism wiretaps.

So, to recap: right as the investigation is about to begin into the President's law-breaking, the Vice President goes on talk radio and accuses those responsible for disclosure of this law-breaking (including The New York Times) of causing ''enormous damage to our national security." The Director of the CIA then urges that those responsible for disclosing the President's illegal conduct be criminally prosecuted by the Justice Department (which is controlled by the President's slavishly loyal political appointees), and the Vice President says that, if anything, the CIA Director's comments were too restrained (should he have called for them to be summarily hung?).

This is thuggish behavior of the worst sort. Intimidating and threatening people who expose wrongdoing and illegality are the hallmarks of street gangs and military juntas. The idea that anything meaningful was disclosed when we learned that our Government is eavesdropping without judicial oversight and approval (rather than with it) has always been frivolous on its face. But the statement from Cheney that this disclosure caused ''enormous damage to our national security" is dishonest trash, transparently intended -- on the eve of the NSA hearings -- to stir up populist rage against anyone who blows the whistle on misconduct by the Administration and to intimidate other potential whistle-blowers with threats of criminal prosecution and treason accusations from the highest levels of our government.

Disturbingly, all of this has an effect, even -- perhaps especially -- on the Democrats in the Senate. They are not foaming at the mouth with anticipation for these hearings to be begin. They are approaching it with trepidation and concern about being depicted, yet again, as allies of Al Qaeda -- not just by the boundlessly dishonest and propagandizing Administration, but also by our "neutral" press which fails to convey the actual issues raised by this scandal, and which continues to propagate the false debate that this is about whether we should be eavesdropping on Al Qaeda.

Maybe we'll be pleasantly surprised on Monday and will see some aggressive and meaningful questioning from Senators from both parties who understand that one of their most central constitutional duties is to serve as a check on excesses by the Executive Branch. It was the Senate which was continuously deceived about eavesdropping by the Administration, humiliated into believing that the laws they passed were actually being obeyed rather than ignored, and now face a President who literally claims the right to take action without what he calls "interference" from the Congress. If this assault on the basic principles of our government isn't enough to spur them into meaningful action, their own basic dignity ought to be.

NSA debate on C-SPAN

I'm going to be on C-SPAN's Washington Journal this Monday morning, February 6, before the NSA hearings begin, from 7:45 to 8:30 a.m. I'll be debating the NSA eavesdropping issues with Bush supporter Professor Robert Turner of the University of Virginia.

Professor Turner served in various positions in the Reagan Administration, including as counsel to the President's Intelligence Oversight Board, and is currently a member of the Committee on the Present Danger, which lays in the belly of the neoconservative beast (Its Co-Chairs are John Kyl, Joe Lieberman, George Schultz and James Woolsey, and its other members include Midge Decter, Victor Davis Hanson, Newt Gingrich, Michael Horowitz, Clifford May, Daniel Pipes, Norman Podhoretz, Victoria Toensing and Ed Meese -- the list goes on and on like that, but you get the idea).

In December, Professor Turner wrote a widely celebrated (among Bush followers) Op-Ed in The Wall St. Journal praising the Administration's decision to eavesdrop in violation of FISA on the ground that Congress has no right to limit the President's eavesdropping activities. I'm definitely looking quite forward to the opportunity to have this discussion, particularly since Professor Turner has advocated a rather extreme (and pernicious) view of unchecked executive power. Here is a representative sampling from his Op-Ed:

For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.

Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line. . . .

America is at war with a dangerous enemy. Since 9/11, the president, our intelligence services and our military forces have done a truly extraordinary job--taking the war to our enemies and keeping them from conducting a single attack within this country (so far). But we are still very much at risk, and those who seek partisan political advantage by portraying efforts to monitor communications between suspected foreign terrorists and (often unknown) Americans as being akin to Nixon's "enemies lists" are serving neither their party nor their country. The leakers of this sensitive national security activity and their Capitol Hill supporters seem determined to guarantee al Qaeda a secure communications channel into this country so long as they remember to include one sympathetic permanent resident alien not previously identified by NSA or the FBI as a foreign agent on their distribution list.

Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.

There certainly is a lot to chew on -- and debate -- there. Indeed, his Op-Ed recites virtually the full panoply of the most extreme pro-Bush law-breaking defenses. The good thing about the format for Washington Journal is that it's a 45-minute uninterrupted segment, so it provides ample opportunity for substantive debate, rather than exchanges of short, screeching sound-bites.

And there is a call-in segment, too, so anyone else who has questions for Professor Turner regarding his advocacy of a authoritarian, law-breaking strong presidency can also pose those questions to him directly.

Hearings update

I'm in Washington and have a couple of meetings scheduled this afternoon with staff members of Senate Judiciary Committee members and am trying to have the work we have done here have some impact on how the questioning proceeds on Monday. That's not an easy goal to accomplish, because U.S. Senators are not the most humble bunch and they tend to think they are not in need of much outside input or advice -- including, amazingly enough, even the Senators on the Judiciary Committee who participated in (and were arguably responsible for) the Alito debacle.

But some have been more receptive than others, and there is a (gradually) growing recognition of the value of the blogosphere, not just in terms of its passion and numbers but also the level of substance and seriousness with which debate and analysis occurs here. The staffs and the Senators will be working throughout the weekend (whic