Saturday, December 24, 2005

DEPT. OF EXEGESIS In a Friday dispatch that obscures more than it illuminates, Douglas Jehl of The New York Times hews closely to the Republican talking points on the NSA eavesdropping story.

Jehl seems to have been tasked with exploring how lawmakers reacted, initially, to briefings about domestic NSA eavesdropping. The article, written under the headline "Among Those Told of Program, Few Objected," opens with a simple claim:

As members of Congress seek more information about the eavesdropping program authorized by President Bush, their requests are being complicated by the fact that Congressional leaders in both parties acquiesced in the operation.
And yet it isn't until paragraph nineteen that a full picture of the Democratic reaction emerges: Out of the seven briefed lawmakers, three contend that they objected at the time, three say their briefings were misleading and incomplete, and one could not be reached for comment.

In other words, all of the Democrats who have spoken on the record allege that they objected to the program, or would have objected had the administration been honest about its scope.

That sounds like something a bit more complicated than Jehl's paragraph one claim that "leaders in both parties acquiesced." But that's the impression Jehl leaves with readers who give the article a quick scan.

(Earlier in the story--within the first seven paragraphs--readers are treated to quotes from two Republican congressmen condemning Democrats for reacting with outrage after originally remaining silent. There wasn't any room in the piece, apparently, for a Democratic response to those charges.)

Why did Jehl bury his lede? Does he think the Democrats are lying? If so, why didn't he marshall evidence to support that belief?

And if no such evidence exists, does it really make sense to give the benefit of the doubt to an administration that has lied about this program repeatedly--even since it's existence was disclosed?

How many whoppers do they have to tell before their claims receive a little more scrutiny?

Tuesday, December 20, 2005

PEEKABOO Sure, the government's been eavesdropping on Americans in violation of the law. But at least the program's been restricted to international calls:
Q Can you assure us that all of these [NSA wiretapping] intercepts had an international component and that at no time were any of the intercepts purely domestic?

[Principal Deputy Director for National Intelligence] GENERAL [Michael] HAYDEN: The authorization given to NSA by the President requires that one end of these communications has to be outside the United States. I can assure you, by the physics of the intercept, by how we actually conduct our activities, that one end of these communications are always outside the United States of America.
That, at least, was the story:
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.

STRANGELOVLEAND Scott McClellan gives Stanley Kubrick, Peter George and Terry Southern a run for their money:
Q Congress defines oversight as "the authority to conduct inquiries or investigations, to have access to records or materials, or to issue subpoenas or testimony from the executive." Which of these powers were members of Congress granted with regard to the NSA surveillance program?

MR. McCLELLAN: Well, as you just pointed out, Congress is an independent branch of government, and they're elected by their constituents. We briefed and informed members of Congress about this program going back to 2001; more than a dozen times since then we've briefed members of Congress --

Q But briefing isn't power to investigate or issue subpoenas to ask questions. And I'm asking you, which of the powers of oversight were they granted?

MR. McCLELLAN: Congress is an independent branch of government. That's what I just pointed out, Jessica.

Q Which has the right to check the functions of the executive. And these are --

MR. McCLELLAN: They have an oversight role, that's right.

Q Okay, so in what way --

MR. McCLELLAN: That's why we thought it was important to brief members of Congress about this vital tool that we're using to save lives and to protect the American people, and why we talked to them about how it is limited in nature and limited in scope.

Q But as you know, members of Congress who were briefed said that they were informed -- yes, briefed, but given absolutely no recourse to formally object, to push back and say, this is not acceptable.

MR. McCLELLAN: They're an independent branch of government.

Q So in what way were they given oversight?

MR. McCLELLAN: They were briefed. And we believe it's important to brief members of Congress, the relevant leaders --

Q Would you also say they were given full oversight?

MR. McCLELLAN: They're an independent branch of government. Yes, they have --

Q Were they given oversight?

MR. McCLELLAN: Yes, they have oversight roles to play.

Q So they have oversight. So, in what way could they have acted on that oversight?

MR. McCLELLAN: You should ask members of Congress that question.

Monday, December 19, 2005

LATE MONDAY WIRETAP ROUNDUP Three posts worth reading:

1. Marty Lederman digs into the legal issues at some length.

2. Kos at Daily Kos exposes the hypocrisy at the heart of the Bush administration's legal argument

3. Josh Marshall shares what he calls "informed speculation" about the nuts and bolts of the eavesdropping program.

THE "NO ONE OBJECTED" MYTH Sen. Jay Rockefeller (D-WV) delivers a stunning revelation, one that punctures the myth that congressional Democrats briefed on the illegal wiretapping program never voiced qualms about it.

Turns out Rockefeller did voice objections--in a letter to Vice President Dick Cheney.

The program was so classified that Rockefeller was legally bound not to discuss it, even with his staff. But Rockefeller seems to have known enough about the Bushies--even back in 2003--to know it would be a good idea to hold onto a copy of the letter. He kept a sealed copy in "the secure spaces of the Senate Intelligence Committee":

July 17, 2003

Dear Mr. Vice President,

I am writing to reiterate my concern regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, and Chairman Roberts and our House Intelligence Committee counterparts.

Clearly the activities we discussed raise profound oversight issues. As you know, I am neither a technician or an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.

Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.

I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication.

I appreciate your consideration of my views.

Most respectfully,

Jay Rockefeller
UPDATE: Josh Marshall has posted Rockefeller's original, handwritten copy of the letter here.

CORNYN JOINS THE CLUB Abandoning the rule of law, Senator John Cornyn (R-TX) embraced the White House's facetious, FISA-busting legal theory tonight on The NewsHour.

But earlier in the day, explaining his support for extra-legal wiretapping, he was pithier:

"None of your civil liberties matter much after you're dead," the former state attorney general, district court judge and state supreme court judge said.

DOESN'T ADD UP What's perplexing about the wiretapping story, thus far, is that's not at all clear what the Bush administration gained by breaking the law.

At his news conference this morning, President Bush sole justification for ignoring the Foreign Intelligence Surveillance Act (FISA) was the need to move quickly. But speed can't be the issue: FISA allows the executive branch to eavesdrop first and ask for a warrant later--up to seventy-two hours after surveillance has begun.

So what's going on here? What's being hidden?

SLOUCHING TOWARDS LAWLESSNESS We've arrived at an interesting moment: The eavesdropping story appears likely to give us a window into the souls of public officials--to let us know which officials are truly committed to the rule of law, and which are willing to stomach the idea of unchecked executive power.

So far, President Bush, Secretary of State Condoleeza Rice, Attorney General Alberto Gonzales and Rep. Dana Rohrabacher (R-CA) are in the latter camp.

In the coming days, CONTRAPOSITIVE will be curious to learn where other prominent figures stand.

ALBERTO GONZALES: KINGMAKER Attorney General Alberto Gonzales, a national embarrassment and moral failure, is ready for a dictatorship:
"There were many people, many lawyers, within the administration who advised the president that he had inherent authority as commander in chief under the Constitution to engage in this kind of signals intelligence of our enemy," Gonzales said in an interview with CNN.

"We also believe that the authorization to use force which was passed by the Congress in the days following the attacks of September 11th constituted additional authorization for the president to engage in this kind of" electronic surveillance, he said.


A 1978 law, the Foreign Intelligence Surveillance Act, makes it illegal to spy on U.S. citizens in the United States without court approval.

Gonzales said Congress had granted an exception when it authorized the president to use "all necessary and appropriate force."
According to this frightening, absurd line of reasoning, the post-9/11 congressional resolution gave President Bush the authority to break any law that interfered with his prosecution of the (undeclared) war on terror.

According to Gonzales, there is literally no action that President Bush is legally barred from taking.

UPDATE: President Bush has now echoed this argument in his Monday morning press conference. So he's clearly ready to ascend to the throne if we're ready to let him.

Sunday, December 18, 2005

LINDSAY GRAHAM: NOT EVIL Here's the senior senator from South Carolina--a Republican and a lawyer--this morning on Face the Nation:
I don't know of any legal basis to go around [the Federal Intelligence Surveillance Act]. There may be some, but I'm not aware of it. And here's the concern I have. We can't become an outcome-based democracy. Even in a time of war, you have to follow the process, because that's what a democracy is all about: a process.


The bottom line is there is a theme here that's a bit disturbing. Remember the debate with Senator McCain about immunity. The administration was pushing to give immunity to interrogators in the field. Well, if you allow the president to make a finding that this is a bad person and these techniques are necessary, the president would have the authority to set aside statutes like the torture statute. If you allow him to make the findings, he becomes the court. So you cannot give any executive, Republican or Democrat, the ability to make findings to set aside statutes that exist or play the role of a court because that becomes a model that other people will adopt when our troops are held by them.


I reject the idea that any president can sit down with a handful of congressman and deal the courts out if the law requires the court to be involved. It is about the process. It's not about the politics. It is about winning the war, adhering to the values that we're fighting for and you can't set those values aside in the name of expediency.

WHERE'S THE AUTHORITY? Secretary of State Condoleeza Rice is a national disgrace:
MR. RUSSERT: The president yesterday confirmed that this [wiretap] operation was under way for the last several years. What is the legal authority? What is the constitutional authority for the president to eavesdrop on American citizens without getting court approval?

SEC'Y RICE: Tim...The president is acting under his constitutional authority, under statutory authority. I'm not a lawyer, but the president has gone to great lengths to make certain that he is both living under his obligations to protect Americans from another attack but also to protect their civil liberties...the president is drawing on his constitutional authority to protect the country.


SEC'Y RICE: Tim, again, I'm not a lawyer, but the president has constitutional authority and he has statutory authorities.


MR. RUSSERT: What Democrats and Republicans in Congress are asking, Madame Secretary, is what is the authority that you keep citing? What law, what statute? Where in the Constitution does it say the president can eavesdrop, wiretap American citizens without a court order?

SEC'Y RICE: Tim, the president has authorities under FISA [the Foreign Intelligence Surveillance Act] which we are using and using actively. He also has constitutional authorities that derive from his role as commander in chief and his need to protect the country. He has acted within his constitutional authority and within statutory authority.

Now, I am not a lawyer.
No--she's not a lawyer. She's only the secretary of state, representing the Bush administration on national television. (She also happens to have been the President's national security advisor when the wiretapping policy went into effect.)

Now: The only law Rice deigns to mention--the Foreign Intelligence Surveillance Act--explicitly bans eavesdropping without court oversight. So that's just nonsense.

And the idea that the President's constitutional, commander-in-chief authority authorizes him to break the law is, frankly, sickening. It's un-American.

So the question remains: Under what law was authority to engage in oversight-free wiretapping granted?

OUTSIDE THE LAW ROUNDUP Just as we were musing optimistically, late in the week, about the White House's decision to abandon one of its most illiberal policies, news arrived suggesting that the administration's relationship with the rule of law remains tenuous.

The key idea to keep in mind here is that the wiretap story isn't about secret spying. It isn't even about secret domestic spying--at least not primarily. This story, instead, is about the President's decision to abandon the traditional legal process--the use of warrants, court oversight, etc.--on what seems like extraordinarily flimsy legal grounds.

In other words, it's about the President's decision to break the law.

Some suggested reading:

1. Atrios catches this chilling CNN exchange between former congressman Bob Barr and House member Rep. Dana Rohrabacher (R-CA).

2. Josh Marshall shoots down the President's facile argument that the original Times story tipped off our enemies in any meaningful way.

3. Finally, here's Russ Feingold's take:

The President believes that he has the power to override the laws that Congress has passed. This is not how our democratic system of government works. The President does not get to pick and choose which laws he wants to follow. He is a president, not a king.

On behalf of all Americans who believe in our constitutional system of government, I call on this Administration to stop this program immediately and to fully cooperate with congressional inquiries and investigations. We have had enough of an Administration that puts itself above the law and the Constitution.

Saturday, December 17, 2005

MAN OF PRINCIPLE Here's the President on Friday:
JIM LEHRER: The New York Times story this morning that says that you authorized secret wiretaps by the National Security Agency of thousands of Americans. Is that true?

PRESIDENT BUSH: Jim, we do not discuss ongoing intelligence operations to protect the country, and the reason why is that there's an enemy that lurks, that would like to know exactly what we're trying to do to stop them.


We don't talk about sources and methods. Don't talk about ongoing intelligence operations.


I-- Jim, I know that people are anxious to know the details of operations, they-- people want me to comment about the veracity of the story. It's the policy of this government, just not going do it, and the reason why is is that because it would compromise our ability to protect the people.
And here he is on Saturday:
In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.
President Bush--he never talks about sources and methods. Unless it's politically expedient.

Friday, December 16, 2005

PENS FOR HIRE TNR's The Plank spots a truly amazing story in Business Week: A piece describing Jack Abramoff's practice of paying writers to pen Op-Ed pieces favorable to his clients.

We've learned enough about Abramoff, by now, not to be surprised by that sort of behavior. What is shocking, though, are the quotes BusinessWeek gets from a pair of think tank conservatives:

Peter Ferrara, a senior policy adviser at the conservative Institute for Policy Innovation, says he, too, took money from Abramoff to write op-ed pieces boosting the lobbyist's clients. "I do that all the time," Ferrara says. "I've done that in the past, and I'll do it in the future."

Ferrara...says he doesn't see a conflict of interest in taking undisclosed money to write op-ed pieces because his columns never violated his ideological principles.

"It's a matter of general support," Ferrara says. "These are my views, and if you want to support them, then that's good."


"If somebody pinned me down and said, 'Do you think this is wrong or unethical?' I'd say no," says Tom Giovanetti, president of the Institute for Policy Innovation. Giovanetti says critics are applying a "naive purity standard" to the op-ed business. "I have a sense that there are a lot of people at think tanks who have similar arrangements."
Ferrara may continue to write paid pieces in the future. But I doubt he'll get anyone--outside of The Washington Times, maybe--to publish them.

Thursday, December 15, 2005

ANOTHER STEP BACK First the administration decided to charge Jose Padilla with a crime, abandoning its illiberal, unconstitutional effort to sequester a U.S. citizen--a citizen grabbed up inside the U.S.--from the American legal process.

Now, in the face of veto-proof majorities in both houses, the Bushies seem ready to retire inhumane, degrading prisoner interrogation techniques from the U.S. arsenal. That includes techniques like water-boarding and the use of cold cells--techniques that count as torture under any reasonable standard, but that the Bushies had previously refused to condemn.

We still haven't heard a forthright discussion of the practice of rendition, of course. And we're still waiting for an end to the use of secret prisons overseas.

But certainly, this is another step away from the morally corrosive posture of the last few years.

Sunday, December 11, 2005

THEN THERE WERE THREE Viveca Novak has officially become the third reporter caught up in the Plame mess to embarrass her news organization.

Greg Mitchell at Editor and Publisher dissects her story:

The most amazing revelation is that in late-October, long after she blundered in telling Luskin that the word around Time (obviously a reference to Cooper) was that Rove had a Plame problem, the lawyer informed her that the special prosecutor might want to speak to her. Does she tell her editor? No.

Later Luskin tells her that Fitzgerald does indeed want to grill her, although perhaps not under oath just yet. She hires a high-level lawyer. Surely she tells her editor now? Au contraire.

Then, on Nov. 10, she meets with Fitzgerald for two hours to discuss the conversations with Luskin. Of course she tells her editor after that? Sadly, no.

Finally, on Nov. 18, her lawyer calls to inform her that Fitzgerald does indeed want her to testify under oath. "I realized that I now needed to share this information with Jay Carney, our Washington bureau chief," she writes online today. "On Sunday, Nov. 20, I drove over to his house to tell him. He then called Jim Kelly, the managing editor. Nobody was happy about it, least of all me."

Oh gosh, imagine that.


The first red flag, to repeat, is telling Luskin anything about what anyone knew at Time about her client and this incredibly sensitive case.

Then there's the question of how many times she talked to Luskin about it. Well, she has some calendar entries but they "weren't entirely reliable."


Then Fitzgerald asks her about specific dates. Lo and behold, she turns to her calendar again and one of Fitz's ideas, March 1, 2004, checks out. Here's her explanation: "I hadn't found that one in my first search because I had erroneously entered it as occurring at 5 a.m., not 5 p.m."

Reminder: This is a Time magazine reporter and book author.

Saturday, December 10, 2005

WHILE WE WERE AWAY Did Joe "three-way tie for third place" Lieberman secretly join the Republican party and forget to pass the news along to the rest of us?

CONTRAPOSITIVE is edited by Dan Aibel. Dan's a playwright. He lives in New York City.