Unclaimed Territory - by Glenn Greenwald


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, January 31, 2006

Follow-up on the Gonzales questions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Administration’s pattern of deceit re: eavesdropping

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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


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

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


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


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

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

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

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

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


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


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


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


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

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

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

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

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

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

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

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

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

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

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

Monday, January 30, 2006

Items of interest

A few noteworthy matters:

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

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

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

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

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

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

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

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

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

"Joe Schmoe- Unlicensed Faith Healer."

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

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

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

Questioning the Attorney General

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

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

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

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

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

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

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

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

Questions 1-5

Question 1

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

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

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

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

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

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

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

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

Question 2

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

Question 3

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

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

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

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

Question 4

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

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

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

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

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

With regard to this paragraph in the signing statement:

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

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

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

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

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

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

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

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

Question 5

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

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

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

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

Questions 6-10

Question 6

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

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

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

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

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

Question 7

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

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

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

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

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

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

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

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

Question 8

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

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

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

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

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

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

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

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

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

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

Question 9

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

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

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

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

Question 10

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

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

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

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

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

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

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

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

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

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

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

Sunday, January 29, 2006

Putting the terrorist threat into perspective

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Jonah Goldberg]

Glenn Greenwald says terrorism is no big deal.

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

Saturday, January 28, 2006

Posting today

(updated below -- and updated again)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, January 27, 2006

The Administration's humiliation of Congress

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, January 26, 2006

Miscellaneous items

A few miscellaneous matters:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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