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

The latest from Bush followers

Jeff Goldstein at Protein Wisdom replied to part of my post from yesterday, along with a post by Tbogg, by claiming that we are "begging the question" of the Administration's illegality and "misrepresenting" -- "intentionally," of course -- the position of Bush defenders. Jeff is a diligent and conscientious vessel for every pro-Bush argument, and as a result, his posts always provide an excellent opportunity for surveying the current mindset and tactics of Bush followers. Along those lines, here are a few points to note in reply to Jeff's post:

(1) Amazingly, Jeff, along with a handful of quite tenacious individuals -- what Don Rumsfeld refers to, in another context, as "the dead-enders" -- are continuing to argue that Bush’s warrantless eavesdropping is consistent with FISA even though the Administration itself acknowledges that it is not.

From the beginning of this scandal, the Administration has admitted that the eavesdropping Bush ordered is outside the scope of FISA, but has argued that it was both necessary and justifiable for them to eavesdrop in ways that FISA prohibits. In fact, the principal argument advanced by the Administration is that the AUMF constitutes authority to act in violation of FISA because that resolution gave the Administration "an exception" to the law. That is the whole point of everything the Administration has been arguing. From the December 22, 2005 DoJ Memorandum:

By expressly and broadly excepting from its prohibition electronic surveillance undertaken "as authorized by statute," section 109 of FISA permits an exception to the "procedures" of FISA referred to in 18 U.S.C. § 2511 (2)(f) where authorized by another statute, even if the other authorizing statute does not specifically amend section 2511 (2)(f). The AUMF satisfies section 109's requirement for statutory authorization of electronic surveillance . . . .

Some might suggest that FISA could be read to require that a subsequent statutory authorization must come in the form of an amendment to FISA itself. But under established principles of statutory construction, the AUMF and FISA must be construed in harmony to avoid any potential conflict between FISA and the President's Article II authority as Commander in Chief. See, e.g., Zadvydas v. Davis, 533 U.S. 678,689 (2001); INS v. St. Cyr, 533 U.S. 289, 300 (2001).

Accordingly, any ambiguity as to whether the AUMF is a statute that satisfies the requirements of FISA and allows electronic surveillance in the conflict with al Qaeda without complying with FISA procedures must be resolved in favor of an interpretation that is consistent with the President's long-recognized authority.

Can this be any clearer? The Administration is arguing that it has an "exception to the ‘procedures of FISA,’" not that its surveillance complied with FISA. And contrary to Jeff’s footnote where he claims that the Administration is only arguing for this authority "hypothetically," the Administration is forced to argue this because it is admitting that it engaged in this surveillance "without complying with FISA procedures."

Along these same lines, here’s the new Time article describing the Bush Administration’s own rendition of events leading up to Bush’s order that the FISA courts be bypassed:

It didn't take long [after 9/11] before an aggressive idea emerged from the circle of Administration hawks. Liberalize the rules for domestic spying, they urged. Free the National Security Agency (NSA) to use its powerful listening technology to eavesdrop on terrorist suspects on U.S. soil without having to seek a warrant for every phone number it tracked. But because of a 1978 law that forbids the NSA to conduct no-warrant surveillance inside the U.S., the new policy would require one of two steps. The first was to revise the law. The other was to ignore it.In the end, George Bush tried the first. When that failed, he opted for the second.

In 2002 he issued a secret Executive Order to allow the NSA to eavesdrop without a warrant on phone conversations, e-mail and other electronic communications, even when at least one party to the exchange was in the U.S.-- the circumstance that would ordinarily trigger the warrant requirement. For four years, Bush's decision remained a closely guarded secret.

When even the Administration’s own admissions that it did not comply with FISA fail to prevent his admirers from arguing that FISA was adhered to, we really are in a realm of blind loyalty and reverence that is amazing, and a little alarming, to behold.

(2) Jeff, like many others, continues to advance the tiresome, manipulative, and facially preposterous claim that the New York Times and its source(s) "damaged" national security by revealing that the Administration failed to comply with the law when eavesdropping. Can anyone - anywhere - explain, just a little bit - just one time - how "national security has been damaged" by revelations that the Administration was eavesdropping without FISA-required warrants and judicial oversight rather than with them?

In campaigning for his own re-election and then for renewal of the Patriot Act, George Bush revealed infinitely more about how we monitor the communications of suspected terrorists and how we track other terrorist activities than the New York Times did in revealing the NSA FISA-bypass story. Before one runs around accusing the Times and its source(s) of treason, shouldn’t one identify which disclosure damaged national security and why? That would seem like a necessary prerequisite to making those sorts of accusations.

(3) What prompted the inclusion of Jeff on the list of blindly loyal Bush worshipers, in my post and apparently in Tbogg’s, was this statement of his, truly one of the most extraordinary I’ve read since this scandal began:

Leaks by unelected and entrenched foreign policy and intelligence bureaucrats (or perhaps elected members of the Congress?) meant to undermine the President in a time of war must carry with them consequences. Attempts by an adversarial press to supercede their mandate and actively work against a sitting administration while claiming neutrality and pretending to objectivity should have consequences.

As we are seeing, Bush supporters really do believe that the press acts improperly, even seditiously and criminally, when they - to use Jeff’s formulation - "actively work against a sitting administration," or, to put it more simply, when they commit the mortal sin of opposing His Majesty. To defend himself against Tbogg’s observation that Jeff’s advocacy of such limitations on the "press’s mandate" happens to conflict with the First Amendment, Jeff elaborates on his view of the press as follows:

To Tbogg’s way of thinking, a "free" press is a press whose authority to take facts and arrange them in such a way that even the rubes in flyover country learn the "appropriate" lessons, is somehow ontologically sacrosant—a position that, it seems to me, completely perverts the first amendment. . . .

For a democracy to function properly, however, our media is charged—for good reason— with presenting us facts dispassionately and in a their proper context(s) (or at the very least, signalling its biases up front) so that we can draw from those facts our own conclusions and then debate the public policy questions that arise from consideration of all the available information.

Jeff’s view of the press is exactly not what the press was intended to be -- some sort of dispassionate, mindless, uncritical conveyer of government statements and/or opinions by others. And the press was never that. Ever. Newspapers have always existed -- and have always had as their prime mandate -- to oppose, ridicule, attack, satirize, investigate and criticize those in power.

The Government will always be able to convey its own message. That is not the job of the press. Its most important function, by far, is to subject government claims to great scrutiny and skepticism. As long-time Miami Herald columnist Leonard Pitts recently noted:

As Thomas Jefferson put it: "I should not hesitate for a moment to prefer the latter." Jefferson knew that a free and adversarial press was the people's best defense against the excesses of their government and a fundamental building block of healthy democracy.

And in a warning remarkably applicable to the DoJ’s investigation and to the defense of it by Bush’s followers, Jefferson told us:

"Our first object should therefore be, to leave open to him all the avenues of truth. The most effectual hitherto found, is freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions."

To even speak of the media as "superceding its mandate" where it is reporting on (at best) highly controversial and potentially illegal Government conduct reveals a profound misunderstanding of the function of the press. The press was never intended to be some meek, uncritical mouthpiece for government power which Jeff’s view suggests. It was intended to be exactly the opposite.

(4) The fact that information is labeled "classified" by the Government does not mean it is truly classified. As I noted a couple of days ago, it is actually illegal (see Sec. 1.8) to classify information for the purpose of concealing unlawful acts by the Government (such as the President ordering that the law be violated when eavesdropping).

It is also worth remembering that this Administration has a history of improperly classifying information which exposes Government wrongdoing, such as the time when it classified the Taguba Report, which detailed government abuses in Abu Grahib, only to then -- once the report was leaked -- feign ignorance about why this plainly un-secret document was classified by the Administration.

While dedicated Bush followers like Jeff will never conclude that Bush acted illegally (if necessary, they will invoke the Yoo theory of "Bush Is The Law"), even they have to admit that there is substantial grounds for believing that he did. As I noted yesterday, even Powerline Paul -- Powerline! -- along with scores of other well-credentialed conservatives, acknowledge that. Even John Ashcroft (never one who was burdened by an excessive sensitivity to civil liberties) had serious misgivings (at least) about the legality of this program. None of that means, by itself, that Bush broke the law, but it does put it beyond reasonable dispute that there are ample grounds for believing that he did.

And that, by itself, makes whoever brought this concealed behavior to light a heroic whistleblower, by any definition. That’s what whistleblowers do. It’s what Mark Felt did in exposing the illegal conduct of the Nixon Administration. It’s what Joseph Darby did in bringing to light to the illegal and widespread abuses at Abu Gharib. It’s what Daniel Ellsberg did in leaking the Pentagon Papers and thereby exposing an array of Government lies about the Vietnam War. Such leaks are even how the media found out about all of the right wing's favorite Clinton scandals.

All whistle blowers disclose information that they were not permitted to disclose, or were expressly prohibited from disclosing, in order to expose wrongdoing which the wrongdoers were trying to conceal. That’s the nature of a whistle blower. They blow the whistle on people in power who are using that power to conceal their wrongdoing. To oppose the disclosure of classified information even when its purpose is to expose illegal behavior by our highest Government officials is to oppose the concept of whistleblowing itself, which is really what this whole DoJ investigation is about, because whistle blowers are our only hope for learning of illegal conduct by this Administration.

One can tell when a message is powerful when the messengers are attacked. The fact that Bush defenders have resorted to vicious attacks on the New York Times and its sources as criminals and traitors is yet more evidence that this scandal is a serious threat to the Administration, and its supporters know that.

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