I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, December 20, 2005

A compendium of White House incoherence regarding its lawless surveillance

The most disturbing aspect of this surveillance scandal is not the lawless eavesdropping by the White House on the communications of American citizens, as self-evidently disturbing as that is. More disturbing than even that is the fact that the rationale and explanations provided by the President and his Administration to justify this conduct are so transparently dishonest and insultingly nonsensical that it is clear that we do not have anything close to the real story about what went on here.

The scandal here is not just the illegal surveillance itself, but the fact that the Administration is so plainly lying about what they did and why. Short of smoking gun evidence that someone is lying, which almost never exists, the most compelling proof of dishonesty is when someone’s explanation for their behavior is internally inconsistent and incoherent. Complex lies are difficult to create, particularly when they are subject to rigorous scrutiny, and inconsistencies and incoherence are the hallmarks of such lies. When one finds those in an explanation for what someone did and why, it is almost always proof of the falsehood of the explanation.

The explanations given by the Administration with regard to their warrantless surveillance on Americans simply don’t make any sense. It’s not that they’re unpersuasive or unlikely. It’s that these statements are just plainly incoherent on the most basic logical levels. The Administration engaged in illegal conduct and now is lying about what they did and why, and multiple facts prove that:

(1) President Bush claimed yesterday in his Press Conference that the only American citizens whose communications were subject to warrantless eavesdropping by the Government were "people with known links to al Qaeda and related terrorist organizations."

But at the same time, there have been at least hundreds of people, if not more, who have had their communications invaded by this warrantless surveillance program, and the Administration claimed that one of the reasons why compliance with FISA was impractical was because they had so many people they wanted to eavesdrop on that FISA couldn’t accommodate all of the requests.

But those two claims, taken together, would mean that the Administration has known of the identity and location of hundreds of people, at least, inside the U.S. who have known ties to Al Qaeda but has not arrested them or detained them in any way – instead, they simply eavesdropped on their conversations under this surveillance program but otherwise left them roaming free.

This is an Administration which has incarcerated U.S. citizens in military prisons without charging them with a crime, or even allowing them access to a lawyer, based on suspected associations with Al Qaeda which were tenuous at best. Individuals who have even distant or theoretical and vague connections to Al Qaeda have been detained, arrested and prosecuted in large numbers.

The idea that the Federal Government has known of hundreds of American citizens, if not more, who have actual associations with Al Qaeda – and therefore have been subject to this warrantless surveillance – but not arrested or prosecuted, is just obviously false. Why would the Administration know the identity and location of hundreds of people within the U.S. who are affiliated with Al Qaeda or with Al Qaeda and not arrest them?

Doesn’t this fact, by itself, make conclusively clear that large numbers of innocent American citizens who have nothing to do with Al Qaeda have been subjected to this warrantless eavesdropping? Either that is true, or the Administration has known of the identity of hundreds of people with Al Qaeda connections inside the United States and simply allowed them to remain free. It is simply incredible on its face to claim that this many people inside the U.S. have been subjected to this surveillance while simultaneously claiming that all of them have ties to Al Qaeda.

(2) As many others have noted, the sole justification furnished by the Administration for why it needed to engage in surveillance outside of FISA – as the President put it yesterday in his Press Conference: "We've got to be fast on our feet, quick to detect and prevent" – is so false as to be laughable. FISA was intended, and is structured, to allow warrantless surveillance when the necessity for immediate eavesdropping requires it. Section 1805(f) expressly permits immediate surveillance without a warrant for up to 72 hours, and the law therefore cannot be said to even theoretically impede immediate surveillance. It expressly allows emergency surveillance.

This is really the heart of the matter in terms of whether there was any good faith at all motivating the Administration’s warrantless eavesdropping. Unless the Administration can identify some coherent reason why compliance with FISA would impede legitimate surveillance -- and no such reason has even arguably been provided -- it is as plain as can be that the Administration has not provided its real motive for eavesdropping outside of the authorization of this law.

(3) The Administration claims that its good faith is demonstrated by the fact that it briefed Congressional Democrats as to what it was doing, thereby obtaining their tacit support. Leaving aside the dispute over how much the Administration actually disclosed to them, the fact that these Congressional Democrats were barred by law from even discussing this program with their staffs, let alone publicly objecting to it or taking steps to stop it, renders this defense patently absurd.

Some of the Congressional leaders who were briefed, such as Sen. Rockefeller, did privately object to this program – both on the ground that it seemed lawless as well as on the ground that he was told too little about it to even know what was being done. But sending that secret, impotent, truly pitiful letter was all Sen. Rockefeller or any other Congressional Democrat could do, because they would have been acting illegally had they done anything else.

Indeed, some supporters of the President are now calling for the imprisonment and execution of any the member of Congress who was responsible for bringing this program to light. The President himself has made clear that he wants the responsible leaker aggressively prosecuted by the Justice Department, even if the leaker was one of the Congressional leaders who was briefed. Yesterday, in his Press Conference, he basically accused whoever finally spoke out about this program of committing treason:

There is a process that goes on inside the Justice Department about leaks, and I presume that process is moving forward. My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy. . . .

You've got to understand -- and I hope the American people understand -- there is still an enemy that would like to strike the United States of America, and they're very dangerous. And the discussion about how we try to find them will enable them to adjust. . . . But it is a shameful act by somebody who has got secrets of the United States government and feels like they need to disclose them publicly.

Thus, to hype the fact that Congressional Democrats remained silent even after they were briefed, as the Administration and its enablers are doing (THE PRESIDENT: "We have consulted with members of the Congress over a dozen times . . . There is oversight. We're talking to Congress all the time, and on this program, to suggest there's unchecked power is not listening to what I'm telling you" ), while simultaneously urging that anyone in Congress who failed to remain silent be criminally prosecuted, is so transparently dishonest that it defies belief. The Administration forced these Congressional Democrats to remain silent and are now using that forced silence as evidence of their approval of this program. That reasoning is appallingly corrupt.

(4) The Administration is claiming that it was given authority to engage in warrantless eavesdropping outside of FISA by the Congress when the Congress authorized force in Afghanistan. But as was astutely pointed out yesterday, Attorney General Gonzalez – in response to the obvious question as to why the Administration failed over the last 4 years to seek changes in FISA if it thought FISA was inadequate – replied that they tried to do that but then stopped when they realized that they couldn’t get the changes they wanted from Congress:

GONZALEZ: That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

To assert with one breath that Congress gave authority to eavesdrop on American citizens outside of FISA, only to then acknowledge with the other breath that they tried to get Congress to give this authority but realized that Congress would not, is about as contradictory as it gets. Just as a matter of basic logic, shouldn’t Gonzalez’ admission that the Administration tried but failed to get approval from Congress for this warrantless surveillance preclude their claim that Congress approved it?

Explanations as incoherent and facially incredible as these are simply not what one hears from someone who is telling the truth. Whatever it was that motivated the Administration to eavesdrop outside of the extremely permissive FISA parameters, and whatever it is that they did when engaging in this surveillance, still remain to be discovered. The only thing that is clear at this point is that the Administration’s explanations tell us nothing about what really went on and why.

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