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, January 31, 2007

Various items

(updated below)

NSA expert James Bamford makes a vital point in a New York Times Op-Ed this morning: regardless of what happens with FISA issues going forward, George Bush violated the criminal law for the last five years by eavesdropping on Americans without warrants, and a federal court has already ruled that this is the case. Violations of FISA are felonies punishable by up to 5 years in prison and a $10,000 fine per offense.

Judge Taylor's court ruling is not tantamount to a finding of criminal liability (other issues, such as intent, would need to be demonstrated, and all sorts of other procedural safeguards would be due), but -- as I argued previously -- it is a binding ruling that the President's warrantless eavesdropping program violated the criminal law, and there is no justification for simply walking away from that and implicitly agreeing that there will be no consequences from the President's deliberate and continuous lawbreaking.

(2) As expected, the administration is attempting to persuade the Sixth Circuit (which has before it the Government's appeal of Judge Taylor's ruling) to dismiss the NSA lawsuit on the ground that it is now "moot." Marty Lederman details the status of those efforts, including the Government's odd request that the case not only be dismissed, but Judge Taylor's order be vacated -- a request Marty attributes to the desire on the part of the administration to preserve its ability to begin eavesdropping again in the future without warrants.

Along those lines, one hopes to see some genuine and aggressive follow-up on the demand by Pat Leahy and other Senate Judiciary Committee members to learn exactly what the administration is doing now with the FISA court. Jim Webb's refusal to be brushed off by the administration on the question of presidential authority to wage war against Iran ought to be the model used for this FISA issue and any other requests/demands for information made by the Congress. Genuine oversight is going to require vigilant, aggressive and relentless confrontation, not merely theatrics and earnest though inconsequential expressions of "concern."

(3) Terry "Nitpicker" Welch, who was formerly a Staff Sgt. and media affairs officer for the U.S. Army in Afghanistan, responds to the latest disgusting attempt by Michelle Malkin to cast a war journalist as an Al Qaeda ally. The target of Malkin's latest witch hunt is the courageous war correspondent for CBS News, Lara Logan (whose pointed and appropriately angry response several months ago to attacks by the Bush administration and Malkin-twin Laura Ingraham on journalists in Iraq was really superb -- if you haven't seen that, it is highly, highly recommended).

(4) Via Blue Texan, conservative blogger Austin Bay wrote a column in early December for the Austin-American Statesman which, in essence, voiced the accusations which right-wing bloggers at the time were making about the Associated Press and Jamil Hussein. Unlike most of them, Bay has now acknowledged that those accusations were unfouned, and he did the honorable thing -- published his own correction in the same paper, in which he wrote:

A columnist's mea culpa

In a column that ran in the American-Statesman on Dec. 1, I wrote that I doubted that an Associated Press source for a story originating in Baghdad existed. The story involved an allegation that six Sunni Arabs were murdered and set on fire. It turns out the AP source not only existed but had a two-year track record. The AP answered the questions raised on the two Web sites my column quoted. The Iraqi Ministry of Interior later admitted that police Capt. Jamil Hussein did work for the ministry in Baghdad.

The AP and other wire services are the backbone of truth on this planet. "New media" such as blogs still lack the reporting capacity of the wire services and major news operations. I am delighted to apologize to the Associated Press and congratulate the AP's Baghdad bureau for standing by their sources.

Bush followers wage war on any institutions which report facts, hence their hatred for the media, for Congressional oversight, for whistle-blowers. But as Bay notes, even with all of their flaws, we rely upon large media organizations to collect facts and keep us informed. That is particularly true for journalists in war zones (whatever you know about the Bush administration or Iraq or anything else that they did not want you to know, you know because journalists discovered and then reported it).

Those who want the media to improve criticize them. Those who want to block this truth-reporting function altogether wage war on the press and try to destroy their credibility completely. Most people do the former, while Bush followers (and the administration itself) do the latter. Bay, despite being a media critic, correctly ackonwledges what a critical function news organizations continue to perform. (And, just incidentally, congratulations are in order for Blue Texan, as he has picked up a new (or maybe not-so-new) reader).

(5) German prosecutors have issued arrest warrants for the individuals involved in what they are calling the kidnapping -- and that is what it was -- of Khaled al-Masri, a German citizen of Lebanese descent, who was abducted by the CIA and taken to Afghanistan and several other countries as part of our so-called "rendition" program, only to be released when it turned out he had nothing whatsoever to do with terrorism (as the Bush administration has privately admitted).

This is not a case of German prosecutors asserting universal jurisdiction in order to prosecute alleged war crimes that have nothing to do with Germany (a practice which, for reasons I set forth previously, I find objectionable). Instead, this is a German citizen who was kidnapped from Germany on his way from Germany to Macedonia with no due process whatsoever (and, needless to say, blocked by the Bush administration from obtaining justice in American courts). That is a crime and should be treated as one. (ADDED: It was Italy which previously issued arrest warrants for 25 CIA officers and an Air Force officer for kidnapping an Egyptian-born cleric off the streets of Milan and "rendering" him to Egypt for some torture).

(6) Hilzoy details the treatment of Chinese Uighur detainees at Guantanamo who are being held in round-the-clock solitary confinement even though, as Hilzoy says, they "were captured by bounty hunters nearly five years ago. They are in all likelihood innocent of any crime, and of any act against the United States; they have certainly never been tried and convicted of any." Hilzoy's discussion of this matter is characteristically thorough and well worth reading. One runs out of adjectives to describe things like this.

(7) In an obviously growing trend of political campaigns hiring bloggers, Pandagon's Amanda Marcotte has been hired by the John Edwards presidential campaign. That is part of a larger trend whereby the blogosphere is slowly ceasing to be its own closed, separate system and is instead seeping into, even merging with, all of the more traditional political and journalistic institutions. Whether that is something to celebrate or lament (and a case can probably be made for both), it is undoubtedly happening and will continue.

's new blog, Swampland, illustrates that trend. I'm no fan, to put it mildly, of any of the four Time writers at that blog, but they deserve credit for being much more responsive to, and interactive with, both commenters and other bloggers than journalists of that type usually are.

That Joe Klein and Karen Tumulty now regularly and directly hear criticism of their work from Atrios and company and even periodically engage that criticism can only have positive effects. That Time took some of its most establishment journalists and basically stuck them in the middle of the blogosphere, and that those journalists almost seem to relish their role as bloggers (albeit ones who represent and defend traditional, mainstream journalism), is, I think, an important and (more or less) positive development.

Along these lines, I will have a significant announcement about this blog in the next day or two. I apologize for the substance-less teaser, but I can't announce it yet, but it also seemed inexcusably coy to make the point I just made about the blogosphere without making clear that a related development is occurring with this blog and will be finalized in a day or so. The development is purely positive and I'm excited about it.


(8) One of the real downsides to Hillary Clinton's candidacy -- aside from the re-emergence of the dreadful egomaniac, Terry McAuliffe (h/t EWO) -- is that we're going to be subjected to all of the truly unpleasant psychological reactions which the Clintons generally trigger in people (especially journalists), but in this case, that will be severely exacerbated by all of the true psychological crises provoked by the possibility of a woman becoming the Chief Executive (and the "Commander-in-Chief") -- and not just any woman, but Hillary.

Digby examines -- in a hilarious though depressingly accurate way -- all of the issues revealed by Chris Matthews' discussion of the "Hillary joke," and included in the post is equally excellent analysis on the topic from the invaluable Bob Somerby.

(9) Now that Michelle Malkin and one of the blogger-employees she took along with her on her four-day, military-protected trip to Iraq have returned, they have begun claiming (the former implicitly, the latter explicitly) that they have special insight about the war and that nobody can disagree with their claims about the war who hasn't been there:

I’m not one to deploy the chickenhawk argument, but there really is something to the notion that unless you’ve seen a thing with your own eyes you may have a hard time understanding it. If you’re writing about a thing as often as Sullivan writes about the war, especially if you spend the bulk of your writings denouncing that thing, it’s irresponsible to stay as far away from that thing as possible. You have to, at some point, examine it for yourself.

Apparently, it's perfectly fine to cheer on the war without visiting Iraq (as they did for the last four years), but criticizing the war is terribly inappropriate for those who haven't paid that country a visit. D. Aristophanes at Sadly, No entertainingly gives that "argument" all of the respect it deserves.

(10) I highly, highly recommend this 1987 Bill Moyers PBS documentary on the Iran-Contra scandal specifically, and U.S. covert military operations generally. Moyers has a clear viewpoint that he does not try to hide, but the documentary is filled with indisputable and well-documented facts and superbly constructed. I linked to it yesterday, but only in a late update, so you may not have seen it.

(11) The German newspaper Spiegel has a must-read interview with Tyler Drumheller, the former chief of the CIA's Europe division, on issues ranging from rendition to the CIA's pre-war WMD conclusions (h/t MD). The interview speaks for itself, though it is amazing how little our own media reports things of this sort.

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