Daily Archives: May 12, 2006

The Inherent Authority to Violate Federal Law

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In case you missed Jonathan Turley‘s segment on last night’s Countdown — here’s the transcript.

OLBERMANN: The simplest, broadest question here, could this program possibly be legal?

TURLEY: Frankly, I don‘t see how it can. If what was said in “USA

Today” is true—and there‘s been no denial of any of the essential facts

it seems to me, once again, to violate federal law. It is true that courts do not require a warrant to get the phone number of targeted individuals as part of a criminal investigation. But there is no law that allows the government to do this type of operation.

OLBERMANN: The choice that the government made not to go to FISA or the attorney general, is that in some way an acknowledgement that the NSA took a good guess at this and a good look at it and said, Well, this is probably not going to get approved by a FISA court?

TURLEY: Well, it‘s a very interesting admission, because they went to the attorney general to try to get a signoff on the domestic surveillance program. And they ran into one of the most conservative lawyers in the government, James Comey. And James Comey refused. He said, I don‘t see how this is lawful. Then they went to John Ashcroft in the hospital and even Ashcroft balked and said, I‘m not comfortable with this.

So they could have had two lessons. One is, maybe we should do things lawfully. Instead, they learned, Let‘s not ask people to sign off on these things.

OLBERMANN: Yes. The president says that everything he authorized was lawful. Would he have authorized the NSA to collect these phone records, or could that OK have come from somewhere lower in the chain?

TURLEY: Well, if he did not authorize this program, we are living in dangerous times indeed, because we would have a rogue agency. Only the president of the United States should be the one to approve this type of massive operation.

So I would assume that he did. But when the president says, I would never authorize something that‘s unlawful, you know, it has a lot of people chuckling, because most experts believe the domestic surveillance program, which was disclosed in December, is unlawful, and indeed is a federal crime.

OLBERMANN: When you were here 24 hours ago, you said that the president‘s understanding of his own powers was unprecedented, that he, quote, “believes that he has the inherent authority to violate federal law.” Does the “USA Today” article, does this story basically vindicate that point of view that you expressed?

TURLEY: Quite frankly, I think it does. Every time we have looked under the rug, we have seen this president going to the edge of law and beyond it. And that is consistent with his view that he can violate federal law when he believes it‘s in the nation‘s interest. And that‘s not just national security laws. In his signing statement controversies, he has taken the same position, I, on domestic laws that range from environmental to affirmative action.

This is a president who believes that he can define what the law is or ignore it. He‘s also a president that created his own judicial system just on the other side of the border, and he says that he can try people by his own rules and execute them. Well, that combines the legislative, judicial, and executive powers of this government in one person.

OLBERMANN: Incidentally on this—and it is (INAUDIBLE) incidental –

ordinarily this might be the lead story—are the phone companies up the creek here legally? Are there class-action lawsuits to be filed here? Would you sell your AT&T stock right away?

TURLEY: I hope they are sued. I know they‘re being sued in one case.

I think Qwest has really come out of this, I, with considerable courage. You know, these companies are not supposed to simply hand over millions of bits of information on a wink and a nod. They have to confirm that the government agent or the government official, including the president of the United States, is acting with legal authority. And Qwest did exactly the right thing.

And I expect there are going to be customers with AT&T and Verizon and other companies that are going to be asking, Why did you do this? What was the authority shown to you? Because I got to tell you, I‘ve spent a day now looking for the possible authority that they would use for this operation, and I‘ve come up with nothing.

OLBERMANN: Lastly, again that tangent here that almost got buried in the middle of this, the Department of Justice abandoning the investigation into the original NSA domestic spying program. I asked Dana Milbank about the politics of that. (INAUDIBLE) now, and, let me ask you about the way that this happened. DOJ says it couldn‘t get clearance, security clearance to do this. But doesn‘t almost every high-level investigation mandate some sort of clearance? Didn‘t the CIA leak investigation require clearance? Why did they give up so easily on this investigation and not the others?

TURLEY: Well, I think it‘s clear that this administration is not going to do a serious investigation of itself. And what is really troubling is that the intelligence community controls clearances. I have a clearance. I‘m involved in an NSA-related case. They control those clearances. So they control the ability of people to investigate their own alleged crimes. Now, there‘s an obvious problem with that.

OLBERMANN: Jonathan Turley, constitutional law expert, great thanks once again.

TURLEY: Thanks, Keith.

OLBERMANN: Just remember the story of the commentator during the wiretap paranoia of the ‘70s who said, whenever he picked up the phone, instead of saying, Hello, he‘d just bark out, “[Blank] J. Edgar Hoover.”

I may start greeting people with “[Blank] John Negroponte.”

I Still Say They’re Nastier Than We Are

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David Neiwert:

Media Matters directs us to the latest Coulter emission, wherein she shrieks like a harpy about conservatives’ lack of “manliness”:

    Democrats have declared war against Republicans, and Republicans are wandering around like a bunch of ninny Neville Chamberlains, congratulating themselves on their excellent behavior. They’ll have some terrific stories about their Gandhi-like passivity to share while sitting in cells at Guantanamo after Hillary is elected.
    […]
    Patriotic Americans don’t have to become dangerous psychotics like liberals, but they could at least act like men.
    Why hasn’t the former spokesman for the Taliban matriculating at Yale been beaten even more senseless than he already is? According to Hollywood, this nation is a cauldron of ethnic hatreds positively brimming with violent skinheads. Where are the skinheads when you need them? What does a girl have to do to get an angry, club- and torch-wielding mob on its feet?

Let’s be clear here: Coulter is not “joking.” She is seriously calling for “manly” conservatives to inflict violence on a college student who is in the United States legally. Moreover, she is calling for a similar kind of violence as an appropriate response to “unhinged” and “violent” liberals.

Every time some juvenile antiwar protester displays hatefulness on a poster or T-shirt, Malkin and others on the Right go ballistic over the dangerous, angry liberals. Prominent spokespersons of the Right can openly call for violence against lefties, however, and that’s OK.

I keep meaning to write something about the ex-Talibani at Yale, Sayed Rahmatullah Hashemi, so I might as well do it now. You can read more about him here.

Hashemi was born into an Afghan family who fled the violence of the Soviet occupation when he was 4. After the family returned from Pakistan, Hashemi took English lessons from the International Rescue Committee, a U.S. charity.

Eventually, he ended up as a translator and “roving ambassador” for the Taliban, the ruling party at the time. In that role, Hashemi traveled in early 2001 to the USA on a hopeless mission to defend the bizarre Taliban regime, which was harboring Osama bin Laden, blowing up priceless archeological treasurers and oppressing women.

All of 22 at the time, Hashemi made a series of naive statements that linger as embarrassments. Most memorably, he appears in Michael Moore’s Fahrenheit 9/11, telling a female anti-Taliban protester, “I’m really sorry for your husband. He might have a very difficult time with you.”

When the United States invaded Afghanistan after 9/11 and toppled the Taliban regime, a funny thing happened to Hashemi. Thanks to a connection made with an American journalist years earlier, he ended up in the USA — cleared by the U.S. Embassy and awarded student status.

After a year in a non-degree program at Yale, Hashemi, now 27, no longer sees the world framed as a religious conflict pitting Muslims against infidels. “You have to be reasonable to live in America,” he told a New York Times reporter. “Everything here is based on reason. Even the essays you write for class. Back home you have to talk about religion and culture, and you can win any argument if you bring up the Islamic argument. You can’t reason against religion.” While he’s critical of some U.S. policies, and more so Israel’s, he also has criticized the excesses of the Taliban and has drawn support on campus. …

… Yale could do a lot for Hashemi, who has a 3.3 GPA and tells friends he hopes to return to the region to promote education, without which, he says, no country can make a transition to democracy. Hashemi could also help Yale students learn about life in a theocracy.

Ever since the New York Times published a long feature story on Hashemi last February, elements of the Right have been campaigning to get him tossed out of Yale.

I remember seeng this guy on television when he was still a Taliban spokesman, and I was not favorably impressed. Given his background I suspect U.S. intelligence is keeping an eye on him, as they should. But all indications are that he’s given up association with the Taliban and his focused on his studies. His friends say he’s no extremist. Instead of taking advantage of an opportunity to promote understanding between the Muslim and western worlds, righties choose bullying and enmity.

Bottom line, hard-core righties don’t want peace. They want war. Peaceful co-existence is outside their comprehension. Anything or anyone different from them must be eliminated.

Update: What’d I say? Raging lefties want investigations! They’re out of control!

Snoopy

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At the Washington Post, Eugene Robinson gets to the heart of the matter:

At least now we know that the Bush administration’s name for spying on Americans without first seeking court approval — the “terrorist surveillance program” — isn’t an exercise in Orwellian doublespeak after all. It’s just a bald-faced lie.

Clarity. It’s a beautiful thing.

No names are attached to the numbers. But a snoopy civilian with Internet access can match a name with a phone number, so imagine what the government can do.

What kills me are the people who say it’s just numbers; what’s the big deal? How many tmes do people have to get lied to before they notice a pattern?

You’ll recall that when it was revealed last year that the NSA was eavesdropping on phone calls and reading e-mails without first going to court for a warrant, the president said his “terrorist surveillance program” targeted international communications in which at least one party was overseas, and then only when at least one party was suspected of some terrorist involvement. Thus no one but terrorists had anything to worry about.

Not remotely true, it turns out, unless tens of millions of Americans are members of al-Qaeda sleeper cells — evildoers who cleverly disguise their relentless plotting as sales calls, gossip sessions and votes for Elliott on “American Idol.” (One implication, by the way, is that the NSA is able to know who got voted off “Idol” before Ryan Seacrest does.)

Some intelligence experts are saying this sounds like a dumb program. “If you’re looking for a needle, making the haystack bigger is counterintuitive,” says one.

Real terrorists have ways of not being caught in the net. Brian Bergstein of the Associated Press writes,

Social-network analysis would appear to be powerless against criminals and terrorists who rely on a multitude of cellphones, pay phones, calling cards and Internet cafes.

And then there are more creative ways of getting off the grid. In the Madrid train-bombings case, the plotters communicated by sharing one e-mail account and saving messages to each other as drafts that didn’t traverse the Internet like regular mail messages would.

As an exasperated Jack Cafferty asked on CNN yesterday, “Why don’t you go find Osama bin Laden and seal the country’s borders and start inspecting the containers that come into our ports?”

My answer is that the Bush Administration is all about grand gestures and magic bullets, not about doing the practical, basic, unglamorous, hard-slogging things that actually need doing. I wrote last October:

George W. Bush appears to be a “magic bullet” kind of guy. I have read that his oil businesses failed because he was determined to make a big strike rather than slowly and patiently build a business. “To George W. Bush, a Texan who revels in the myth of the wildcatter, running risks in pursuit of the big gusher is a quintessential part of the American character,” says this May 16, 2005 Business Week article. “But as the scion of an aristocratic Eastern dynasty, the budding young tycoon always had a network of family friends and relations to call on. Those golden connections bailed George W. out of his early forays into the oil business.”

As president, Bush struck a political bonanza in September 11. But his biggest gamble was the war in Iraq. See how he threw the dice–he (and his advisers) bet there would be WMDs in spite of flimsy evidence. He and his crew assumed no post-invasion planning would be required, since the happy Iraqis quickly would establish a democracy as soon as they were finished tossing flowers. And he and his crew seemed to believe that the mere removal of Saddam Hussein would be the magic bullet that would bring peace to the Middle East. Why bother with boring ol’ nation building when you’ve got a magic bullet?

Once he realized he’d taken a political hit from his inept response to Katrina, Bush worked hard–to find another “bullhorn moment.” One event after another was staged to show Bush in action. Yet FEMA and the rest the Department of Homeland Security still seem to be drifting. Bush has a rare gift for getting his picture taken with firemen, but whipping a drifting department of his administration into shape is beyond his skill.

The NSA spying programs are quintessential Bush — big, expensive, secretive, and impractical. Not to mention illegal.

An editorial in today’s Baltimore Sun gives us a clue who pushed Dubya into the spy business:

After World War II, the NSA’s predecessor, the Army Signal Security Agency, sent representatives to the major telegraph companies and asked for cooperation in getting access to all telegraph traffic entering or leaving the United States. The companies complied, over the objections of their lawyers. When these practices came to light as part of a 1976 investigation into intelligence abuses, President Gerald R. Ford extended executive privilege, which shielded those involved from testifying publicly, to the telecommunications companies on the recommendation of then chief-of-staff Dick Cheney and then-Defense Secretary Donald H. Rumsfeld, according to the Project on Government Oversight.

No more pardons, no more forgiveness, no more sweeping dirt under rugs. No more. From now on we must thoroughly investigate, expose, and prosecute administration officials — of any administration — who abuse power and breaks the law. If any Democrats start making noises about not investigating — because investigations are so unpleasant and upsetting and partisan — smack them fast and smack them hard.

Update: What Glenn says.