Sunday, January 01, 2006

There's a short, informative, but mostly fatuous article at Newsweek on the FISA/NSA wiretapping scandal. It's by Evan Thomas and Daniel Klaidman, with assists from three other reporters, including Issikof.

The article takes a "boys will be boys" approach to the scandal, discussing how multiple presidents have reached for similar far-reaching powers in times of war. The article's author's quickly reach conclusions on the significance of the scandal, describing it only as "pushing the boundaries of the law". Later, they describe objections to widespread, illegal, warrantless wiretaps as "predictably partisan" and "histrionic."

Fine, fine, call me histrionic and partisan, make me write bad checks: I don't think any president should be able to ignore any inconvenient law or any part of the Constitution. I don't think members of the president's staff should be able to wiretap political opponents, as Governor Bill Richardson now believes happened to him, with domestic phone calls to Secretary Colin Powell. The complete list is, as described, breathtaking.

In words that must be comforting to Middle America, the Newsweek reporters also conclude that the Bush administration did "did not throw away the bill of rights". Apparently, this is so simply because members of the administration, the ones who were eventually overruled or coopted, objected to it strenuously when it was first introduced.

That's a very interesting, morally flexible point of view: when a government is being briefly thoughtful about violating our rights, it's somehow freed itself from later criticism, or at least criticism that isn't "histrionic" and "predictably partisan". Using the same reasoning, I could say that Stalin wasn't such a bad man, because there were people like Trotsky and Bukharin who objected to some of his tactics at some point before they were assassinated or killed after show trials.

Here are the key paragraphs for me in the Newsweek article:

At the Justice Department, it was a former prosecutor, James Comey, who forced the White House to back away from the so-called Torture Memo, which appeared to give intelligence agencies a license to use any interrogation method that did not cause the extreme pain associated with organ failure. Comey was the No. 2 man at the department at the time. Although the details are unclear, it appears that Comey's objections were also key to slowing the warrantless-eavesdropping program in 2004 for a time. According to several officials who would not be identified talking about still-classified matters, Comey (among other government lawyers) argued that the authority for the program—the 2001 "use of force" resolution—had grown stale. It was time to audit the program before proceeding in any case, Comey said.

But in March 2004, White House chief of staff Card and White House Counsel Gonzales visited Ashcroft, the seriously ill attorney general, to try to get him to overrule Comey, who was officially acting as A.G. while Ashcroft was incapacitated. Ashcroft refused, and a battle over what to do broke out in the Justice Department and at the White House. Finally, sometime in the summer of 2004, a compromise was reached, with Comey onboard: according to an account in The New York Times, Justice and the NSA refined a checklist to follow in deciding whether "probable cause" existed to start monitoring someone's conversations.

As nearly everyone has pointed out, they could have asked Congress to modify the FISA act immediately after 9/11. They could have asked in 2004, when the FISA court apparently started modifying warrants and when their own staff and cabinet members started to balk.

Why didn't they ask? The single most valuable insight in the article:

The executive branch is always reluctant to ask Congress for permission if, by the very asking, that means conceding that the legislative branch has the power to say no.

Got it. It's a simple rule, one that that every delinquent teenager knows well. What mom doesn't know, mom can't yell at me about.

Firedoglake has more.

The image is courtesy of the Church Sign Generator, a truly addictive site.


Blogger rle said...

The problem is that this behavior fits the GOP propaganda about Bush rather than refutes it: He's an uncompromising warrior who is willing to do what is unpopular and maybe even technically illegal to keep the American people safe. Think Oliver North. As long as most people can convince themselves that the only people whose rights may be infringed belong to a suspect category (Muslim, Middle Eastern or otherwise "suspicious"), they aren't going to lose too much sleep over it.

I was going to say that there are two ways for this story to grow legs: 1) if information is released that reveals illegal wiretapping of political opponents which was used for political oppo research or to otherwise damage opponents politically; or 2) if hearings are held or suits are filed, so that the political/legal actions themselves become the news.

However, now I'm not so sure about the first possibility. In running through potential targets, a number seem discreditable to me. Any whiff of the '60s will place people into the culture war camps: anti-war groups, immigration groups, environmental groups, etc. unfortunately won't create sufficient outrage among those who don't already despise Bush. People on the left will be appalled (along with their more process-oriented libertarian cousins), and those on the right will be silently grateful that the "troublemakers" are being kept in line. In a paraphrase of Bill Clinton, if you think the '60s were generally a good thing you're probably a Democrat, and if you don't, you're probably a Republican.

I think the story would need to go strongly against type for there to be widespread outrage (i.e. listening to conversations among religious leaders about the Miers confirmation, or monitoring Fitzgerald's communications concerning the Plame case).

So my hope lies with a constitutional stand by lawmakers who refuse to accept unfettered presidential power. Most Americans may not follow the minutia, but it may be enough to have multiple news cycles in which talking heads discuss "potential abuses of power" and the possibility of censure or impeachment. Let's hope that enough Republicans still have some principles, because Democrats aren't going to be able to do this alone.

Monday, 02 January, 2006  
Blogger travis said...

wow, thanks for the long comment. I guess this is part of why they immediately announced the investigation of the leakers. if they can stop the details of who has been surveilled, they can continue with this ridiculous, countrified meme of "if you're getting a call from al Qaeda, we'd like to know why."

Maybe they can replace the president with those two actors who did the Bartles & Jaymes ads on tv.

Monday, 02 January, 2006  
Anonymous wrd said...

All valid points and a big fight over data that ultimately will add little to the battle against terrorism. Think back to the days prior to 9/11: we had sufficient intelligence to foil the plot. The country's agencies failed to "connect the dots," ie, process the data, in a timely manner (if at all). This is the area where the effort (money) should be spent. We don't need more data. We need to use the data that we already have. Ok, getting back: Bush and Co did break the law and should be shown the door for doing so.

Tuesday, 03 January, 2006  
Anonymous Crisis Planner said...

You can make some more images on .

Thursday, 09 February, 2006  
Blogger travis said...

true enough. thanks.

Thursday, 09 February, 2006  

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