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.

Friday, March 31, 2006

Does the White House NSA defense come from John Mitchell?

(updated below - updated again - and again)

Among the witnesses testifying at the Senate Judiciary Committee hearing today on Sen. Feingold's Censure Resolution is former Nixon White House Counsel John Dean. Dean has frequently compared the abuses of the Bush Administration generally to those of the Nixon Administration, and has specifically compared the illegal eavesdropping activities of the two Administrations.

While we know that the eavesdropping ordered by President Bush is exactly the eavesdropping which FISA makes it a criminal offense to engage in, we do not yet know -- thanks to the frenzied efforts of Bush defenders to suppress any and all investigations into the Administration's eavesdropping activities -- the nature and extent of Bush's warrantless eavesdropping program. We do not, for instance, know which Americans were eavesdropped on, how many Americans were subject to this illegal surveillance, how it was determined who would be eavesdropped on, what was done with the information, whether purely innocent Americans had their communications intercepted without judicial approval, etc.

The White House has repeatedly assured us that there is no reason for us to know any of this, and there is nothing for us to worry about, because they are eavesdropping only -- to use a The White House's formulation -- on the "very bad people."

In that regard, John Dean is an excellent witness for the hearings today, since he was part of an Administration which invoked exactly the same rationale. According to this July 25, 1969 article from Time Magazine, which was reporting on public fears over new surveillance powers given to the Administration by the Congress, Nixon's Attorney General John Mitchell told Americans they had nothing to worry about:

During his presidential campaign, Richard Nixon said that he would take full advantage of the new law-a promise that raised fears of a massive invasion of privacy. To calm those fears, the Administration last week issued what amounted to an official statement on the subject.

In his first news conference since becoming the President's chief legal officer, Attorney General John N. Mitchell pointedly announced that the incidence of wiretapping by federal law enforcement agencies had gone down, not up, during the first six months of Republican rule. Mitchell refused to disclose any figures, but he indicated that the number was far lower than most people might think. "Any citizen of this United States who is not involved in some illegal activity," he added, "has nothing to fear whatsoever."

Because all of this was before FISA, the Nixon Administration was able to exercise their eavesdropping powers on Americans in secret, without any oversight of any kind -- just like the Bush Administration has been doing even in the face of FISA. We all know how well that worked out. It was the shocking abuses of those powers by not just the Nixon Administration, but by the Kennedy and Johnson Justice Departments as well -- all which were revealed only as part of the Church Committee's investigation -- that led to the enactment of FISA, since the country no longer trusted political officials to exercise eavesdropping powers on Americans in secret and with no oversight.

It is rather striking how the White House's defense of its activities -- and its explanation for why there need not be any Congressional investigation into its actions ("you shouldn't worry"; we are only eavesdropping on the "very bad people") -- is virtually identical, both in substance and in words, to the assurances given to us on the same topic by the Nixon Administration. John Dean is an extremely appropriate witness at these hearings in so many ways.

UPDATE: As commenters here pointed out (I didn't see it), Sen. Feingold read from parts of this post at the Censure Resolution hearing this morning (and, courteously, credited this blog) when he was questioning John Dean. He specifically asked him about the Mitchell quote.

To see the video excerpt of that exchange, click here, then click on

Senate Judiciary Hearing on the Censure President Bush.

You can watch the whole hearings there. The exchange where Feingold quotes from this post begins at 2:41:55. (UPDATE - C&L has now posted the video clip here).

UPDATE II: I will be on Air America's Majority Report with Janeane Garafalo at 9:22 pm EST tonight to talk about the hearings. That was scheduled a few days ago. You can listen to the live audio feed or see the station list here.

UPDATE III: C&L has now posted the video clip of the Feingold-Dean exchange.

What would the Founders say?


GUEST POST - By Hume's Ghost

When I first discovered Glenn's blog I was impressed by the way Glenn so easily cuts through the legal b.s. that is put forth by the administration in defense of its actions and provides clear and concise explanations as to why the reasoning offered by the administration is insufficient. But there is a problem: clear and concise reasoning is not getting through to the public at large. The reason is that Republicans, led by Karl Rove, have found a way around reason and rational discussion - fear. They have exploited fear shamlessly since 9/11 in order to short-cut and bypass democratic discourse.

Thankfully, however, we have a resource at our disposal that Karl Rove can not hope to counter. What we have is the universal reverence that all Americans share for the Founding Fathers and the founding principles of this nation. If we can tap into that, then perhaps we can wake the slumbering spirit of democracy in this nation. For while people may lack the attention to be swayed by legalistic arguments, they are unlikely to remain ambivalent if they are made to realize that our government is being run by men to whom the concepts of democracy are alien or anathema.

Let's start with George Bush.

Does anyone think the President has ever read The Federalist or remembers doing so? Do you believe his actions are in any way informed by reading America's first and (in my opinion) greatest patriot Thomas Paine? Has he read the letters of Jefferson and Adams? If you asked the President who wrote Memorial and Remonstrance, aren't you certain he would be clueless? And to suggest that the President would be familiar with writings that informed the Fathers - Locke, Montesquieu, Spinoza, Voltaire, etc - can't even be taken seriously.

See? It's easy. At every turn I find that the administration is answered by the Founders.

The White House suggests the New York Times is guilty of treason for revealing that the President authorized warrantless surveillance of American citizens.

In "A Dissertation on the Canon and Feudal Law" (1765) John Adams responds:

[L]iberty cannot be preserved without a general knowledge among the people, who have a right ... to knowledge ... and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean, of the characters and conduct of their rulers. Rulers are no more than attorneys, agents, and trustees for the people; and if the cause, the interest and trust, is insidiously betrayed, or wantonly trifled away, the people have a right to revoke the authority that they themselves have deputed, and to constitute abler and better agents, attorneys, and trustees ...

The stale, impudent insinuations of slander and sedition, with which the gormandizers of power have endeavored to discredit your paper, are so much the more to your honor; for the jaws of power are always opened to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and writing.

And if the public interest, liberty, and happiness have been in danger from the ambition or avarice of any great man, whatever may be his politeness, address, learning, ingenuity, and, in other respects, integrity and humanity, you have done yourselves honor and your country service by publishing and pointing out that avarice and ambition. These vices are so much the more dangerous and pernicious for the virtues with which they may be accompanied in the same character, and with so much the more watchful jealousy to be guarded against.

"Curse on such virtues, they've undone their country."

Be not intimidated, therefore, by any terrors, from publishing with the utmost freedom, whatever can be warranted by the laws of your country; nor suffer yourselves to be wheedled out of your liberty by any pretences of politeness, delicacy, or decency. These, as they are often used, are but three different names for hypocrisy, chicanery, and cowardice.

The White House asserts that its war powers are without bounds.

James Madison answers in Federalist #47:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

The President claims violating FISA was necessary for national defense and that he is thus justified for acting unilaterally.

George Washington, in his Farewell Address (1796) disagrees:

It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another.

The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position.

The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them.

If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.

We are told that we are being paranoid for worrying about "phantom" liberties being lost.

In "Memorial and Remonstrance" (1785), James Madison tell us:

[I]t is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution.

We are told that terrorists do not have rights.

Thomas Paine in Dissertation on the First Prinicples of Government (1795) advises:

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

We are told we should trust that the President will not abuse the unchecked powers he claims to have.

Thomas Jefferson tells us, in " Bill for a More General Diffusion of Knowledge" (1778) :

Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.

Jefferson reiterates and expands on this sentiment in the "Kentucky Resolutions" (1798):

[F]ree government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go ... In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

And John Adams, writing in his Notes for an Oration at Baintree (1772) adds:

There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.

Several days after a Senate Judiciary Committee hearing into the nature of the NSA surveillance program begins Bush announces that a 9/11 style attack on LA was prevented in 2002.

James Madison, anticipating this tactic wrote in 1798 to Thomas Jefferson:

Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.
We are repeatedly told we are in a war, and that we will be at war indefinitely.

In the Federalist #8 Alexander Hamilton recognized that external threats can erode liberty:

Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.

Then, perhaps anticipating the fear-mongering that would be done by this administration Hamilton continued:

The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil.

The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power.

The administration claims that the provisions of FISA are a burden, that it needed to violate FISA to protect us.

Thomas Jefferson writing to Archibald Stuart in 1791 answered:

I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it.

The President asks for a military budget that in 2007 will exceed average spending from during the Cold War, despite our enemy no longer being a rival superpower, but instead being men that hijack planes with box cutters.

George Washington, America's first General and first President, upon leaving office told us:

[O]ver grown military establishments are under any form of government inauspicious to liberty, and are to be regarded as particularly hostile to republican liberty.

Most recently, Senator Patrick Roberts, redefining patriotism as cowardice, tells us "You don't have civil liberties if you're dead."

The ghost of Patrick Henry, returning from the great beyond to answer the wounded call of Lady Liberty cried out:

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

These are just a few examples. But is there any doubt that the course that this administration has set is a radical departure from the vision for American that the Founding Fathers had?

Yet I know and understand how frustrating fighting for what is right can be. Thomas Paine had something to say to us as well, in Common Sense (1776):

Perhaps the sentiments contained in the following pages, are not YET sufficiently fashionable to procure them general favour; a long habit of not thinking a thing WRONG, gives it a superficial appearance of being RIGHT, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason.

Thursday, March 30, 2006

What the FISA judges really said


By Anonymous Liberal

(updated below)

Yesterday the Washington Times published an article with the headline: "FISA judges say Bush within law." The article, by Brian DeBose, reported:

A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).

Bush's defenders wasted no time jumping to the conclusion that Bush had been vindicated and all this talk of FISA and illegality was utter nonsense. One small problem: the article is complete and utter rubbish. Even some of Bush's chief apologists sensed something was amiss; a New York Times article by Eric Lichtblau provided an entirely different account of the hearing.

Five former judges on the nation's most secretive court, including one who resigned in apparent protest over President Bush's domestic eavesdropping, urged Congress on Tuesday to give the court a formal role in overseeing the surveillance program.

In a rare glimpse into the inner workings of the secretive court, known as the Foreign Intelligence Surveillance Court, several former judges who served on the panel also voiced skepticism at a Senate hearing about the president's constitutional authority to order wiretapping on Americans without a court order.

They also suggested that the program could imperil criminal prosecutions that grew out of the wiretaps.

But both Hinderaker and Goldstein were pretty sure that the transcript, which neither of them had read, would vindicate DeBose and embarrass Lichtblau.

I've now read through the transcript, and not surprisingly, it's clear that Lichtblau was awake during the hearing and DeBose was, well, very confused.

He's not the only one, though. Hindrocket now claims to have read through the transcript as well and has cranked out a post entitled "Verdict: The New York Times Blew the Story." He claims that the New York Times "badly misled its readers" and that the Washington Times story "was fair, but arguably overstated."

Okay, let's review the facts. The transcript of the hearing--which is very long--is only available via subscription, so you're going to have to take my word for now. A total of five judges testified in person, and one submitted written testimony. All of the judges made it crystal clear that they had no intention of opining on the legality of the NSA program ("we will not be testifying today with regard to the present program implemented by President Bush"). The judges were there to testify about FISA and about the merits of Sen. Specter's proposed legislation to amend FISA.

The bulk of the testimony by the judges was in praise of FISA and in praise of Specter's proposed bill (which is clearly why Specter called them to testify in the first place). Although the judges were careful not to opine about the NSA program specifically, it was clear from their testimony that they believe further Congressional authorization is necessary and desirable and that the judiciary has an important and indispensable role to play in overseeing domestic surveillance.

Their agenda, to the extent they had one, was to lobby for the continued relevance of the FISA court. If the DeWine bill passes, the FISA court will be utterly marginalized. These judges realize that some sort of legislation is likely to be passed, and they'd undoubtedly prefer something along the lines of Specter's bill, which would at least require the court to approve surveillance on a program-wide level.

I can assure you, though, that at no point did any of the judges come anywhere close to saying that the president "did not act illegally" or that he acted "within the law" when he authorized the NSA warrantless surveillance program. So the Washington Times story is complete rubbish. It could not possibly be more misleading.

As for Lichtblau's article, the line that seems to have provoked the strongest reaction from the right-wing blogs is his statement that "several former judges who served on the panel also voiced skepticism at a Senate hearing about the president's constitutional authority to order wiretapping on Americans without a court order." John Hinderaker says that this sentence "is simply wrong" and that he "can't find a single line in more than 100 pages of transcript that supports Lichtblau's reporting." Steven Spruiell of the NRO Media Blog echoes this sentiment: "the transcript I read indicates that the exact opposite is true."

Well, maybe I can help them out. Though the judges were very diplomatic in their choice of words, there is still plenty of support for Lichtblau's statement in the transcript. For instance, Judge Robertson's written testimony (which Specter read aloud) states: "Seeking judicial approval for government activities that implicate constitutional guarantees is, of course, the American way."

Judge Brotman said:

FISA has worked and worked well. It is a necessary court and its orders reflect the balance to which I have made reference. It has no ax to grind, this court. Judicial review provides confidence to the citizens of our country to know that a court has looked on what is being sought. Times change. Methodology changes. Equipment changes.

Processes change. All these things can be and should be accommodated with the FISA Court.

Judge Stafford said:

As I approach my 75th birthday, it remains my belief that our nation is really held together by a couple pieces of paper -- the Declaration of Independence and the Constitution -- and the belief of the American people that our system of government works. FISA was created by Congress to clarify that the president had the authority to conduct foreign intelligence surveillance, but that the president would do so through a court composed of judges who had been nominated for lifetime appointments by a president and confirmed by the Senate as provided in Article III of the Constitution. This arrangement seems to have worked well for everyone.

The testimony of Magistrate Judge Allan Kornblum, whom Hinderaker and DeBose quote extensively, was a bit hard to follow, but even he said some things that support Lichtblau's assertion:

The presidential authority that is being used today is being used unilaterally. I think all of the judges agree with me that when the president operates unilaterally, his power is at its lowest ebb, as has been mentioned in judicial decisions.

This is, of course, the holding of Youngstown and a principle which Hinderaker has refused to acknowledge as being relevant to this issue. Kornblum explains further:

But when Congress passes a law, such as one authorizing the surveillance program targeting communications networks -- when the Congress does that and the judiciary has a role in overseeing it, well then the executive branch's authority is at its maximum. What that means is they can do things, I believe, under an amended FISA statute that they cannot do now.

This is as clear a statement as any that the president cannot simply do whatever he feels is necessary, regardless of what the law says. Earlier in his testimony, Kornblum observed:

I also want to emphasize that the real success of the FISA statute is that it's proven indisputably that intelligence and counterintelligence activities are fully
enhanced by the rule of law and, in fact, are fully compatible with the rule of law.


I would also reiterate that the president doesn't have a carte blanche, that the courts are the arm of government that determines what the president's constitutional authority is.

One last thing before I go. In reading through the transcript, I noticed that Sen. Specter opened the proceedings by telling the panel:

Before you begin your testimony, it is our practice to swear in witnesses, so I'd ask you all to rise.

So now it's the committee's practice, huh? Funny how things change.

UPDATE (by Glenn): As I point out in my Comment here, the claims by The Washington Times, predictably parroted by Powerline and company, are based on several transparent myths that one can believe only if one has a complete lack of understanding as to how our system of government works.

Intellectually bankrupt Bush apologists have long been propagating the myth that once it's established that the President would have a certain power in the absence of a Congressional statute (such as the power to engage in warrantless eavesdropping for foreign intelligence purposes), then it necessarily means that the power can never be limited by Congress. But our entire system of government -- and the entire point of Youngstown -- is that a President may have the right to act in a certain area in the absence of a Congressional statute, but once Congress regulates in that area, then the President can't exercise that power in a way that violates the law.

Anyone who says: "the President has the right to do X under the Constitution and therefore Congress can never regulate it" just has no idea how our system of Government works.

No need to take my word for it. Attorney General Alberto Gonzales even explained these basic precepts -- slowly enough so that they should be understood by everyone -- when he testified before the Judiciary Committee:

GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war.

And so if we're talking about competing constitutional interests, that's when you get into, sort of, the third part of the Jackson analysis.

Let's repeat what Gonzales said for those unwilling or -- in the case of Powerline -- unable to process it: "the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area."

That's 8th Grade civics. The three branches of Government share responsibility for the functions of Government. So the fact that the President can engage in surveillance to defend the Nation doesn't mean that Congress can't regulate how that power is used against American citizens on American soil. FISA was in place and adhered to by every Presidential Administration - Carter, Reagan, Bush 41, Clinton. Nobody ever suggested it was unconstitutional -- including the Bush Administration -- until they got caught violating it and needed an excuse.

Moreover, these judges who testified made as clear as they could make it that they were not there to testify as to the legality of the NSA program. Anyone who thinks they did does not understand how the judiciary works.

Judges don't run around freely opining on legal disputes. And these judges weren't purporting to do that, as they made clear. What they did instead was what judges do in these circumstances - spout general propositions of law which, in this case, as A.L. demonstrated, support the conclusion that the President does not have the right to violate the law.

Wednesday, March 29, 2006

Various matters

(1) Marty Lederman has some interesting thoughts on the testimony yesterday of former Bush Justice Department official David Kris. Video excerpts of Kris' testimony can be seen here.

(2) Marty's co-blogger, Jack Balkin, has posted a thorough analysis of the Hamdan Oral Argument before the Supreme Court yesterday.

(3) It turns out that the editor of Ramesh Ponnuru's new book, Party of Death, is none other than serial plagiarist Ben Domenech (Digby has an incisive and rather hilarious analysis of Ponnuru's new book here).

The striking aspect of this story, among others, is that Ponnuru defended Domenech in The Corner at the height of the controversy over Domenech's selection as a WashingtonPost.com blogger without disclosing his personal relationship to Domenech, misleading his readers into believing that he was commenting objectively on the anti-Domenech accusations. I explained my thinking on this blatant conflict of interest -- the nondisclosure of which is indisputably unethical -- in an e-mail to Jane Hamsher, who has been covering the Ponnuru-Domenech relationship and wrote about the issue, including my e-mail, here.

(4) The L.A. Times article which reported on the identity of Ponnuru's editor is highly worth reading, as it provides a compelling antidote against the increasingly accepted premise that the blogosphere is filled with crazed, irresponsible, fringe radicals who are free of substance and ought to be ignored. As the article demonstrates, in the Domenech case (as is frequently the case), the blogosphere performed an invaluable function of uncovering what WashingtonPost.com ought to have discovered but failed to -- namely, the serial plagiarism of its new paid blogger.

As I have written about before (and wish I could write more about right now), so much of the resentment towards the blogosphere and the accusations of "irresponsibility" come from establishment journalists who have grown accustomed to being unchallenged and never being held accountable. They deeply resent the accountability which the blogosphere presents, and ironically, the accusations of irresponsibility against the blogosphere grow in proportion to the blogosphere's effectiveness in exposing the corruption and error which underlies so much of what the establishment media does. It is refreshing and encouraging -- as well as, I believe, a sign of what is to come much more frequently -- to see the substance and value of the blogosphere recognized in a newspaper like The Los Angeles Times.

(5) Scott "Big Trunk" Johnson, in a post entitled "Put Out More Flags," links approvingly to Mickey Kaus' protests over the display of Mexican flags at the immigration rally in California last week, and Kaus' related protest over the downplaying of this information by the Los Angeles Times. There have been many similar objections raised concerning the presence of Mexican flags at these rallies -- including, notably, by Big Trunk himself, who objected the day after the rally to the waving of the Mexican flag by a march participant and said: "I can't think of many things more likely to increase support for enforcing existing immigration law than the march of the illegals that took place in Los Angeles."

But there is one thing I couldn't help but notice -- that is, right next to Johnson's posts, and on the front page of Powerline, is an American flag, and right under it is an Israeli flag. I've never heard any of the people who protested the display of the Mexican flag object to that, and Johnson himself, who seems to find it objectionable to display the Mexican flag, seems to think it's perfectly appropriate to fly the Israeli flag.

Is there really some meaningful, rational distinction that can be drawn beteween these two acts? On what possible basis can one condemn the waving of a Mexican flag in the U.S. but think that it's pefectly appropriate and unobjectionable to wave the flag of some other country, such as Israel? Once a year, at least in Manhattan, there is an event called the "Israel Day Parade," in which tens of thousands of people parade through Manhattan waiving Israeli flags. Here's a representative picture of what it looks like:

How come Big Trunk, Michelle Malkin, and Mickey Kaus aren't objecting to that? Just to be clear - I am not arguing that it's proper to display Mexican flags or improper to display Israeli flags. I just don't see the rationale -- at all -- that would allow people such as Big Trunk to object to one while not only approving of, but engaging in, the other.

Tuesday, March 28, 2006

This Week in the NSA Scandal

As you can likely already tell, my blogging this week is going to be light. It appears I'm now in the "things-are-very-serious" stage of producing this book, where editors yell and become all nervous if you're not constantly cranking out new material like a good, focused workhorse. Fortunately, I have had superb guest posts courtesy of A.L. and Hypatia and hope to have some more soon. Until then, a few quick notes:

(1) The Senate Judiciary Committee is holding hearings again today on the NSA scandal. One can watch them live on C-SPAN here. The morning panel is composed of four federal judges. From the bits and pieces I've subjected myself to thus far, it appears that their purpose is to heap praise on Sen. Specter's "new legislation" and drone on about how the Constitution clearly allows Congress to grant the President broad eavesdropping powers for foreign intelligence purposes without having to bother with case-specific probable cause showings.

The afternoon panel ought to be much more instructive and interesting. It includes Morton Halperin, currently with the Center for American Progress and formerly with the ACLU, whose telephones were tapped under the Nixon Administration, something which was discovered only by the Church Committee.

The other panelist is David Kris, formerly with the Bush Justice Department (and now with Time Warner). Kris testified in front of the Judiciary Committee in 2002 regarding FISA and made what appear to be false statements about the Administration's eavesdropping activities, likely because he was not advised of the illegal eavesdropping the President had ordered. He also, as Marty Lederman recently discussed, authored very strong memoranda which were highly critical of the Administration's "legal justifications" for eavesdropping in violation of FISA.

(2) It is still early in the year, but I am quite confident that these statements from Sen. Carl Levin, which he made this weekend on FOX with Chris Wallace, will end up at the very top of the list of Most Infuriating Statements of the Year once we are at the end of 2006:

WALLACE: Well, let me ask you, just to press this a little bit further, one of your colleagues on this subcommittee, a Democratic colleague, Senator Diane Feinstein, came out afterwards and said that she thought it was a very impressive program and didn't have a contrary word to say about it.

LEVIN: Well, she has, obviously — she feels comfortable saying what she wants to say about her briefing. I don't want to say anything about the way this program operates or reach any conclusion until my briefings are concluded.

But then again, I hope to be able to find a way that I can either look people in the eye and say this program is one where there is probable cause of the precise type that the president assured the nation.

That to me is critical. Then if there is probable cause to believe that these people who are engaged in these conversations are Al Qaeda-connected agents or members, then the question is is it legal, or do you have to modify the law in order to make it legal.

WALLACE: But there's a political reality in this, too, as I don't have to tell you. Do Democrats want to be in the position of investigating the president for possible censure, a president in the middle of wartime, over a program that, at least according to some people who have been briefed on it, including a Democrat, does a good job in protecting the American people?

LEVIN: No, I think it's premature to reach any conclusion about censure, and I would first put the inquiries before you reach any conclusion.

WALLACE: Do you think it was helpful to even raise the idea?

LEVIN: No, I think to say that you should censure the president before you have had the inquiries is premature, so I don't think it's helpful to reach that conclusion at this point.

The whole interview is like that. I just picked the worst of it. Carl Levin obviously believes that it is perfectly acceptable for the President to break the law just as long as it turns out that his illegal conduct is driven by good intentions. To Sen. Levin, this is what the NSA scandal is about:

the question is is it legal, or do you have to modify the law in order to make it legal.

If it turns out that they were not abusing the eavesdropping power, then it is perfectly fine with Sen. Levin if the President broke the law. If the President broke the law, then the duty of the Senate is to "modify the law in order to make it legal" because, after all, the President broke the law for the "right reasons." As Daniel Webster warned: "Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions."

It is truly astonishing to watch politician after politician -- Republican and Democrat alike - parade forward and expressly say that there may be nothing wrong with the President having eavesdropped on Americans in violation of the law.

Really - what American can grow up in this country and think that way? If it had been the case that the President merely broke the law on, say, September 13, 2001 for a few days as an emergency measure until the law could be quickly changed, that would be one thing. The lawbreaking would be wrong, but it would be a different matter altogether. Here, the President has been breaking the law for four years, deliberately and consciously. And Sen. Levin thinks that when that gets revealed, the solution is to figure out how to make the President's illegal conduct become legal.

So much for the rule of law. In the world of Sen. Levin, the new principle is: "If you think you're doing good, feel free to break the law." That isn't hyperbole or interpretation. That is really what he's saying.

(3) The Judiciary Committee, as you probably already know, is holding hearings on Friday on Sen. Feingold's censure resolution. Christy at FDL is coordinating blogosphere action for Friday.

The fictitious Kyl/Graham "floor debate"

By Anonymous Liberal

Today the Supreme Court will hear oral arguments in the case of Hamdan v. Rumsfeld. The Court will be called upon to determine--among other things--whether a provision in last year's Detainee Treatment Act ("DTA") effectively strips the Court of jurisdiction to hear Hamdan's case. The Government contends that it does and in support of this position, Republican Senators Lindsey Graham and John Kyl have filed an amicus brief with the Court.

This amicus brief argues that the legislative history of the DTA supports the Government's position. Specifically, the brief cites a lengthy colloquy between Senators Kyl and Graham themselves which purportly took place during a Senate floor debate just prior to passage of the bill. In the exchange, both Kyl and Graham suggest that the bill will strip the courts of jurisdiction over pending detainee cases such as Hamdan. But here's where the story gets interesting.

Apparently this entire 8 page colloquy--which is scripted to read as if it were delivered live on the floor of the Senate, complete with random interruptions from other Senators--never took place. It was inserted into the Congressional Record in written form just prior to passage of the bill.

Lyle Denniston at SCOTUSblog--who appears to have been the first to pick up on this juicy story last Thursday--noted that the authenticity of the floor debate was disputed by Hamdan's attorneys in their reply to the Government's brief. Hamdan's attorneys pointed out that the C-SPAN footage for Dec. 21, 2005--the date this debate supposedly took place--shows no sign of Senators Kyl or Graham (or, for that matter, the other Senators who appear in the record).

Emily Bazelon at Slate--citing "Senate officials"--confirms that the entire colloquy was inserted, not delivered live. Bazelon writes:

The problem is that Kyl and Graham's colloquy didn't actually happen on Dec. 21. It was inserted into the Congressional Record just before the law passed, which means that the colloquy did not alert other members of Congress to the views it contains. Inserting comments into the Record is standard practice in Congress. What's utterly non-standard is implying to the Supreme Court that testimony was live when it wasn't.

But that's exactly what Graham and Kyl appear to have done in their brief. In response to the contention by Hamdan's attorneys that the legislative history is meaningless because it was inserted into the record without debate, the brief states the following:

[T]he Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet, indicating "statements or insertions which are not spoken by a Member of the Senate on the floor," or are
underlined, indicating that they are "words inserted or appended, rather than spoken, by a Member of the House on the floor."

And guess what, there's no bullet or underlining in the relevant part of the Congressional Record. The Kyl/Graham amicus brief also quotes various lines from the colloquy as evidence that it took place prior to the passage of the bill. It quotes Sen. Graham as saying: "I want our colleagues to know exactly what they will be agreeing to" (emphasis in original).

Bazelon even catches Senator Brownback's office in an apparent lie. Brownback makes a cameo in the scripted dialogue, asking if he "might interrupt" and ask a question. Bazelon writes:

I called Brownback's office to ask if he'd given this testimony live on the Senate floor. "Yes, it was live," an aide told me. I said that I'd been told otherwise by Senate staffers and mentioned the C-SPAN tape. "Let me call you back," the aide said. She never did. Nor did Kyl or Graham's press reps.

Now I realize that the Congressional Record is often not what it appears to be. Much of it is inserted at the last second. And even when statements are delivered live, there are often no other senators in the chamber. But this particular episode appears to go well beyond the normal charade.

What we have are two Senators falsely suggesting--to the highest court in the land--that an imaginary dialogue inserted in the Congressional Record was in fact a live floor debate which reveals the definitive intent of Congress. If all this is true--and it certainly appears to be--Senators Kyl and Graham have some explaining to do.

Monday, March 27, 2006

Prison & the War on Drugs: Just Say No

GUEST POST - by Hypatia (with contributions from Pete Guither)

Whenever the offence inspires less horror than the punishment, the rigor of penal law is obliged to give way to the common feelings of mankind.

- Edward Gibbon: The Decline and Fall of the Roman Empire

And so if people are violating the law by doing drugs, they ought to be accused and they ought to be convicted and they ought to be sent up…too many whites are getting away with trafficking in this stuff. The answer to this disparity is not to start letting people out of jail because we're not putting others in jail who are breaking the law. The answer is to go out and find the ones who are getting away with it, convict them and send them up the river, too.

- Rush Limbaugh, October 5, 1995

While the War on Terror (or "The Long War") preoccupies the nation, there's another war on an abstract noun ("The Other Long War") that continues to be fought against Americans: The War on Drugs. That war’s central weapon is prison, but the enemy is not the select substances on which the war is ostensibly declared. Rather, the guns are aimed at -- often enough, literally -- every citizen who acts as if the individual, as opposed to the state, should be deciding what to put into his or her body. The human costs of this “war” on citizens have been incalculable, primarily because of prison.

While the United States constitutes 5% of the world's population, this “land of the free” holds 25% of the world's prisoners – a third to a half are there for drug offenses . With all the talk of Guantanamo and extraordinary rendition, many overlook that we have a Gulag Prison System here at home, fueled by our drug laws.

Most Americans seldom think about or discuss penal policies in any systematic or focused way. That failure is itself a poltical/ethical crime, because prison and its uses is a consummately moral issue. Sentencing citizens to prison entails sending armed agents of the state after them, then placing them at the tender mercies of scalp-seeking prosecutors, and if convicted, locking them in cages and robbing them of their autonomy.

For us to collectively decide that the consensual, adult use or sale of intoxicants will be criminalized, means we are agreeing that hundreds of thousands of our fellow Americans will experience life-destroying calamity. These POWs will be ripped from their communities -- and frequently from their children -- for years, decades and for life, pursuant to mandatory sentencing schemes as Draconian as those in any dictatorship; how else to characterize putting, e.g., non-violent, vegetarian 23-year-olds in prison for life for selling LSD at Grateful Dead concerts? (It is some small measure of progress that in New York, they recently did away with the life sentences for drug offenders.)

Instead of being with their families, these citizens will be confined among a population teeming with violent predators, under harsh and terrifying conditions. Conditions in which, especially for the disabled, their health often cannot be maintained, as this shameful example shows, as does the case of Lillie Blevins, a non-violent woman who died while serving her life sentence for conspiracy to sell crack cocaine.

As bad as the wretched attention to health, if not worse, is the fact that in many prisons drug-offender “criminals” cannot be (or are not) meaningfully protected from rape and assault. And the drug war is directly feeding prison rapes. Tom Cahill, President of Stop Prisoner Rape, declares:

I credit the war on drugs with the tremendous increase in prisoner rape. Most prison rape victims are in for minor nonviolent offenses. The victim profile is a young adult heterosexual male, maybe small or with a slight frame, confined for the first time for a minor victimless crime such as possession of a little too much marijuana -- and too poor to buy his freedom. . . .

This epidemic of prison rape is just one more way the war on drugs is causing much more harm than the drugs themselves. These men and boys who are raped in prison will usually return to the community far more violent and antisocial than before they were raped. Some of them will perpetuate the vicious cycle by becoming rapists themselves in a misguided attempt to "regain their manhood" in the same manner in which they believe it was "lost."

(Women drug offenders are raped as well, sometimes with tragic consequences.)

If most of us don’t ponder these brutal facts of prison life that often as we go about our daily lives, well, the mind will concentrate on it mightily if oneself or a family member is facing a drug conviction. At that point, HBO series about life in the slammer cease to constitute gripping, salacious entertainment, and become instead foreknowledge of an imminent, waking nightmare. Indeed, the soul-sickening dread of prison has induced suicides, for example, a married couple from the heartland who endangered the republic by growing marijuana plants in their home:

Last fall . . . Dennis and Denise Schilling of Waukesha, WI,… hung themselves in a Madison motel room after being threatened with prison sentences and the seizure of their home for growing marijuana. They, along with their 20-year-old son Joshua, had been arrested after a snitch and a narc bought a total of $120 worth of marijuana at the house. On September 25, five days after federal officials filed asset forfeiture papers against their home -- why the feds were involved with a penny-ante grow-up bust is yet to be explained -- the Schillings ended their misery.

(What do the feds say to themselves when they go to bed at night, one wonders? “Well, too bad they took it so hard, but those Schillings, they were such a menace?”)

But of all the under-reported tragic aspects of the drug war and prison, none is more poignant (and a source of outrage) than the children who have lost their parents, increasingly their mothers. The pleas from young sons and daughters to have their mother or father back can be simply heartbreaking. As can be the more elegantly drafted anguish of an adult child of a drug war victim, on the theme of visiting her father in his new “home”:

Knowing I am close to the solid, gray, steel door my heart pounds rapidly inside my chest. It jumps like a rabbit that has been caged up, then finally set free. This door is the entrance to a walk that consists of unkindness, coldness, and unhappiness. ... "Time is up, all inmates to the rear and all visitors to the front please." The men in crisp white shirts and flat gray pants look out into the room of smiles and those smiles quickly fade. I hug my father goodbye and a salty tear rolls down my cheek as I see my papa shed a tear of his own. He holds me tight and his mustache tickles my cheek. A smile is created. Remaining strong, I convince my legs to carry me past the rows of tables with chairs facing one another, all in a straight line.

The men in the crisp white shirts holler for us to say our goodbyes; if only they had to say goodbye as we do. I head towards the giant door that will take me on the walk, only this time it will be in reverse. I have no fears, just hope. Someday my papa will emerge into freedom with me, until then I will take this walk as often as needed, and I will remain strong.

Certainly one might think that in a political climate in which “family values” is such a pervasive trope, the public should be receptive to the passionate voice of a young man like Tyree Callahan, when he speaks on behalf of himself and his younger siblings whose father has been imprisoned since Tyree was 16 years old: "Drug war families want their loved ones back..."

And indeed, they do. Yet in this sweet land of liberty, in the name of a war on inanimate substances:

  • Renea Darby, a non-violent drug “mule” has never spent a free day with her 15-year-old son.

  • Ruth Carter is serving a 15 year, 7 month sentence on a drug conspiracy charge. While in prison and spending precious time away from her, Carter’s daughter was killed by a drunk driver (who she says spent a mere 8 months in prison).

  • Douglas Lamar Gray , a father and Vietnam War vet is serving a life sentence for the heinous crime of marijuana trafficking: Says Gray:

I was fined $25,000 and sent to the overcrowded maximum security prison in Springfield (Alabama) with murderers and violent criminals. When I was sentenced, my wife attempted suicide with a pistol because of the emotional and financial stress. Fortunately, she survived, but then filed for a divorce. I was an independent roofing contractor and owned my own business with six men working for me; and sometimes as many as 12. But now I have nothing except my 12-year-old son who needs me badly.

  • Loren Pogue never bought or used illicit drugs, but he sold some land to undercover federal narcotics agents who mentioned using it for drug trafficking, and so this "real estate agent, missionary, former serviceman, Mason, Shriner, Lions Club Member, American Legion, VFW, and past Director of a Children's Home" has been sentenced to prison for 22 years. "Five of Loren's children live over 3,000 miles from the prison in which he is held. He hasn't seen four of his children, or his wife in over 11 years [as of 2001]." This elderly enemy of the people has 27 children, 15 of whom are adopted.

The examples cited above could be reproduced by the tens of thousands: American parents, grandparents and otherwise productive citizens whose lives and families are destroyed by prison, because we have declared a “war” on plants, pills and powders. As G. Patrick Callahan, co-founder of the November Coalition hauntingly puts it:

    Our marriages rarely last, and prisoners are usually shipped far from their homes. Contact with our children is minimal and often lost. Within about two years the lives of all concerned are irrevocably altered, generally for the worst: wives divorce and remarry; children grow up. The prisoner watches it all from the glass coffin of a prison cell. Behind the wire we are subjected to unremitting harassment, degradation, danger and discomfort, separated from virtually everything that makes life worthwhile. The years pass, one into the next, and many men simply go around the bend.

    Drug addiction we are told – and it certainly is all too often true – can destroy a person. So to save us from ourselves, the government ruins millions of individual lives and those of their family members, by locking non-violent drug offenders in hellholes. Given that no sober citizen imbued with American values could see the moral sense in that, one might be forgiven for wondering what all the drug warriors have been smokin’.

    UPDATE (by Glenn): This comment from Hypatia, responding to the view that drug criminals get what they deserve because the harm is "self-inflicted," is highly worth reading.

    Sunday, March 26, 2006

    DoJ's Responses to Congress: The NSA Scandal in Microcosm

    By Anonymous Liberal

    As Glenn highlighted yesterday, the Bush administration has released written responses to questions about the NSA program submitted to the administration by the Republicans and Democrats on the House Judiciary Committee. If you haven't already read through these documents, I highly recommend it. Both the questions themselves and the administration's responses to them perfectly encapsulate everything that is so disturbing and frustrating about this scandal.

    The questions submitted by the Democrats are very simple, straight-forward legal and factual questions, usually no more than one line long. They are the obvious questions that anyone interested in understanding this issue (and its legal implications) would ask. The administration's "answers" to these questions are uniformly non-responsive and, for the most part, simply repeat boilerplate language about the classified and sensitive nature of the program. Even purely legal questions are completely dodged. It takes the DOJ only 15 pages to respond to all 45 of the questions submitted by the House Democrats.

    The questions submitted by the Republicans, however, are almost all long, convoluted, argumentative questions, many of which misstate key legal concepts. They are, for the most part, leading questions which assume away the most important distinctions in the law. The Republican questions are clearly not intended to augment anyone's understanding of the program, but rather to establish a legal and political defense for the administration. In stark contrast to the Democratic questions, the administration's responses to the Republican questions are generally fulsome and detailed (albeit highly misleading). It takes the DOJ a full 40 pages to respond to the 51 Republican questions.

    The administration's responses to the Democratic questions, particularly when compared side-by-side to its responses to the Republican questions, are as blatant an example as I've ever seen of partisan stonewalling. For instance, consider the response to this important question submitted by the Democrats:

    25. What is the limiting principle of the President's claimed inherent authority as commander-in-chief? For example, does this interpretation of the law authorize the opening of first-class mail of U.S. citizens under the DOJ's interpretation, and if not, why not?

    The DOJ response merely repeats the administration's boilerplate description of the NSA program and then states: "Whether the President's authority under the Constitution would permit the interception of mail would require a different legal analysis."

    The next Democratic question asks:

    26. Under the Administration's legal interpretation, does the President have the authority to wiretap Americans' domestic calls and emails under his inherent constitutional power and the AUMF, if he feels it involves al Qaeda activity?

    The DOJ response merely points out that NSA program is much narrower than programs authorized by President's Wilson and Roosevelt and ends by noting: "Interceptions of the contents of domestic communications would present a different legal question."

    Is it even possible to craft a less responsive answer to a legitimate and important legal question? The entire point of the question is that there does not appear to be any relevant legal distinction between intercepting calls to which one party is a U.S. citizen and calls where both are; the Democrats want to know--for obvious reasons--why the Bush administration's legal reasoning doesn't extend to purely domestic calls. In response they are told merely that interception of domestic communications "would present a different legal question."

    That's an insulting and totally unacceptable response to an incredibly important (and purely legal) question. There is simply no excuse for this behavior in our system of government. Congress has a right to have questions like this answered, particularly when the DOJ, at the same time, offers long-winded responses to Republican questions that are nowhere near as fundamental or important.

    Indeed, the responses to the Democratic questions at times contradict the responses to the Republican questions. Throughout the Republican responses, the DOJ plays up the importance of the line of dicta in In re Sealed Case, the 2002 decision by the FISA court of review. Indeed the administration's entire legal position hinges on that line; it's the only case they cite in response to numerous questions. At one point in the Republican response--citing Sealed Case--the DOJ states that "the President was entitled to rely on the definitive pronouncement of the specialized court that Congress created to address precisely these matters." In other words, In re Sealed Case, offers the "definitive pronouncement" on the issue of whether the President has the inherent authority to conduct warrantless surveillance, regardless of what FISA says.

    This is, of course, total rubbish, something the DOJ all but acknowledges in its responses to the Democratic questions. Given the administration's clear reliance on this particular line of dicta in Sealed Case, the House Democrats asked an obvious question:

    36. Was any judge on the FISA court of review informed of the NSA program as part of the briefing of the 2002 appellate case, In re Sealed Case? Were any of the lawyers on that case read into the program? How many?

    Here's the administration's response:

    As we noted above, the identity of individuals who have been briefed into the Terrorist Surveillance Program is generally classified. We note, however, that In re Sealed Case, 310 F.3d 717 (For. Int. Surv. Ct. Rev. 2002), involved whether the FISA Court had statutory or constitutional authority to place restrictions on interaction of criminal prosecutions and foreign intelligence investigators as a condition for granting surveillance orders. The Terrorist Surveillance Program would not have been relevant to the question before the court in that case (emphasis added).

    This is an explicit acknowledgement that the decision in Sealed Case had nothing whatsoever to do with the issue of whether the president has the inherent authority to act outside of FISA. It's also a tacit acknowledgement that no one involved the case even knew about the NSA program. Yet in the responses to the Republican questions, the DOJ describes this case as the "definitive pronouncement" on the issue of inherent authority. They devote literally pages to discussion of a case which they acknowledge has nothing to do with the legal questions raised by the NSA program and was argued and decided by people who had no idea that FISA was being circumvented. Indeed, the core holding of Sealed Case was that FISA is constitutional ("We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.")

    As an attorney, I can't even express to you how bewildering and pathetic it is to see the government repeatedly citing as their sole authority for a legal proposition--that the president's power to conduct warrantless surveillance survives FISA--a case that so obviously does not stand for that proposition.

    The questions asked the House Republicans and Democrats and the answers provided by the DOJ are a perfect microcosm of this scandal. One side asks simple, obvious questions that cry out for answers. The administration responds by stonewalling. The other side asks silly, misleading questions, and the administration responds with long, convoluted and equally misleading answers that fail to address all the most obvious objections and legal distinctions. And when presented with these insulting and incomplete responses, neither side does much of anything about it, and the media pays no attention. Wash. Rinse. Repeat.

    Saturday, March 25, 2006

    Administration tells Congress (again) - We won't abide by your "laws"

    The Republicans and Democrats on the House Judiciary Committee submitted detailed questions to the Bush Administration regarding the NSA program, and the DoJ's responses to both the Democrats' questions and its responses to the Republicans' are now available.

    There are numerous noteworthy items, but the most significant, by far, is that the DoJ made clear to Congress that even if Congress passes some sort of newly amended FISA of the type which Sen. DeWine introduced, and even if the President "agrees" to it and signs it into law, the President still has the power to violate that law if he wants to. Put another way, the Administration is telling the Congress -- again -- that they can go and pass all the laws they want which purport to liberalize or restrict the President's powers, and it does not matter, because the President has and intends to preserve the power to do whatever he wants regardless of what those laws provide.

    Question number (5) from the Committee Republicans asked "whether President Carter's signature on FISA in 1978, together with his signing statement," meant that the Executive had agreed to be bound by the restrictions placed by FISA on the President's powers to eavesdrop on Americans. This is how the DoJ responded, in relevant part:

    The Constitution is the supreme law of the land, and any statutes inconsistent with the Constitution must yield. The basic principle of our system of government means that no President, merely by assenting to a piece of legislation, can diminish the scope of the President's constitutional power. . . .

    Just as one President may not, through signing legislation, eliminate the Executive Branch's inherent constitutional powers, Congress may not renounce inherent presidential authority. The Constitution grants the President the inherent power to protect the nation from foreign attack, and Congress may not impede the President's ability to perform his constitutional duty.“ (citations omitted).

    Can that be any clearer for you - Congressmen, Senators, journalists? The President is bestowed by the Constitution with the unlimited and un-limitable power to do anything that he believes is necessary to "protect the nation." Thus, even if Congress passes laws which seek to limit that power in any way, and even if the President agrees to those restrictions and signs that bill into law, he still retains the power to violate it whenever he wants.

    Thus, Sen. DeWine can pass his cute little bill purporting to require oversight, or Sen. Specter can pass his, or they can do nothing and leave FISA in place. None of that matters, because no matter what Congress or even the President do with regard to the law, the law does not restrict what the President can do in any way. They are telling the Congress to its face that all of the grand debates it is having and the negotiations it is conducting are all irrelevant farces, because no matter what happens, the President retains unlimited power and nothing that Congress does can affect that power in any way.

    The reality is that the Administration has been making clear for quite some time that they have unlimited power and that nothing -- not even the law -- can restrict it. But here, they are specifically telling Congress that even if Congress amends FISA and the President agrees to abide by those amendments, they still have the power to break the law whenever they want. As I have documented more times than I can count, we have a President who has seized unlimited power, including the power to break the law, and the Administration -- somewhat commendably -- is quite candid and straightforward about that fact.

    I believe that even people who are aware of these facts have not really ingested or accepted the reality that we have an Administration that has embraced this ideology of lawlessness. Yesterday, I received numerous e-mails from people asking why I had not written about this report from the Boston Globe, which reported:

    When President Bush signed the reauthorization of the USA Patriot Act this month, he included an addendum saying that he did not feel obliged to obey requirements that he inform Congress about how the FBI was using the act's expanded police powers.

    The reason I didn't was because, as extraordinary as this signing statement is in one sense, it really reveals nothing new. We really do have an Administration which believes it has the power to break all laws relating, however broadly, to defending the country. It has said this repeatedly in numerous contexts and acted on those beliefs by breaking the law -- repeatedly and deliberately. They are still breaking the law by, for instance, continuing to eavesdrop on Americans without the warrants required by FISA.

    This is not theory. The Administration is not saying these things as a joke. We really do live in a country where we have a President who has seized the unlimited power to break the law. That's not hyperbole in any way. It is reality. And the Patriot Act signing statement only re-iterates that fact.

    In response to the Republicans' question (number 27) about whether President is exceeding his power by not just executing the laws but also interpreting them, the DoJ said this:

    In order to execute the laws and defend the Constitution, the President must be able to interpret them. The interpretation of law, both statutory and constitutional, is therefore an indispensable and well established government function. . . .

    The President's power to interpret the law is particularly important when he is engaged in a task -- such as the direction of the operations of an armed conflict -- that falls within the special and unique competence of the Executive Branch.

    The "unique competence of the Executive Branch," to them, encompasses pretty much everything of any real significance, including what can be done to U.S. citizens on U.S. soil. With regard to all such matters, the President not only executes the law, but interprets it, and Congress is without power to do anything to restrict the power in any way. Here they are -- saying exactly this, again.

    Put another way, the Administration has seized the power of Congress to make the laws, they have seized the power of the judiciary to interpret the laws, and they execute them as well. They have consolidated within themselves all of the powers of the government, particularly with regard to national security. This situation is, of course, exactly what Madison warned about in Federalist 47; it really is the very opposite of everything our Government is intended to be:

    From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.

    His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority.

    As usual, the most amazing aspect of all of this is not that the Administration is claiming these powers. It is that even as it claims them as expressly and clearly as can be, the Congress continues to ignore it and pretend that it still retains power to restrict the Administration by the laws it passes. And the media continues to fail in its duty to inform the country about the powers the Administration has seized, likely because they are so extreme that people still do not really believe that the Administration means what they are saying. What else do they need to do in order to demonstrate their sincerity?

    Friday, March 24, 2006

    The Bush movement is unburdened by behavioral standards

    (updated below - updated several more times)

    I haven't blogged about the raging blogosphere controversy arising out of the hiring by WashingtonPost.com of former Redstate.org blogger and Republican operative Ben Domenech because I have not had much to say about it. I thought the hiring reflects some highly questionable editorial judgment, given that Domenech's writings are trite, rage-fueled rants filled with mindless talking points which one can find anywhere -- he aspires to be some sort of juvenile online Rush Limbaugh -- but WashingtonPost.com has the right to associate itself with that level of writing and analysis if it wants. And while there are some journalistic issues raised by the supposed need for "balance," others have discussed that issue thoroughly.

    But now that it has been conclusively demonstrated that Domenech is guilty of a long pattern of repeated, deliberate and extensive acts of outright plagiarism -- routinely lifting paragraph after paragraph verbatim from other people's articles when purporting to write his own -- this little episode does now illustrate a significant dynamic worth commenting upon. Most Bush supporters have no behavioral standards of any kind and will defend any behavior at all -- no matter how venal or corrupt -- as long as it's engaged in by a fellow Bush supporter. Allegiance to the Bush movement outweighs every other attribute, and renders acceptable, even justifiable, even the most dishonest and reprehensible conduct.

    Plagiarism is a serious and destructive offense. It has nothing to do with political views or ideology. Copying someone else's writing and claiming it as your own is deceitful, fraudulent and wrong. It is stealing. And Domenech is clearly guilty of that -- deliberately and repeatedly.

    But Domenech loves George Bush and works as a Republican operative. He worked for Sen. Jon Cornyn, was a RedState regular, and edited Michelle Malkin's book. So behavioral standards don't apply to him. By definition, nothing that he does can be wrong -- certainly not that wrong -- because he's a person at his core who is incapable of doing anything truly blameworthy, and the proof of that is that he is a Bush supporter. As a result, in the face of this truly disturbing and facially conclusive evidence that Domenech is a serial plagiarist, his comrades at RedState are searching around desperately for some rationale to defend and justify his conduct, literally insisting that there is nothing wrong with overt acts of deliberate plagiarism.

    I first began writing about the NSA scandal when -- almost immediately after the New York Times had disclosed the program, literally the day after -- I began reading in the blogosphere all sorts of twisted, plainly uninformed "legal" justifications from Bush followers as to why the eavesdropping the NSA was engaged in actually has nothing to do with FISA, how it's not even the type of eavesdropping covered by FISA.

    There was one particular "legal theory" created by a Bush follower who deliberately misquoted FISA in order to create a facially false claim as to why FISA does not require warrants for the type of eavesdropping Bush ordered -- a justification that was instantaneously disseminated far and wide by Bush lovers such as Instapundit, a law professor, whose only desire was to find some justification for Bush's behavior before having any idea if the behavior was justifiable. That justification was never even raised by the Administration and was quickly discarded once revealed as fraudulent, but the speed and disregard for the truth which characterized its instantaneous adoption was truly amazing.

    What was so striking in that case was how immediately these defenses were concocted and spread like some aggressive virus. Bush followers had no interest in knowing whether the Commander-in-Chief broke the law. Their sole interest was in hunting around desperately to find some explanation as to why he did nothing wrong -- before knowing if he actually did. He is George Bush, and he therefore can do nothing improper, or if he did, it is for good reasons and therefore should be defended. And that ethical shield extends to all Bush followers.

    That same standardless, ethics-free mindset is thus painfully apparent with Domenech's plagiarism. Domenech is a Republican operative, Malkin editor, and Bush supporter. He is inherently ethical, and any charges that he has done anything improper are to be rejected regardless of the evidence and without even waiting to consider it.

    RedState's Leon Wolf initiated the defense-at-all-costs of Domenech by first claiming that he was only 16 or 17 years old when these offenses were committed and this outright, extensive plagiaraism was merely an innocent and understandable matter of not being "fluent in APA guidelines for blockquoting and attribution." Once it was revealed that some of this plagiarism was actually quite recent, when Domenech was in college (he's now 24), Wolf shifted his defense to the only thing he had left -- an outright justification of plagriaism. Wolf explained that he recently read a book and:

    Since I've read that book, I've been chewing a lot of the ideas in my head, and I'm sure if you read over my posts from the last month, you'll find me saying things that are on the surface very similar, and it's possible that I may have even used some identical turns of phrase (although this certainly was not intentional and I didn't have a copy of the book in front of me while writing any of the aforementioned posts.) That's not plagiarism, that's being influenced.

    All the same, Ben can answer for himself on these issues. I stand by my original comment in this thread, however (I think it's number three), and will continue to do so even if someone produces a videotape of Ben doing everything they've accused him of - because none of what he did in his teenage years, even if we grant that it is all true - will diminish from the truth and strength of what he is doing now.

    There are now posts up at RedState entitled "We Must Defend" and "We Must Attack," insisting that Domenech did nothing wrong and demanding that Bush followers defend him regardless of whether he did. The former actually claims that all of this seems like plagiarism "only because permissions obtained and judgments made offline were not reflected online by an out dated and out of business campus newspaper"-- as though all of the magazines and journals in which his plagarized articles appear, including magazines such as National Review, really did arrange permission with all of the authors from whom Domenech stole but simply forgot to include that permission. They resort to every excuse, every justification, every false defense in order to shield their comrades, or, like Michelle Malkin and Powerline, who were eager to defend and praise Domenech before he stood revealed as a serial plagiarist, they say nothing.

    It is a base, tribal mentality where group allegiance cleanses any and all wrongdoing and immunizes the individual from any accusations of wrongdoing. We have seen this play out over and over with every Bush scandal, where no conduct is too extreme and too facially wrong to be beyond their willingness to defend it away and justify it. If you support George Bush, you can do anything -- including stealing, like Domenech did repeatedly and extensively -- and still be defended, because your allegiance to the Leader means that anything you do is good, right and justifiable. That is the mentality that has been governing our country for five years now, and it is vividly apparent with this tawdry debacle.

    UPDATE: Pro-Bush blogger Patterico commendably comments on the Domenech scandal, admitting that, at the very least, it is an "embarrassment." He also says he is "suspicious" about RedState's facially ridiculous defense of Domenech that the newspapers simply forgot to include all of the permissions they obtained for Domenech to lift all of that material. And he points out:

    We all talked up the fact that this guy was getting a blog on the WaPo. This is a genuine issue, and it should be discussed on conservative blogs.

    We'll see if his fellow pro-Bush bloggers heed his invitation for this discussion.

    UPDATE II: Credit where it's due - other right-wing bloggers have now condemned Domenech's plagiarism, including Political Pit Bull and Confederate Yankee. Dan Riehl says that "if the facts are as they appear - Ben Domenech has to go. And the sooner the better." Riehl adds:

    If the plagiarism allegations are true and RedState and other notable right wing bloggers stand behind Domenech - it won't be because of principle. It'll simply be a classic example of cronyism and connections getting in the way of the truth.

    Indeed. How much longer can Red State go without retracting their false claims in defense of him and acknowledge that their founder is a serial plagiarist? How much longer can bloggers like Malkin and Powerline who defended Domenech remain silent about this, particularly Malkin, who called Domenech "[m]y very smart and talented editor, Ben Domenech, of Regnery Publishing."

    UPDATE III: I think we also need to be hearing quite soon from Hugh Hewitt, since Domenech also edited his latest book. Hewitt says about him:

    Domenech is a superb writer/reporter and very well wired on all things conservative. He's also coming to his job from Regnery, where he has just finished editing my new book.

    This strikes me as a very significant story now. The founder of RedState and Regnery editor (who, among others, edited the latest books of Michelle Malkin and Hugh Hewitt) is a serial plagiarist, and Red State is issuing factually false defenses to justify his behavior.

    Domenech has been skyrocketed up the movement ladder quickly because his father is a well-connected Bush loyalist and he has obviously learned the art of limitless and ethics-free political warfare. In many ways, he's a poster child for the Bush movement. And the fact that WashingtonPost.com hired him to be one of their in-house bloggers in response to right-wing pressure, while his allies defend even his most indefensible conduct, is quite a case study of so many significant things.

    UPDATE IV: Michelle Malkin steps up with a commendably forthright post condemning the serial plagiarism of her book editor and opining:

    I certainly understand the impulse on the Right to rally around Domenech. But I can't ignore the plain evidence. And the charges can't be dismissed as "lies" or jealousy attributed to Ben's age.

    The bottom line is: I know it when I see it. And, painfully, Domenech's detractors, are right. He should own up to it and step down.

    She closes, however, on a sour note:

    Then, the Left should cease its sick gloating and leave him and his family alone.

    The pro-Bush blogosphere has built a name for itself by viciously swarming around vulnerable people and trying to end their careers. Ask Dan Rather. Or Eason Jordan, whose career death Malkin celebrated here:

    The MSM calls it a lynch mob. I call it a truth squad.

    The likes of Powerline, Instapundit, Capitan Ed ("I think we all can take some justified satisfaction with our small part in changing the world tonight."), and Hugh Hewitt all engaged in an orgy of self-congratulations over their tireless, and ultimately successful, efforts to destroy Jordan's career. And we can now undoubtedly look forward to some more pious intoning from that same corner about the horror of lynch mobs and feeding frenzies and the like.

    Speaking out of both sides of the Bush-loving mouth

    By Anonymous Liberal

    Glenn has done an excellent job over the last two days explaining why it makes no sense for Democratic senators to withhold judgment on Sen. Feingold's censure resolution pending the completion of an investigation that 1) is not going to happen, and 2) could not possibly yield any additional facts that are relevant to determining the legality of the President's warrantless surveillance program(s).

    The problem here is that the administration's defenders have conflated policy analysis with legal analysis, and most Democrats are either unable or unwilling to point out the difference. Indeed, the Jeff Goldsteins of the world readily declare the NSA program to be good policy while, at the same time, insisting that "we DO NOT have enough information to make an informed judgment about the program's legality." In other words, we must remain agnostic about the legality of the program pending further investigation, but we do not need further investigation to know that the program is good and effective and does not unreasonably infringe on our civil liberties.

    It is impossible to understate just how incoherent and ass backwards this position is. Policy analysis is much more fact-intensive than legal analysis. To know whether or not something is good policy you generally need to know ALL the facts. That's just the nature of policy analysis. One small detail can turn an otherwise good policy into a spectacularly bad one.

    The same is not at all true of legal analysis, which relies almost entirely on public documents (statutes, published opinions, the Constitution, etc.). Determining whether an activity runs afoul of the law only requires knowing a few legally significant facts. The remaining details may augment or diminish the extent of the wrongdoing, but they do not bear on the legality of the conduct at issue. As both Glenn and I have explained ad nauseum, the facts necessary to evaluate the legality of the NSA program are not even in dispute. The administration has admitted that the type of surveillance it is conducting requires a warrant under FISA, and it has admitted that warrants were not obtained. The rest is purely a matter of law. As Glenn explained the other day:

    [A]ll of the facts relevant to the question of whether the President broke the law (the only issue raised by the Feingold Resolution) are already known, and for that reason it is illogical to claim that an investigation is needed before that question can be answered. Put simply, we don't know the scope and extent of the President's illegal eavesdropping, but we do know that the eavesdropping he ordered was illegal.

    But while the censure debate is ripe for discussion, the greater policy debate is most certainly not. We don't know how the program works, what technology or processes it employs, how effective it is, what safeguards or oversight (if any) are in place, or whether there has been any abuse. All of these facts are highly relevant to any policy analysis of the program and can only be determined through further investigation.

    Nevertheless, the same Republicans who claim that Russ Feingold's legal pronouncements are uninformed and premature are unwilling to investigate this program and appear determined to press ahead with legislation that would render it legal (at least going forward).

    Before long, Democrats (and Republicans) in the House and Senate will be forced to vote on this legislation, which, if passed, will gut the Foreign Intelligence Surveillance Act, a law that has governed the surveillance of Americans for almost 28 years and has been fine-tuned by Congress on numerous occasions (most recently two weeks ago). Between now and the time that bill comes up for a vote, there will be no Congressional investigation, no further fact-finding. Indeed, for most members of Congress, there will not even be a classified briefing. Our representatives and senators will be asked to legislate in the dark, to make a policy judgment about a program of which they know virtually nothing--except, of course, that it's currently illegal.

    When that day comes--and it will--what do Democratic Senators plan to do? They won't know any more about the program than they know now, and they will be expected to make a policy judgment, not a legal one. They'll be expected to vote "yay" or "nay" on a bill called the Terrorist Surveillance Act of 2006. Do they really think that if they just lay low and remain agnostic, this issue will go away? Do they think they'll be able to punt on this issue indefinitely?

    This battle cannot be avoided (nor should it be). Democrats can either choose to set the terms of the debate by going on the offensive and supporting Feingold's resolution, or they can once again allow the GOP to define the debate. Instead of a debate over censure we can have a debate over the Terrorist Surveillance Act of 2006.

    As the minority party in Congress, the only weapon the Democrats have is symbolism. Feingold's censure resolution offers a platform for Democrats to frame the upcoming debate, to explain to America that President Bush broke the law and that his own party has refused to investigate it. It is an opportunity to put the administration on the defensive. If the GOP then moves ahead with an attempt to legalize the President's conduct, the Democrats will have already made it clear to the public why they cannot support such a bill. Their opposition will seem principled and consistent. The Terrorist Surveillance Act will look like what it is, a piece of cover-your-ass legislation introduced only after the President had been caught red-handed breaking the law.

    If the Democrats wait until the DeWine bill comes to the floor to speak up, they will once again come across as indecisive and weak. They will allow the administration to frame this issue as one of terrorism policy, as opposed to presidential law-breaking.

    This issue is not going to go away. The context in which it plays out is entirely up to Democrats in the Senate.

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