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.

Thursday, February 02, 2006

Monday's NSA hearings and other matters

There are some encouraging developments in the effort to induce at least some of the members of the Senate Judiciary Committee to be receptive to the questions we have developed here and to be willing to listen to some input as to how the questioning should proceed. As a result, depending on what gets confirmed today, I will likely be traveling to DC to do something in connection with Monday’s hearing, although what that something is remains very much to be determined. At the very least, I should be able to live blog the first day of the hearings from the Senate Judiciary Committee hearing room.

I am currently quite far away from Washington and thus, if I do go, I will have to travel for a good part of a full day, so if I disappear for a bit, that will be why. In the meantime, here are a few interesting items to note:

(1) The Anonymous Liberal has churned out some excellent analysis of the NSA issue in the last few days, and he has found several passages in various under-discussed documents which further undercut the Administration’s claims as to why it was necessary to eavesdrop outside of FISA. In particularly, his posts here, here and here contain some new analysis and some important finds.

FISA was amended by the Patriot Act in September, 2001, specifically in order to modernize and liberalize its provisions, in part to expand the terrorist surveillance powers of the Administration. As A.L. demonstrates, the President made numerous statements at the time praising these changes as giving the Administration the agility and flexibility it needed to monitor the technologically advanced communications of terrorists.

Thus, how credible is the President's claim now that he ordered eavesdropping outside of FISA a mere couple of months (if not weeks) after these FISA amendments were enacted because FISA was supposedly obsolete? How could the obsolete nature of FISA be what motivated his FISA-bypass program when FISA had just been modernized a couple months earlier and the President said it gave them everything they needed? And, if FISA was obsolete, why were its problems not fixed (as the President at the time claimed they were) when FISA was amended by the Patriot Act?

This is critically important because everyone other than Michelle Malkin Types would agree that, all other things being equal, it is preferable for the Government to eavesdrop with judicial oversight than without it. For that reason, this question continues to be unanswered: why did the Administration need to eavesdrop outside of the permissive FISA framework? The Administration's answer (that FISA was obsolete) is plainly contradicted by its statements and actions over the last four years. The analysis of A.L. makes that contradiction clearer.

(2) The New York Times reports today that the Administration is refusing to disclose numerous Justice Department documents relating to the legal "justification" for eavesdropping outside of FISA – likely because those documents reveal that numerous high-level Justice Department lawyers believed the program to be illegal and because the original justifications for the program bear no resemblance to, and even likely contradict, the rationale being peddled by the Administration now.

Sen. Schumer has some comments about this which suggest that he, at least, may be serious about these hearings and exposing the true corruption and dishonesty that lies at the heart of this scandal:

But Senator Charles E. Schumer, a New York Democrat who also serves on the Judiciary Committee, said the panel should consider issuing subpoenas if the administration is not more forthcoming in providing documents and witnesses.

"Without the Justice Department memos and without more witnesses, it's hard to see how anything other than a rehashing of the administration line is going to happen," Mr. Schumer said Wednesday. "I am worried that these hearings could end up telling us very little when the American people are thirsty to find out what happened here."

The Democrats are in the minority everywhere and their ability to force things like the disclosure of these documents is quite limited, and is likely to depend upon public and media demands that this happen [or on the willingness of some of the Republicans on the Committee (Brownback, Graham, Specter) who have expressed concerns about the program's legality to conduct a real investigation]. Generating public demands of this sort is one way that the blogosphere can play an important role in these hearings, if the Judiciary Committee members appreciate this value and do what they should to work with the blogosphere to achieve these goals.

(3) Several people in the Comments section last night and in other places around the blogosphere pointed to and rightfully complained about this outrageous passage from an AP article reporting on the Sheehan arrest:

Sheehan's T-shirt alluded to the number of soldiers killed in Iraq: "2245 Dead. How many more?" . . .

Young's shirt had just the opposite message: "Support the Troops — Defending Our Freedom."

Of course. As we all know (because George Bush said so, followed by his followers, followed by the media), opposition to the war in Iraq is the "opposite message" of supporting the troops and defending our freedoms. That's a totally appropriate premise on which to base a news article.

A mini blogosphere firestorm erupted over this, and I have no doubt that the e-mail inbox of the AP reporter (Laurie Kellman) was stuffed with objections. As Jane Hamsher reports, that sentence was thereafter altered to a more neutral formulation. There have been several instances like this over the past few weeks where blogosphere pressure has had a real impact on the establishment media.

(4) As encouraging as the polls have been on the NSA scandal, they have been transparently incomplete, since none (at least that I have seen) has asked whether the public approves of Bush’s warrantless eavesdropping if it is against the law – which happens to be the point of this scandal.

The enterprising bloggers at MyDD have commissioned a poll designed to rectify clear flaws in the polling methodologies of the most prominent pollsters on a broad range of issues, and they have been rolling out the findings incrementally each day. Yesterday, they released the polling data for the questions on the NSA scandal and they have some revealing, and quite encouraging, results.

(5) Sam Alito cast his first vote as a Supreme Court Justice last night, and voted with the "liberal" wing to stay the execution of a convicted murderer in Missouri. In doing so, Alito sided with Ginsburg, Breyer, Stevens, Souter and Kennedy -- and against Scalia, Thomas and Roberts. That has certain Bush fanatics already in hysterics over whether Alito is a "real conservative" -- so much for only caring about fealty to the law rather than desirable political outcomes.

There are all sorts of explanations for this vote – including the fact that, being unfamiliar with the case, Alito, in his second day on the job, may not have wanted to order someone to his death without having more time to familiarize himself with the facts. What a secular humanist judicial activism outrage that is.

These Bush followers plainly believe they are entitled to blind loyalty from Alito and Roberts to the full range of their political agenda, and if one of them turns out to be less loyal to it than they expect, the rage will be unlike anything we’ve ever heard before. The entertainment value of that, by itself, is reason enough to pray this happens.

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