Daily Archives: December 21, 2005

Not Knowing When to Quit

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This evening on MSNBC I saw the “Clinton did it too” defense of Bush’s secret wiretapping knocked down by Andrea Mitchell, believe it or not, who is guest hosting Hardball, and by Alison Stewart, who is guest hosting Countdown.

Seriously. There were actual experts who patiently explained that presidents Clinton and Carter followed FISA regulations regarding wiretapping, which is way different from what Bush is doing. And for the most part these people were allowed to speak at length without being interrupted by a rightie goon. I was astonished.

This hasn’t stopped the VRWC echo chamber from pumping out the now utterly debunked lie that President Clinton believed he had an “inherent authority” to order warrantless wiretaps of American citizens. Today’s new twist is the “Gorelick Myth,” which Judd at Think Progress takes apart here. I assume the Faux News crew and the radio righties are going along with the program, so that people getting most of their news from O’Reilly, Limbaugh, et al. will never hear the debunking. And, of course, rightie bloggers are obediently falling into line.

And according to Atrios, people watching CNN this evening didn’t hear the debunking either.

This means we’re at Stage 3 of the Daou Dynamics of a Bush Scandal, and we’re rapidly moving into Stage 4.

For the next few days the Right will work hard to continually repeat their storyline, or narrative, or excuse, or whatever you want to call it, over and over, often enough that most people will hear it and believe it to be true. The fact that it’s a flat-out lie will not, of course, discourage them.

However, for the most part, tonight two MSNBC programs got it right. Better than nothing.

Powers and Presidents

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Kevin Drum makes a good point here about presidential war powers. There is general agreement (accept maybe among hard-core libertarians) that in times of war and extreme emergency, presidents can take on expanded powers, à la Lincoln and FDR.

But the next question is, what is war? “War powers” have always been considered extraordinary, to be used only in case of emergency. But if you count “hot wars,” the U.S. has been at war for about 20 of the past 65 years. And if you count the Cold War, then we’ve been at war for 50 of the past 65 years. If we consider ourselves to be in a state of war nearly all the time, the extraordinary becomes ordinary. If we assume the president is allowed expanded powers for 50 out of 65 years, the checks and balances of the Constitution are effectively nullified.

Kevin writes,

Somehow we need to come to grips with this. There’s “wartime” and then there’s “wartime,” and not all armed conflicts vest the president with emergency powers. George Bush may have the best intentions in the world — and in this case he probably did have the best intentions in the world — but that still doesn’t mean he has the kind of plenary power Abraham Lincoln and Franklin Roosevelt exercised during their wars.

During a genuine emergency, the president’s powers are at their most expansive. The rest of the time they’re more restricted, whether he considers himself a wartime president or not. Right now, if George Bush needs or wants greater authority than he currently has, he should ask Congress to give it to him — after all, they approve black programs all the time and are fully capable of holding closed hearings to debate sensitive national security issues. It’s worth remembering that “regulation of the land and naval forces” is a power the constitution gives to Congress, and both Congress and the president ought to start taking that a little more seriously.

We need to be clear about whether global terrorism is an extraordinary threat that can be defeated, or whether it’s part of a new phase of human history in which war is not between nations but between sects. I strongly suspect the latter is true, and that the threat of global terrorism will hang over civilizations for generations. Even if the Islamic jihadists were to surrender their fight in our lifetime — highly unlikely, IMO — the world is full of other groups with different agendas who might very well resort to the same tactics.

Horrible though they were, “declared” wars like World Wars I and II had a certain clarity to them. The wars had a sharply defined beginning and end –e.g., the World War I cease fire on the eleventh hour of the eleventh day of the eleventh month. Everybody understood who their enemies were. Soldiers wore uniforms and were (supposed to) operate within certain rules.

But the “war on terror” is so hazily defined that Americans disagree among themselves what it is, or exactly who our enemies are. Regarding Iraq (which may or may not be part of the war on terror, depending on who’s talking), the President only recently acknowledged that the people we are fighting aren’t all “terrorists,” even though he doesn’t seem to be able to get the word “insurgency” out of his mouth. Yet others tell us the al Qaeda affiliates make up less than 10 percent of the people we are fighting in Iraq.

I think the Iraq War is less about fighting al Qaeda, or reshaping the Middle East, or even oil, than it is about the Right’s collective emotional need for a conventional enemy. Iraq is a proxy war standing in for the old-fashioned “glorious little war” the righties desire. But glorious little wars no longer apply to geopolitical reality. Although certainly military actions will be part of the effort to combat terrorism, talk of “fronts” — as in “central front of the war on terror” — seems to me as anachronistic as mounted saber charges.

And the righties seem to think we are in a state of emergency, and have been continually since 9/11. If you’ve ever worked for someone who can’t set priorities, you may know what I’m talking about — when everything’s a priority, nothing is a priority. And when we’re always in a state of emergency, we’re never in a state of emergency. As a nation we need to take a deep breath and understand that we’ve got a lot of long, hard, and mostly not glorious work ahead of us to face the challenge of global terrorism. But we’ve got to understand this is how the world is going to be for the foreseeable future, probably the rest of our lives. And that means fighting terrorism is not an “emergency.” It’s the norm. And all constitutional restrictions apply.

Tainted

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Carol D. Leonnig and Dafna Linzer write in today’s Washington Post that a judge on the FISA court has resigned.

A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush’s secret authorization of a domestic spying program, according to two sources.

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court’s work.

According to colleagues, Robertson was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants.

“They just don’t know if the product of wiretaps were used for FISA warrants — to kind of cleanse the information,” said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. “What I’ve heard some of the judges say is they feel they’ve participated in a Potemkin court.”

Meanwhile, James Risen and Eric Lichtblau of the New York Times report that the NSA program did too include surveillance of purely domestic communications.

A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.

The officials say the National Security Agency’s interception of a small number of communications between people within the United States was apparently accidental, and was caused by technical glitches at the National Security Agency in determining whether a communication was in fact “international.”

Telecommunications experts say the issue points up troubling logistical questions about the program. At a time when communications networks are increasingly globalized, it is sometimes difficult even for the N.S.A. to determine whether someone is inside or outside the United States when making a cellphone call or sending an e-mail message. As a result, people that the security agency may think are outside the United States are actually on American soil.

The blogosphere is, of course, seeing two different realities. The righties have made up their minds that presidents Clinton and Carter also ordered warrantless searches, which (1) isn’t true, and (2) wouldn’t make it right, even if it were true. But you know that won’t make any difference to cowards. There are terrorists out there! Quick, throw the Bill of Rights overboard!

[Update: See more debunking of “warrantless” searches by Clinton and Carter by Georgia10 at Kos.]

Just call them cowards. That’s what they are. I was in lower Manhattan on 9/11 and saw the worst that terrorism can do, and I am not crawling around under rocks screaming that we must compromise everything America stands for to keep us safe. And I’ve never considered myself especially brave; just put me in a dentist’s chair, and I’ll confess to anything. But as I wrote yesterday, righties are so terrified of the jihadist boogeymen they’ll make excuses for anything Big Brother does, in the opinion — unjustified, I say — that Big Brother is keeping them safe. And they call themselves patriots. It’s too pathetic.

And the White House has yet to demonstrate that taking the path to tyranny has made us any safer. For example, Josh Meyer of the Los Angeles Times writes that at least one of Bush’s arguments is bogus.

In confirming the existence of a top-secret domestic spying program, President Bush offered one case as proof that authorities desperately needed the eavesdropping ability in order to plug a hole in the counter-terrorism firewall that had allowed the Sept. 11 plot to go undetected.

In his radio address Saturday, Bush said two of the hijackers who helped fly a jet into the Pentagon — Nawaf Alhazmi and Khalid Almihdhar — had communicated with suspected Al Qaeda members overseas while they were living in the U.S.

“But we didn’t know they were here until it was too late,” Bush said. “The authorization I gave the National Security Agency after Sept. 11 helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities.”

But some current and former high-ranking U.S. counter-terrorism officials say that the still-classified details of the case undermine the president’s rationale for the recently disclosed domestic spying program.

Indeed, a 2002 inquiry into the case by the House and Senate intelligence committees blamed interagency communication breakdowns — not shortcomings of the Foreign Intelligence Surveillance Act or any other intelligence-gathering guidelines.

See also “Bush’s Bogus Analogy” by Daniel Benjamin in Slate.

And of course it didn’t help that the President and National Security Adviser were told that “Bin Laden determined to strike in US” and made no attempt to shake trees, rattle cages or otherwise follow up.

But I digress.

Douglas Jehl writes in today’s New York Times that

The limited oral briefings provided by the White House to a handful of lawmakers about the domestic eavesdropping program may not have fulfilled a legal requirement under the National Security Act that calls for such reports to be in written form, Congressional officials from both parties said on Tuesday.

The White House has refused to describe the timing and scope of the briefings, except to say that there were more than a dozen. But among the small group of current and former Congressional leaders who have attended the high-level gatherings conducted by Vice President Dick Cheney at the White House, several have described them as sessions in which aides were barred and note-taking was prohibited.

Dick is warning senators that investigating the NSA program could be bad for their careers. Ron Hutcheson and James Kuhnhenn write for Knight Ridder,

Senators of both parties on Tuesday demanded a congressional investigation into President Bush’s domestic-surveillance program, even as Vice President Dick Cheney warned that the president’s critics could face political repercussions. …

… Cheney forcefully defended the previously secret spying program – disclosed last Friday by The New York Times – and said that Bush’s critics could pay a political price.

But at the moment the question is not whether there will be an investigation — there will be an investigation — but how the investigation will be conducted.

Five members of the Senate Intelligence Committee – two Republicans and three Democrats – called for a joint investigation by their panel and the Senate’s Judiciary Committee, saying revelations that Bush authorized spying on U.S. residents without court approval “require immediate inquiry and action by the Senate.”

Senate Majority Leader Bill Frist, R-Tenn., said he was discussing the possibility of hearings with various committee chairmen, but he didn’t pledge to hold any. Democratic leader Harry Reid of Nevada said he preferred for each committee to conduct independent inquiries.

David Ignatius at WaPo is encouraged by a revolt of the professionals.

The national security structure that the Bush administration created after Sept. 11, 2001, began to crumble this month because of a bipartisan revolt on Capitol Hill. Newly emboldened legislators forced the administration to accept new rules for the interrogation of prisoners, delayed renewal of the Patriot Act and demanded an investigation of warrantless wiretapping by the National Security Agency.

President Bush has bristled at these challenges to his authority over what has amounted to an undeclared national state of emergency. But the intelligence professionals who have daily responsibility for waging the war against terrorism don’t seem particularly surprised or unhappy to see the emergency structure in trouble. They want clear rules and public support that will allow them to do their jobs effectively over the long haul, without getting second-guessed or jerked around by politicians. Basically, they don’t want to be left holding the bag — which this nation has too often done with its professional military and intelligence officers.

The President needs to do what he often talks about, which is provide strong leadership, says Ignatius. The way Bush works to get his way isn’t leadership; it’s bullying. And when bullying doesn’t work, he lies, and bypasses Congress and the courts and the Constitution and anyone else he doesn’t want to bother about actually leading. Real leadership is haaaarrd work, you know.

See also Bruce Ackerman,” The Secrets They Keep Safe” in Slate.