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, March 01, 2006

Important developments in the NSA scandal

(updated below)

There were multiple noteworthy developments yesterday in the NSA scandal:

(1) There is a truly amazing 50-state survey (h/t Markos) on the views of Americans regarding the NSA scandal -- and specifically their beliefs about whether George Bush broke the law. In 37 out of 50 states -- including numerous pure red states -- a plurality believe that it is "clear" that Bush broke the law. The best state for Bush is Oklahoma, where only 42% believe that he clearly did not break the law - the highest number of any state which believes that.

And, in almost every state, between 20-25% believe it's not clear one way or the other, which demonstrates that scores of people are still open to being persuaded on this question. And added to that is the fact that three consecutive polls (.pdf) now show that a majority of Americans believe that George Bush broke the law when ordering warrantless eavesdropping on Americans.

If we had a Democratic President and there were polls showing that a plurality of people across the country, in every region, had concluded that the President "clearly" broke the law -- and that a majority of Americans overall believe he did so as well -- would Republicans be taking advantage of that fact as aggressively as possible, or would they be running away from that issue in fear? And, what are Democrats currently doing with regard to the President's overt law-breaking and the fact that, despite the tepid and frightened posture of the Democrats, a majority of Americans have concluded that George Bush broke the law? Within the answers to those questions lies the most compelling explanation as to why the Bush Administration has thus far been able to get away with all sorts of ineptitude, corruption and wrongdoing -- even getting re-elected in the middle of it all.

A plurality of Americans across the country believe that the President is "clearly" engaged in criminal acts, and a majority of all Americans believe he broke the law. That is a startling state of affairs. And large numbers of people who have not yet reached that conclusion are open to be being persuaded. What possible excuse exists for Bush opponents not to engage in full-throated efforts to persuade them? This is a weakened, highly unpopular President who has broken the law and most Americans know that. Is there any conceivable justification -- ethical, political, strategic or otherwise -- for Bush opponents and proponents of the rule of law not to pursue this law-breaking as tenaciously as possible?

(2) The Senate Judiciary Committee held hearings on the NSA scandal yesterday with a panel of professors and former government officials (including conservative Administration critic Bruce Fein and the odious defender of Bush law-breaking, Professor Robert Turner). Part of what happened is here:

Former Reagan administration Justice Department official Bruce Fein, an outspoken foe of the surveillance, told the committee that Congress ought to use its power to cut off the NSA program’s funding.

"The power of the purse is perhaps the greatest power the Founding Fathers entrusted to the legislative branch" and it "should be used now" to end the program, Fein said, unless Bush explains why he could not stay within the confines of the 1978 Foreign Intelligence Surveillance Act, which bans warrantless eavesdropping in the United States.

Former Clinton administration State Department official Harold Hongju Koh, who is now Dean of Yale Law School, told Specter’s committee that the NSA spying was "as blatantly illegal a program as I’ve seen."

If Congress went along with Bush’s rationale for the NSA spying, it "would turn this body into a pointless rubber stamp whose limited role in the war on terror would be enacting laws the president could ignore at will."

And Koh told Specter his bill wouldn’t remedy the problem. One reason: Specter’s bill would allow the FISA court to authorize the entire NSA spying program, not particular searches of particular people. Therefore it would allow a general warrant, which is what the Framers of the Constitution tried to ban by writing the Fourth Amendment, Koh said.

Unsurprisingly, Russ Feingold continued his heroic ways:

Asked where the NSA controversy was headed, Feingold said, "It’s up to Congress, whether Congress has the courage to stand up to an extreme assertion of executive power."

Feingold said cutting off funding is one option that he is looking at. "There’s a time and a place to do that which is coming up soon," he said.

He added, "We have to address the fact that the president has broken the law." Feingold also said he opposed Specter’s proposed bill because "it hands over congressional power to the executive a way that I think is very disturbing in terms of the protections in the Bill of Rights."

And, following up on the discussion here over the last few days about Arlen Specter, he apparently made statements at the hearings which makes clear that he believes that the program is illegal:

Numerous lawmakers, including Judiciary Committee Chairman Arlen Specter (R-Pa.), disagree [with the Administration’s claims that they can eavesdrop outside of FISA]. Specter says the NSA program violates the FISA law, and he is proposing legislation that would allow the FISA court to rule on the program's constitutionality and to oversee aspects of the surveillance operations.

I was unable to listen to the hearing, so if anyone finds where there is a transcript, I'd appreciate if you could post the link in Comments or e-mail it to me. From what I last heard, Specter still intends to call former DoJ officials James Comey, Jack Goldsmith and others to testify about the legality of the program, so the Juduciary Committee hearings will continue.

(3) For several weeks now, many people, including many at this blog, have speculated that two important as-yet-unrevealed facts were likely true: (a) that Gonzales’ conspicuous efforts to confine his statements defending the NSA program to "the program described by the President" strongly suggested that there are other warrantless eavesdropping programs directed at Americans on U.S. soil which have not yet been disclosed; and (b) the whole AUMF justification for the warrantless eavesdropping program is an after-the-fact justification which the DoJ only invented long after the program started; the notion that the AUMF exempted the Administration from FISA was not an actual understanding of the AUMF which anyone -- including the Administration -- had when the AUMF was enacted.

An important article from this morning’s Washington Post makes clear that both of those hypothesis are almost certainly true:

Attorney General Alberto R. Gonzales appeared to suggest yesterday that the Bush administration's warrantless domestic surveillance operations may extend beyond the outlines that the president acknowledged in mid-December.

In a letter yesterday to senators in which he asked to clarify his Feb. 6 testimony to the Senate Judiciary Committee, Gonzales also seemed to imply that the administration's original legal justification for the program was not as clear-cut as he indicated three weeks ago.

At that appearance, Gonzales confined his comments to the National Security Agency's warrantless wiretapping program, saying that President Bush had authorized it "and that is all that he has authorized."

But in yesterday's letter, Gonzales, citing that quote, wrote: "I did not and could not address . . . any other classified intelligence activities." Using the administration's term for the recently disclosed operation, he continued, "I was confining my remarks to the Terrorist Surveillance Program as described by the President, the legality of which was the subject" of the Feb. 6 hearing.

At least one constitutional scholar who testified before the committee yesterday said in an interview that Gonzales appeared to be hinting that the operation disclosed by the New York Times in mid-December is not the full extent of eavesdropping on U.S. residents conducted without court warrants.

"It seems to me he is conceding that there are other NSA surveillance programs ongoing that the president hasn't told anyone about," said Bruce Fein, a government lawyer in the Nixon, Carter and Reagan administrations.

And Gonzales all but admitted he was misleading in his testimony before the Committee because he tried to imply - falsely - that the Administration, from the beginning, interpreted the AUMF as authorization to conduct warrantless eavesdropping. As has been apparent for quite some time, nobody – including the Administration – ever interpreted the AUMF as providing such authorization until DoJ officials made clear that they had no legal justification for this program and therefore went in search of such justification, leading them to the fabricated AUMF claim:

On Feb. 6, Gonzales testified that the Justice Department considered the use-of-force vote as a legal green light for the wiretapping "before the program actually commenced."

But in yesterday's letter, he wrote, "these statements may give the misimpression that the Department's legal analysis has been static over time."

Fein said the letter seems to suggest that the Justice Department actually embraced the use-of-force argument some time later, prompting Gonzales to write that the legal justification "has evolved over time."

One government source who has been briefed on the issue confirmed yesterday that the administration believed from the beginning that the president had the constitutional authority to order the eavesdropping, and only more recently added the force resolution.

Given that: (a) not even the Senate has any idea what the scope is of warrantless eavesdropping on Americans; (b) it is clear that the lawless eavesdropping extends beyond what we know; and (c) a majority of Americans believe that the actions that we do know about are illegal, it is inexcusable – to put it mildly – for the Senate Intelligence Committee not to hold hearings on what our Government is doing in its warrantless, lawless eavesdropping on Americans. Speaking of which:

(4) The next two states we are targeting as part of our state-based effort to demand NSA hearings by the Senate Intelligence Committee are Nebraska (Hagel) and Maine (Snowe and Collins). It has been reported that both Hagel and Snowe are inclined to vote for Sen. Rockefeller’s motion to hold such hearings. That government officials have now confirmed the existence of other warrantless eavesdropping programs on Americans renders the need for hearings that much more urgent. If you live in Maine or Nebraska or have connections to that state and want to participate in what we are doing, please contact Jane Hamsher or Thersites at Vichy Democrats.

UPDATE: This article from the New York Times suggests serious Republican discord over what to do about this scandal -- including some substantial disagreement about Specter's proposed legislation to submit the entire program to adjudication and oversight by the FISA court:

Stepping into the growing debate in his party about the Bush administration's domestic eavesdropping, the Republican leader Bill Frist pushed a group of Republican senators on Tuesday to work out conflicting approaches to legislation to address the program.

Senator Frist's efforts reflect the increasing determination of Republican lawmakers to impose some form of oversight on the program, through which the administration has secretly sidestepped the existing legal authorities for years to spy on thousands of domestic communications with terror suspects abroad. But lawmakers and staff members leaving a meeting called by Mr. Frist said deep disagreement remained within the party over how to rein in the administration. . . .

Still, people at the meeting, speaking on condition of anonymity because its deliberations were supposed to be confidential, said the group remained sharply divided. . . .

Others in the meeting questioned whether the foreign-intelligence court's approval for the whole program might risk rejection by the Supreme Court, according to the people present. They said still others argued that involving a court would clash with the president's war powers. . . .

In contrast, Senator Mike DeWine, an Ohio Republican on the Judiciary Committee, is proposing legislation to give the administration authority to tap phone calls or e-mail with parties outside the country that involved a known member of a designated terrorist group on at least one end. . . .

Mr. Specter and Senator Chuck Hagel of Nebraska objected that Mr. DeWine's proposal left the administration too much leeway to spy on suspects without seeking outside approval, according to the people present. They also worried the proposal would retroactively legitimize the program before Congress learned it scope.

Congressional Republicans and Bush followers are going to want to depict these as minor differences, to be easily resolved at some point. They are anything but that.

The question which lies at the heart of this scandal - does the Bush Administration have the power to act free of Congressional and judicial oversight and restriction -- is the question which is deeply dividing his own party in Congress. And they seem unwilling to allow the issue of past law-breaking to be resolved until they know exactly what the scope of the eavesdropping was - not just with regard to the program revealed by the Times, but all eavesdropping programs aimed at Americans.

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