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.

Monday, January 02, 2006

Bush's "confusion" about the eavesdropping he ordered

Here is the President yesterday, describing and defending the NSA eavesdropping program:

Mr. Bush also emphasized that the program was "limited" in nature and designed to intercept communications from known associates of Al Qaeda to the United States. He said several times that the eavesdropping was "limited to calls from outside the United States to calls within the United States."

But this is what the December 22, 2005 Department of Justice Memorandum said in arguing that the NSA program was legal:

The NSA intercepts certain international communications into and out of the United States of people linked to Al Qaeda or an affiliated terrorist organization.

That rather blatant contradiction led to this:

This assertion was at odds with press accounts and public statements of his senior aides, who have said the authorization for the program required one end of a communication - either incoming or outgoing - to be outside the United States. The White House, clarifying the president's remarks after his appearance, said later that either end of the communication could in fact be outside the United States.

Aren't we far enough into this scandal to be past the point where the President describes the NSA program inaccurately? One would think that the President would be particularly careful to avoid these sorts of misstatements, given that he said this in 2004:

"Any time you hear the United States government talking about wiretap," Mr. Bush said in Buffalo, "a wiretap requires a court order."

He added: "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."

I have never been one who believes that George Bush is stupid. His verbal skills are far from superior but I think even that is something that he plays up because it works to his advantage. And verbal skills are not a prerequisite, or really even a marker, for intelligence. I think Bush is perceptive, wily and well aware of what he is doing, particularly on big issues like this. But he has grown so accustomed since 9/11 -- and almost certainly before that -- to being able to say anything to justify his conduct without any regard to whether it's true that he can't stop himself.

He said "several times" yesterday that the only calls being monitored were those originating outside of the U.S., but he had to know that that is just false. How could he not know that? He ordered the eavesdropping, and it's a pretty good guess that the nature of this program has been discussed somewhat extensively at the White House these past couple of weeks. And all of that follows his repeated, ongoing statements over the last two years -- as he ran for re-election and then argued for renewal of the Patriot Act -- that the Government always obtains warrants before eavesdropping, something he also had to know was not true.

This has to matter, doesn't it? It can't be acceptable for George Bush, in the middle of this controversy, to run around making plainly inaccurate statements -- multiple times -- about what the NSA eavesdropping program does and does not include. As always, there is the scandal itself, and then false statements made by those in the middle of the scandal to protect themselves and conceal wrongdoing. No matter how you look at it, yesterday was a pretty clear example of the latter.

And as for the Administration's claim that only Al Qaeda members were the subject of the eavesdropping, isn't it clearly well-advised to wait for the evidence regarding the scope of the eavesdropping rather than relying on the Administration's self-serving say-so? The Administration's statements thus far on the nature of its eavesdropping haven't exactly been reliable or notable for their accuracy.

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