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.

Wednesday, February 08, 2006

The NSA fight begins - strategies for moving forward

(Cross-posted on The Huffington Post)

For those expecting the first day of the NSA hearings to be the culmination of this scandal or to produce made-for-TV smoking guns, Monday was anti-climactic. Alberto Gonzales diligently displayed his principal, defining attribute – a willingness to advocate each and every pro-Bush defense with a degree of blind loyalty that is staggering and, even for Washington, truly rare in its slavish purity. The Justice Department had previously issued multiple, lengthy documents setting forth the Administration’s legal defenses of Bush’s NSA program, and Gonzales did little more than monotonously recite those scripted points. In response to questions calling for him to deviate from the script, he either refused to answer or claimed he was unable to do so.

Although lacking in grand drama, Gonzales’ testimony marks the beginning, not the end, of this scandal. How this scandal will be resolved is very much still to be determined, and its resolution depends exclusively on the course of action chosen by Bush opponents. Gonzales' defense of George Bush creates several potent opportunities to ensure that the Administration is held accountable for its repeated and deliberate acts of law-breaking.

Discussions among Bush opponents about what the next steps ought to be have centered around procedural events such as appointment of a Special Prosecutor or the issuance of subpoenas for additional witnesses to be called before the Judiciary Committee. But none of those procedural steps, either standing alone or even aggregated together, is anywhere near sufficient to further this scandal or even to sustain public interest in it.

Absent some sort of smoking gun discovery that there has been a clear and deliberate pattern of abuse of these eavesdropping powers (either as part of this program or some other as-yet-undisclosed program), we now have most if not all of the truly relevant information that exists with regard to this specific NSA eavesdropping program.

Thus, to compel the Administration to face real consequences for their unlawful actions, Bush opponents must do something they virtually never do -- agree on a limited set of clear, focused and principled points, and then activate every instrument of public persuasion which exists, and invent new ones which do not exist, to convey the formulated argument in a coordinated fashion. If that is done, Americans can be convinced that the actions of the Administration and the theories of presidential power they have embraced are deceitful and dangerous, and that these actions constitute a profound assault on the political values on which America was founded and which has made our country both unique and great for the last 225 years.

The war over this scandal is not going to be won in the comfort of courtroom arguments as part of some litigation, nor is it going to be won because some Republican Senators decide – for the first time in five years – that their loyalty to the law or to the country outweighs their loyalty to George Bush. The Administration will be held accountable for its illegal conduct here if and only if Americans becomes convinced that the Administration’s actions were wrongful and deserve punishment. And that, in turn, will happen only if Bush opponents formulate an effective and coordinated strategy for making this case directly to Americans, and then articulate those principles aggressively and passionately.

The case that ought to be made need not and should not depend upon the types of overly calculating and manipulative message manufacturing in which our political consulting class so relentlessly (and unsuccessfully) traffics. This scandal resonates so passionately with so many people because it implicates our most basic political principles. For that reason, any campaign to persuade Americans of the seriousness of this scandal must, in my view, be rooted in that passion and adhere unapologetically to those principles. Following are a few of the types of arguments and approaches which I believe could be powerful and effective:

(1) The President is now claiming, and is aggressively exercising, the right to use any and all war powers against American citizens even within the United States, and he insists that neither Congress nor the courts can do anything to stop him or even restrict him.

It is true, as many have been pointing out, that this scandal, at its core, is about the rule of law -- about whether the President has the right to break the law. But it will not suffice to rely upon that slogan because Gonzales has now articulated a clear response to it: namely, he has claimed that they did not break the law because there are legal authorities and legal theories that allowed them to do what they did.

They then parade around lawyers such as Gonzales and others to spout esoteric legalisms and, as intended, the impression is created that this is nothing more than a mind-numbingly complex lawyer dispute to be resolved with legal briefs in court. If all we say is "the President broke the law" and they say "no, we adhered to the law," nobody will be persuaded either way.

It is undeniably true that Gonzales, in his testimony, articulated a clear and coherent legal theory to defend Bush’s violations of the law. But that legal defense is so radical, so dangerous, and so contrary to our most basic political values, that the first priority, in my view, is to make Americans aware of exactly what powers the Administration claims it has the right to use -- not just against Al Qaeda, but against American citizens, within the United States.

The Administration’s position as articulated by Gonzales is not that the Administration has the power under the AUMF or under precepts of Article II "inherent authority" to engage in warrantless eavesdropping against Americans. Their argument is much, much broader -- and much more radical -- than that. Gonzales' argument is that they have the right to use all war powers – of which warrantless eavesdropping is but one of many examples – against American citizens within the country. And not only do they have the right to use those war powers against us, they have the right to use them even if Congress makes it a crime to do so or the courts rule that doing so is illegal.

Put another way, the Administration has now baldly stated that whatever it is allowed to do against our enemies in a war, it is equally entitled to exercise all of the same powers against American citizens on American soil. In a Press Release issued on January 27, the DoJ summarized its position on the legality of its actions this way:

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.

Gonzales took that argument even one step further on Monday by claiming that even in the absence of the AUMF, Article II of the Constitution gives the President the right to employ all "incidents of war" both internationally and domestically – which means that even if Congress repealed the AUMF tomorrow, the Administration, by this view, would still have the absolute and unchecked right (under Article II) to use all war powers against American citizens. Indeed, it claims that it would have those war powers even if Congress passed a law prohibiting the exercise of those powers against Americans.

The "war powers" which a President can use in war against our enemies are virtually limitless -- they include indefinite detention in prison with no charges or access to lawyers, limitless eavesdropping, interrogation by means up to and perhaps including torture, and even killing. The reason the Administration claims it can engage in warrantless eavesdropping against Americans is because it has the general right to use all of these war powers against Americans on American soil, of which eavesdropping is but one example. Without hyperbole, it is hard to imagine a theory more dangerous or contrary to our nation’s principles than a theory that vests the President -- not just Bush but all future Presidents -- limitless authority to use war powers against American citizens within this country.

Critically, these claimed powers are not purely theoretical or, as Gonzales claimed in response to questions from Sen. Feinstein, "hypothetical." Quite the contrary. Not only has the Administration claimed these powers, they have exercised them aggressively -- not just against Al Qaeda, but against American citizens.

In my view, the single most significant and staggering action of the Bush Administration – and there is an intense competition for that title, with many worthy entries – is the fact that the Administration already has detained an American citizen on American soil (Jose Padilla), threw him into a military prison indefinitely, refused to charge him with any crime, and refused even to allow him access to a lawyer, and then kept him there for several years. Then, the Administration argued that federal courts are powerless even to review, let alone limit or restrict, the Government’s detention of American citizens with no due process.

And to justify this truly authoritarian nightmare – being detained and locked away with no due process by your own Government – the Administration relied upon precisely the same theory which Gonzales advocated on Monday to justify the Administration’s warrantless eavesdropping on Americans. Like warrantless eavesdropping, indefinite detention is a "war power," and the Administration therefore claims that it has the right even to detain American citizens with no charges, and nothing can limit or stop that power.

If the American people decide through the Congress that we do not want the Government to be able to use those war powers against us -- as, for instance, we did in 1978 when we, through our representatives, enacted FISA, or when we enacted legislation last December banning the use of torture -- do we really have a system of Government where the President can literally ignore that, violate the laws that we enact, and then use those war powers against American citizens in the face of laws prohibiting it?

Under the Bush Administration, that is the country we have become. Alberto Gonzales spent 8 hours on national television the other day justifying why we must be a country which lives under a system which operates in that manner. That is a system of government wholly foreign to how Americans understand their nation and how our nation has always functioned. There is no more important priority than making as clear as possible to Americans just how broad and truly radical are the powers claimed by this President.

(2) This scandal is not about liberalism or conservatism, but is about core American political values.

There are scores of prominent conservatives and conservative organizations vigorously opposed to the Administration’s actions, and every public event and campaign should include them in order to prevent this scandal from being (falsely) depicted as the by-product of liberal softness on terrorism or personal hostility towards the President. There are multiple ways to achieve this and several reasons why doing so is vitally important.

Having Bob Barr introduce Al Gore’s passionate anti-tyranny speech, sponsored by a libertarian group, is a perfect illustration of how this can and should be done. Former Reagan Justice Department official and hard-core conservative Bruce Fein wrote an Op-Ed in The Washington Times urging that Bush be impeached if the Administration did not immediately cease its illegal eavesdropping. The media is starting to become aware of this trend, and bloggers can and should demand retractions from any journalist who falsely characterizes opposition to the Administration’s law-breaking as "Democratic" or "liberal."

This approach is not a cynical tactic designed to create a false appearance of bipartisanship -- such as when Bush defenders parade Joe Lieberman around as "proof" that the "serious Democrats" support the Administration’s terrorism policies. Conservative opposition to the Administration on these issues is not merely comprised of a handful of token or conflicted conservatives. Opposition to the Administration’s law-breaking among conservatives is substantial and it is growing. And it is easy to understand why this is so – the Administration’s theories of presidential power are repugnant to many core principles of true conservatism, from the supremacy of the rule of law to the importance of restraining the powers of the Federal Government (as the Founders intended), particularly when it comes to those powers which can be wielded by the Government against American citizens.

Importantly, this is not a case where liberals and conservatives arrive coincidentally at the same place despite beginning from radically different premises -- the way, say, Pat Buchanan’s isolationist theories just coincidentally lead him to the same anti-war views as certain pacifists on the Left. Here, the basis for opposition to the Administration’s action among liberals, conservatives and everyone in between comes from exactly the same set of principles and beliefs -- namely, that what is at stake in this scandal is whether America will continue to live under the principles of law and the system of government on which our country was founded and which has kept us both strong and free.

For that reason, the extremist theories adopted by the Administration present a unique opportunity to forge powerful alliances in the fight against the naked lawlessness which is being foisted upon us – a lawlessness which transcends, and is not a part of, any mainstream American political ideology. The Administration’s actions here do not contravene liberal principles or conservative principles per se, but really, more than anything else, are simply un-American, and that is why there is such a diverse and broad-based revulsion to their actions.

Contrary to the central deceit manufactured by Bush followers over the last five years, patriotism is not defined by loyalty to a particular elected official. Indeed, excess loyalty to a single individual is the very antithesis of patriotism, as it places fealty to that individual over allegiance to the country, its interests and its values. Patriotism is measured by the extent to which one believes in, and is willing to fight for and defend, the defining values and core principles of our country.

Americans will understand this appeal if it is made forcefully and clearly -- with conviction -- because these values are neither esoteric nor abstract. They are instilled within all of us by virtue of growing up and/or living here. That is the language we need to use to speak about this scandal. This scandal is not about George Bush or eavesdropping. It really is about who we are as a nation and whether we want to preserve our core political values.

We should not only be willing, but eager, to seek out conservative, libertarian and independent allies in this fight. Doing so will destroy the deceit that this scandal arises out of liberal opposition to Bush or aggressive counter-terrorism measures. But much more importantly than that, these nonpartisan efforts will highlight the true threats to our nation posed by the Administration’s conduct.

(3) Do we want to radically change the way our Government works for the next several decades all because of Al Qaeda?

America is a country that has faced numerous, grave external threats in its history – including several which threatened the very existence of our nation. The strength and genius of our country is that we defeated each of those threats without ever needing to abandon our founding principles by vesting the type of unchecked and overriding authority in a President which George Bush has now seized. Indeed, FISA itself, which Bush claims he has the right to violate on account of Al Qaeda, was enacted by Congress and signed into law by the President in 1978 -- at the height of the Cold War, when we faced a threatening and powerful Soviet Union.

Are we really now a country that is going to discard American political principles -- all for Al Qaeda? Bush opponents can and ought to emphasize that the greatness of America has always been that we adhere to the principles on which our nation is based even while we confront and defeat external threats. We have never needed to vest the type of unlimited power in a President which George Bush is demanding, nor have we ever needed to relinquish the basic constitutional principles of our country in order to defeat our enemies.

We remain a strong country -- and we become stronger -- not by allowing Al Qaeda to force us to abandon the defining principles and values of our country, but by defeating Al Qaeda and any other threats while insisting that our Government abide by the constitutional structure and principles on which our country is based.

The foregoing are merely proposals for how the seriousness of this crisis can be conveyed to Americans. There are other important points as well (such as the fact that the Administration always expressly recognized the validity and constitutionality of FISA -- indeed, Bush even requested and then signed into law amendments to FISA -- and they only suddenly began claiming that FISA was unconstitutional once they got caught violating it and needed a defense for their law-breaking).

But whatever arguments are selected, what matters is that there be a coordinated, comprehensive, and full-fledged campaign to persuade the public of the importance of this scandal – not by relying on legal processes or the standard media machinations, but by implementing a campaign designed to allow Bush opponents to control our own message and communicate directly to Americans. In my view, whether this can be accomplished will, far more than any other factor, determine whether the Administration is held accountable for their law-breaking or whether this scandal will join the countless others which meekly and inconsequentially fade away into the attention-deficit media whirlpool.

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