And a Merry Christmas

Christmas!!!!

To you.

I should be back to regular posting come Monday. Probably nothing over the weekend. Spend some time with your family and step away from the computer.

The Dissembling Continues

If I can understand correctly, a major point by the Administration's apologists on the whole illegal spying issue is that the President was given the authority to do this in the Authorization to Use Military Force law of September 14, 2001. The law gave the President power to use force against Al Qaeda. He says it gave him the power to do anything he basically wants, so long as it has the fig leaf of defending America against terrorists.

This is not the actual law, but an administration wish list of what they wanted the law to say. We know this because Tom Daschle tells all in the Washington Post today:

As Senate majority leader at the time, I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

Then, after they couldn't get the authority to act against American citizens, they went ahead and authorized it in secret, notified Congress that they were doing it, and made it a crime against national security - literally, a crime - if those members informed the public about it.

Meanwhile, Glenn Greenwald (who;s been great on this issue) cuts through the bullshit:

There is not a single bit of authority in any of this for the absurd and dangerous proposition that the President has the right to violate a criminal law passed by Congress. Period. The Administration is trotting out lawyers to make legalistic arguments designed to cloud this extremely clear issue, but none of that can change the fact that Bush defenders are arguing that he has the right to enage in conduct which Congress made it a crime to engage in, and there is nothing in the law which gives a President that right. To the contrary, as one would expect, it has been repeatedly made clear that under our system of Government, the President does not possess the authoritarian right to engage in behavior which Congress expressly prohibits under the law.

This is exactly the kind of "get out of the weeds" thinking I've advocated from the outset. The Right will try to obfuscate and talk about the inherent powers of Article II of the Constitution, or rulings like U.S. v. Truong, in order to make their case. But they never explain how executive orders can override explicit Congressional laws. That's because they can't. And if the White House is saying they can, we continue to have a full-blown Constitutional crisis that needs to be resolved. And soon.

Freedom to Fight Each Other Tooth and Nail

So now we have an Orange Revolution-style street protest in the wake of that PERFECT election last week in Iraq:

BAGHDAD, Iraq - Large demonstrations broke out across the country Friday to denounce parliamentary elections that protesters say were rigged in favor of the main religious Shiite coalition...

Several hundred thousand people demonstrated after noon prayers in southern Baghdad Friday, many carrying banners decrying last week's elections. Many Iraqis outside the religious Shiite coalition allege that the elections were unfair to smaller Sunni Arab and secular Shiite groups.

"We refuse the cheating and forgery in the elections," one banner read.

There were reports of large-scale vote-rigging in pretty much every election given in Iraq (that's our contribution to American-style democracy around the globe). What's new is that the Sunnis and the secular parties aren't content with taking it anymore. I don't know, however, that the Shiite majority would be any less if the election was dead solid perfect. Basically these weren't elections for policies and candidates so much as expressions of ethnic and sectarian identities. They did nothing but inflame simmering tensions.

If there was fraud in the vote I'm glad the Sunnis are out there. But sooner or later, they're going to understand that 20% of the populace cannot possibly translate into 50% of the vote. And with neither side interested in democratic compromise (and why should they be? Their American models show no interest in it either), the looming civil war draws ever closer, a war without a real possiblity for victory on either side. I think the only possible solution at this point is a tripartitie partition of the country into Sunni, Shiite, and Kurdish areas, with autonomous governments and full revenue-sharing of oil.

Meanwhile, about that well-trained Iraqi army...

Gunmen Friday attacked an Iraqi army checkpoint in the city of Adhaim, in religiously and ethnically mixed Diyala province, killing eight soldiers and wounding seventeen, an Iraqi army officer said on condition he not be identified for fear of reprisal.

"There were too many to count," said Akid, a 20-year-old soldier from Diwanayah being treated for gunshot wounds to both thighs. "They tried to kill everybody."

Akid, who would only give his first name for fear of reprisal, said his battalion of about 600 men had already suffered over 250 desertions after a Dec. 3 ambush in Adhaim killed 19 Iraqi soldiers.

"They gave up," he said. "They said, 'The hell with this.'"

That seems unbelievably brazen for a usually secretive insurgency, to come out in broad daylight and start shooting people in the street. Sadly the insurgency seems stronger than ever.

House in Exile

I don't know if everyone is feeling the same as I do, but crowing about a "great couple weeks for Democrats" when all we did was forestall (in most cases temporarily) a bunch of far right programs doesn't add up to much. Sure, it's great to save ANWR, or stop the Patriot Act and the reverse-Robin hood budget for a few weeks, but this is playing defense. I understand that without power in Washington, this is what's going to have to stand in for victory, a fact that has seemed to escape Ron Brownstein in today's thumbsucker piece in the LA Times. However, leading into 2006, there's a tremendous opportunity for House Democrats to lead, force a real agenda, and raise awareness throughout the first month of the year.

See, the Republicans in the House don't want to return Congress to an open session because they're afraid Tom DeLay will still be tied up in his money laundering trial in Texas. If Congress convenes before then, surely a fight will commence in the GOP caucus to elect a new Majority Leader. So they're talking about delaying (pardon the pun) the start of the session until Jan. 31.

This is an opening a mile wide for Democrats to show sharp differences between the parties. Simply put, Democrats in the House need to show up for work on January 3. When they find Congress is not open, they need to take to the steps of the Capitol, and hold press availabilities assailing the Republicans for refusing to do the work of the American people in 2006.

But that's not all. They need to actually engage in a shadow House for the cameras. In press conferences, policy statements, and whatever informal hearings they can hold throughout the month of January, Pelosi and the Dems need to act like they're the only people in Congress, and show exactly what they would do if they were in the leadership. Pelosi needs to come out and say things like, "Today, I am submitting a bill to raise the minimum wage for all Americans up to $7 an hour... at least I would submit it, if the Republicans would open the chamber." And you do that for every single issue. In other words, Dems should set the agenda in the media in the absence of the House GOP. This needs a catchier name, but so far I've got "The House in Exile."

There is absolutely no downside to this. If the Republicans whine and cry about it, they can come back and open up the House so Congress can get back to work. If they choose to ignore it, the Democrats can get up on the Capitol steps every single day and get media coverage. But every member, and I mean EVERY SINGLE DAMN ONE, needs to plant their butts in Washington for this to work. How much starker a contrast do you want? Democrats want to do their job, Republicans want to save their patron saint Tom DeLay by staying at home.

If the Repubs get enough bad PR that they have to return to Washington and open up Congress, then the floor fight over DeLay is likely to simmer over, which would be another win. There's no reason not to do this. It allows Dems to step into the news vaccuum as the calendar flips to an election year. It allows us to rebut the "party with no ideas" meme, by advancing a national progressive agenda, and flipping the "obstruction" label right around on the Republicans, who are obstructing by refusing to open the door of the House.

This is a stunt that would drive the debate. The Alito hearings are going to get their due early in the month, sure, but this would work, without question. We need to plead with our leaders in the House to LEAD.

Deadlines Today

Not much blogging to be had for moi.

I did notice that there were some deals made today. The NYC transit workers are going back on the job, which will be welcome news for my Manhattanite sister.

And the Patriot Act is going to be renewed for another six months. This is exactly what Russ Feingold and the bipartisan supporters of his filibuster wanted: more time to negotiate and work out a settlement that balanced civil liberties. The emergence of Snoopgate makes this all the more vital (although, if it's the policy of the government that they can override existing statutes in the name of fighting terrorism, does there really need to be a Patriot Act at ALL! Might as well get rid of all of these laws, everything would flow so much easier).

At some point, Russ and his gang are going to have to put their foot down. If you're just going to kick the can down the road by extending forever, it puts no pressure on the other side. This is the right thing to do for now, however.

Police Blotter Report

You really need a criminal law degree to understand the modern Republican Party. First, Abramoff's flipping.

Jack Abramoff, the Republican lobbyist under indictment for fraud in South Florida, is expected to complete a plea agreement in the Miami criminal case, setting the stage for him to become a crucial witness in a broad federal corruption investigation, people with direct knowledge of the case said.

But after a lengthy bargaining phase, Mr. Abramoff's lawyers and prosecutors in the Florida case appear closer to resolving several of the central issues in the plea deal, in which the defendant would receive a reduced prison sentence - most likely in the range of five to seven years, though that is fluid - in exchange for pleading guilty and agreeing to testify against his former associates [...]

Prosecutors in Washington have been sifting through evidence of what they believe is a corruption scheme involving at least a dozen lawmakers and their former staff members, many of whom worked closely on legislation with Mr. Abramoff and accepted gifts and favors from him. Although Mr. Abramoff is also in negotiations in that case, it is unclear whether a settlement can be reached in time for both agreements to be announced at once.

So that's 10% of the GOP caucus in the House. How's it going over at the executive branch?

Special Prosecutor Patrick Fitzgerald is not expected to shut down his investigation into the leak of covert CIA officer Valerie Plame Wilson when he finishes his inquiry of White House Deputy Chief of Staff Karl Rove's role in the leak, lawyers close to the probe said.

These sources indicated that if a grand jury returns an indictment against Rove it will include -- at the very least -- a charge that he made false statements to Justice Department and FBI investigators when he was first interviewed about his role in the case in October 2003.

The investigation is expected to shift back to top officials in the Office of the Vice President, the State Department and the National Security Council, and may even shed some light on the genesis of the Niger forgeries, lawyers close to the case say. The forged documents, cited in President Bush's 2003 State of the Union address, claimed Iraq sought yellowcake uranium from the African country. It may also reveal how key players in the White House decided to expose Plame's undercover status and top secret front company, Brewster Jennings.

Separately, these people said, the FBI's renewed interest in probing the Niger forgeries grew out of Fitzgerald's probe.

Then you have the domestic spying case, where judges are up in arms.

Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court.

"The questions are obvious," said U.S. District Judge Dee Benson of Utah. "What have you been doing, and how might it affect the reliability and credibility of the information we're getting in our court?"

Such comments underscored the continuing questions among judges about the program, which most of them learned about when it was disclosed last week by the New York Times. On Monday, one of 10 FISA judges, federal Judge James Robertson, submitted his resignation -- in protest of the president's action, according to two sources familiar with his decision. He will maintain his position on the U.S. District Court here.

The judges could, depending on their level of satisfaction with the answers, demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question. One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court.

Look, I'm starting a collection fund on this site. See, while I'm possessed of a keen, buttoned-down mind, I don't have a law degree. And in the brave new world of Republican politics, I apparently need one. You simply cannot follow the ups and downs of the GOP unless you're aware of the local, state and federal statutes they're breaking on a daily basis. Otherwise, you might end up like the bullshit-swallowing naifs who allow their right-wing overlords to offer them fake excuses for their criminal activity that omit key words or selectively quote court rulings. And see, I can see through a lot of those right now, but with a law degree in hand I'll be that much more equipped.

So give early and often to the "Help D-Day Follow Republican Politics" Fund! Please send $32,000 for the first year, or one lump sum of $120,000. Thank you.

P.S. I don't have to be a legal scholar to understand the bullshittery going on here:

My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.

This leads off what ends up being a very substantive and in-depth legal discussion, but the contradiction there at the top is glaring. If the program violated federal law, then it's unconstitutional. Statutes cannot be overcome by executive order. Simple as that.

Wide Net

And the trickle trickle of lies and coverups begins to flow:

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."

First it was "We absolutely aren't spying on any domestic-only communications." Now it's "Yeah, we spied on a couple, but it was an accident. And we're only spying on those with known links to terrorism." By next week, Bush will be at a podium saying "Let me say something to Butch Washington of Dover, Delaware. Tammy isn't coming back! You're friend Mike's tired of hearing about it, and quite frankly, so am I! It's OVER! I've got better things to do than to listen to you go on and on about some girl you dated for 6 weeks! Why do you think I'm on vacation in Crawford all the time, I've got a three-month backlog! By the way, Ed James from Missoula, your mother's sorry about the vase. She didn't know you painted the house blue and it doesn't match now..."


UPDATE: As this article goes on, it makes clear that these assurances about where calls begin and end aren't even really possible:

National security and telecommunications experts said that even if the N.S.A. seeks to adhere closely to the rules that Mr. Bush has set, the logistics of the program may make it difficult to ensure that the rules are being followed.

With roaming cellphones, internationally routed e-mail, and voice-over Internet technology, "it's often tough to find out where a call started and ended," said Robert Morris, a former senior scientist at the N.S.A. who is retired. "The N.S.A. is good at it, but it's difficult even for them. Where a call actually came from is often a mystery."

And those are actually the President's restrictions on the policy. He can't even stop breaking his OWN laws.

We'll Find the Bounce We Expect

My friendly neighborhood troll has rebutted the unequivocal criminal conduct of warrantless spying in the White House by selectively mentioning a Washington Post poll that wasn't even in the field when the story broke. What that has to do with criminal conduct in the White House is beyond me, but I expect it was just a typical contrarian attempt to muddy the waters.

Now, via a WaPo chat yesterday, the poll editor, Richard Morin, basically admits his own bias. He was asked a question about the discrepency between his poll, which showed a 5-point uptick for Bush (and it had a 5-point uptick in GOP party ID as well; what dovetailing!) and a more recent Gallup poll, which showed no movement:

Which brings me to this point. Gallup does terrific work. But I found it odd that they had Bush at 41 immeidately after the Iraq elections--down insignificantly from 42 in their pre-election poll. Bush didn't benefit--even a little bit--from the success of those elections and the favorable media coverage that followed? Certainly possible, but I find it hard to believe.

I don't really post about polls all that much. And when a polling editor announces that he was expecting Bush's numbers to go up before he took his poll, and then his numbers do go up, more than any other contemporary poll out there (except Hotline, widely seen as an outlier), I know why I don't post about polls all that much. They don't mean a whole heck of a lot, and they mean even less when they're as irretrievably biased as this one. You can get the numbers you want out of a poll in a myriad of ways.

Chris Bowers has more, including how angry Morin got after being asked why his polling outfit didn't ask a question about impeachment. Amusing.

UPDATE: This maroon apparently polled the impeachment question with regard to Clinton and Monica within five days of the revelation. Nowadays the very specter of the word makes him madder still. Water-carrier, thy name is Richard Morin.

The Real Scandal

If Jack Abramoff flips it's going to make Plamegate look like a jaywalking ticket:

Jack Abramoff, the Republican lobbyist under criminal investigation, has been discussing with prosecutors a deal that would grant him a reduced sentence in exchange for testimony against former political and business associates, people with detailed knowledge of the case say.

Mr. Abramoff is believed to have extensive knowledge of what prosecutors suspect is a wider pattern of corruption among lawmakers and Congressional staff members. One participant in the case who insisted on anonymity because of the sensitivity of the negotiations described him as a "unique resource."

If by "unique" you mean "a movement conservative with ties to practically every lawmaker in the GOP." Abramoff is not a bipartisan figure. He was the National Chairman of the College Republicans, serving with former Christian Coalition head Ralph Reed and Americans for Tax Reform lobbyist Grover Norquist. His influence over Washington is the culmination of a 20-year project to push the conservative agenda. The overwhelming majority of contributions in the Indian gaming scandal are to Republicans. Spreading it around to people like Byron Dorgan (who returned the money and advocated the same position before getting anything from Abramoff) does not give a fig leaf of bipartisanship, and it's simply ridiculous to think so.

If this plays out the way it could, it is not hyperbole to suggest that the Democrats would regain the majority of the House of Representatives BEFORE the 2006 elections. That's how many Congressmen could be indicted.

Data Mining

I'm with Ezra Klein and loads of others in thinking that this was a massive data mining operation, in which hosts of phone calls, emails, etc. were intercepted and randomly analyzed, perhaps through a computer program, for keywords, patterns, and particular phrases. This is why Sen. Rockefeller's letter refers to his not being "a technician" in being able to determine the legality. The technology already exists to do this quickly and quietly. Here's Ezra's reaction:

In that way, they are spying domestically, but the untargeted nature of the program makes the very concept of a warrant meaningless.

That doesn't mean they don't need a law. America is not ruled by executive whim, instinct, or fiat. If the post-9/11 moment compelled Bush to immediately authorize this program, the intervening four years offered him plenty of time to seek statutory authority for it. His lame protestations that codifying the operation would tip terrorists off to our fishing expeditions are irrelevant -- that same argument militates against reauthorization of the PATRIOT Act (why let them know the "wall" is down?) and passage of the intelligence bills. Terrorist elements already have a hunch we're monitoring them; shredding our government's checks and balances is too high a price for such a low reward.

What is needed is a redefining of the law. I think the technological angle will be played up in the coming weeks, as it is becoming clear that the other excuses are falling flat. But we should all realize that what this "change in technology" is, in effect, is a massive, unencumbered data mining operation without respect for citizenship or privacy.

Wow, and he's a SENATOR

Today John Cornyn said the most thuddingly stupid thing I've ever seen in print.

“None of your civil liberties matter much after you’re dead,” said Sen. John Cornyn (R-Texas), a former judge and close ally of the president who sits on the Judiciary Committee.

It's one thing to honestly disagree about the authority of the president in wartime (as tortured as that argument can become). It's quite another to use this scare tactic to argue for a kingship.

Once again, Sen. Feingold was right there with the response:

Sen. Russ Feingold (D-Wis.), who has led a bipartisan filibuster against a reauthorization of the Patriot Act, quoted Patrick Henry, an icon of the American Revolution, in response: “Give me liberty or give me death.”

He called Cornyn’s comments “a retreat from who we are and who we should be.”

Reductive arguments like Cornyn's are not helpful in a time of Constitutional crisis.

Constitutional Amendment Needed

We have to stop this practice of stuffing unrelated items into appropriations bills. This epidemic has been poisoning the legislative branch for years, and it's gotten completely out of hand. Witness this week, where the House has run amok, forcing its members to vote on key bills without knowing what's in them:

The House Republican Leadership has announced its intention to have the House vote today on conference reports on a budget-cut “reconciliation” bill (S. 1932) and the defense appropriation bill (H.R. 2863) under a procedure known as “martial law.”  The Leadership’s proposal to invoke martial law has already been debated on the House floor and will be voted on later today.

* Just before midnight on Sunday, December 18, the House adopted the “martial law rule” that allowed the leadership to bring up the conference report on the reconciliation bill shortly after the conference report was finalized, without waiting until the next legislative day as required by House rules.

* At 1:12 a.m. on Monday, December 19, the 774 page conference report on the reconciliation spending cut bill was filed in the House.

* At 5:43 a.m. Monday morning, after less than 40 minutes of debate on the measure, the House began the final vote on the reconciliation spending cut bill.

Under this procedure, longstanding House rules that require at least one day between the unveiling of significant legislation and the House floor vote on that legislation are swept away.  Instead, under “martial law,” the Leadership can file legislation with hundreds of pages of fine print and move immediately to debate and votes on it, before Members of Congress, the media, or the public have an opportunity to understand fully what provisions have been altered or inserted in the legislation behind closed doors.  This is the procedure the Leadership hopes to use today to muscle through these bills.

Not to be outdone, the Senate, mainly due to the efforts of Ted Stevens of Alaska, has inserted an ANWR drilling measure into a "must-pass" defense appropriations bill. This is simply outrageous. If you can't get your legislation passed through normal channels, sticking it into politically popular bills at the last minute to force it through it the height of cowardice. The Republicans have been in charge of the House (and for the most part, the Senate) for ten years, so it's pretty hard to blame the Dems for this one.

And not only are they inserting these programs into unrelated bills, they're overturning parliamentary procedure to get them passed:

Senate Republicans prepared a targeted version of the so-called “nuclear option” yesterday as they tried to ensure adoption of a defense-spending conference report that includes a controversial provision opening the Arctic National Wildlife Refuge (ANWR) to oil and gas drilling.

The tactic promises to make the consensus-based Senate temporarily resemble the majority-dominated House.

The ANWR provision leaves the measure open to a point of order because it runs afoul of Senate Rule 28, which requires that conference reports contain only provisions that were included in either the House- or Senate-passed versions of the bill.

The president of the Senate, who rules on parliamentary questions, would be expected to uphold the point of order. But Republican leaders plan to appeal that ruling, allowing 51 senators — rather than the 60-vote majority typically needed to waive points of order — to allow the ANWR provision to stand.

Sen. Ted Stevens (R-Alaska), the chairman of the Defense Appropriations Subcommittee and the chief proponent of ANWR drilling, included a provision to ensure that the precedent set by the move would not become permanent. Under that language, the Senate would revert the precedent that existed at the start of the 109th Congress.

It is possible that Stevens, who is president pro tempore of the Senate, could preside over the proceedings on a point of order, according to Amy Call, spokeswoman for Senate Majority Leader Bill Frist.

This back-door lawmaking demeans our entire system of government. Referring these bills over to a bipartisan or nonpartisan group which decides (under agreed-to rules) what legislation must be passed as part of an appropriations package and what must be stand-alone is absolutely vital. This is an utter perversion of the legislative process, and one senator can make this all go away by forcing the issue and essentially bringing the chamber to a halt until an actual procedure is set into place.

Meanwhile

The case of intelligent design, which has already been subject in Dover, Pennsylvania, to electoral analysis (all 8 school members who argued for the taching of intelligent design were voted off the board in November), has now been struck down after judicial review:

"Intelligent design" is "a religious alternative masquerading as a scientific theory" and cannot be mentioned in biology classes in a Pennsylvania public school district, a federal judge said Tuesday, ruling in one of the biggest courtroom clashes on evolution since the 1925 Scopes trial.

Dover Area School Board members violated the Constitution when they ordered that its biology curriculum must include the notion that life on Earth was produced by an unidentified intelligent cause, U.S. District Judge John E. Jones III said.

“We find that the secular purposes claimed by the Board amount to a pretext for the Board’s real purpose, which was to promote religion in the public school classroom,” he wrote in his 139-page opinion.

I'm sure this will sound the usual bells of "judicial activism," but the fact remains that the people and the courts are on the same side of the matter. The minority's rights must be respected (i.e. they're allowed to argue for intelligent design in the public sphere), but they also are firmly in the minority from a legal and public opinion standpoint when it comes to teaching in the schools. Get over it.

The Nose Grows

April 20, 2004 (incidentally, the start date of this blog):

PRESIDENT BUSH: ...there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires-a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

July 14, 2004:

THE PRESIDENT: A couple of things that are very important for you to understand about the Patriot Act. First of all, any action that takes place by law enforcement requires a court order. In other words, the government can't move on wiretaps or roving wiretaps without getting a court order.

By this time the President was authorizing unwarranted wiretaps for at least two years.

Oh, and the New York Times had the goods on this before the election:

The New York Times first debated publishing a story about secret eavesdropping on Americans as early as last fall, before the 2004 presidential election.

But the newspaper held the story for more than a year and only revealed the secret wiretaps last Friday, when it became apparent a book by one of its reporters was about to break the news, according to journalists familiar with the paper's internal discussions.

They were completely content to sit on this story until time immemorial, and only went with it because of a book deal. That crazy liberal media.

Not An SOS, An SMS

That's what the President sent out to the New York Times: "Save My Skin." He even allowed them what he wouldn't for 5 years: a personal visit. Jonathan Alter reports:

No wonder Bush was so desperate that The New York Times not publish its story on the National Security Agency eavesdropping on American citizens without a warrant, in what lawyers outside the administration say is a clear violation of the 1978 Foreign Intelligence Surveillance Act. I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting, but one can only imagine the president’s desperation.

The problem was not that the disclosures would compromise national security, as Bush claimed at his press conference. His comparison to the damaging pre-9/11 revelation of Osama bin Laden’s use of a satellite phone, which caused bin Laden to change tactics, is fallacious; any Americans with ties to Muslim extremists—in fact, all American Muslims, period—have long since suspected that the U.S. government might be listening in to their conversations. Bush claimed that “the fact that we are discussing this program is helping the enemy.” But there is simply no evidence, or even reasonable presumption, that this is so. And rather than the leaking being a “shameful act,” it was the work of a patriot inside the government who was trying to stop a presidential power grab.

No, Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker. He insists he had “legal authority derived from the Constitution and congressional resolution authorizing force.” But the Constitution explicitly requires the president to obey the law. And the post 9/11 congressional resolution authorizing “all necessary force” in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.

Maybe if you didn't call a Times political reporter "a major league asshole" 5 years ago, and have generally been antagonistic and dismissive ever since, the editors would have listened, and spiked the story for longer than the year they already did.

Digby notes this tidbit from the original Times article

Several senior government officials say that when the special operation first began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.

They knew they were guilty as sin on this, but must have figured they had it all locked down, and could use intimidation and cronyism and all their other tactics to ensure it never saw the light of day.

Whoopsie.

The I Word

I don't favor impeachment in the domestic spying case at this time. There, I've said it. I respect the opinion of Barbara Boxer, and particularly John Dean, on this matter:

On Sunday, December 18, former White House Counsel John Dean and I participated in a public discussion that covered many issues, including this surveillance. Mr. Dean, who was President Nixon’s counsel at the time of Watergate, said that President Bush is “the first President to admit to an impeachable offense.” Today, Mr. Dean confirmed his statement.

And I'm angry that the Republicans, in 1998, corrupted the impeachment process so much that any invocation of this perfectly Constitutional remedy immediately provokes cries of "partisan witch hunt" and ultimately renders it unusable. I predict there will not be another impeachment trial in this country for 100 years. Maybe that was part of a larger plan by the GOP to consolidate power in the hands of the executive. They thought they could get back in power, so if they tainted the impeachment process so much, the Presidency could then be a blank check. Speculative, sure, but it would be ingenious.

Here's my point, however. There's another remedy in this domestic spying case. It's quite simple. Congress needs to demand that their authority has been usurped, and in a bipartisan fashion, request that the President cease this program immediately, obtain warrants for all active and future eavesdropping cases, and destroy any evidence illegally obtained that is not germane to antiterror practices. This would alter exactly ZERO cases of spying currently pending. I'd even be willing to start the 72-hour retroactive clock over, giving the White House ample time to solicit FISA courts for warrants in any active cases. I think there are most likely majorities for such an action in the House, and certainly the Senate.

The current belief, that the President has these inherent powers and will continue to use them and shut your mouth, will not suffice. This idiotic lawyer who looked like Rip Torn on O'Reilly tried to answer why the President couldn't have simply used the retroactive capability to get a warrant from FISA (which has a 99.6% rate of issuing warrants when asked) within 72 of surveilling, answered with two reasons. One was that it would be too slow to get the FISA warrant. You have to be joking. Over the spring, during the Terri Schiavo affair, two different Circuit Courts of Appeals, who have literally hundreds of cases on their dockets, mobilized within 24 hours many times for a host of motions and rulings. You're telling me a FISA court specifically designed for speed with nothing else to do but rule on warrants of this type wouldn't be able to do the job given 3 times as many days to do so? Bullshit. His other answer was that the government needed to keep this a secret. What part of "secret court" don't you understand? Has there EVER been a case of this court leaking information? How many people in the country even knew about the existence of this court before last Friday? Are they newsmakers? Does the Attorney General think members of his Justice Department would behave like traitors? Is there any reason for them to give up this information if it's going through legal channels? Bullshit bullshit bullshit.

The congressmen who did hear about this, Republican and Democratic, kept their mouths shut as required by law. Read Jay Rockefeller's tortured letter to the Vice President, confirming that members of Congress weren't briefed about this as an interrogative, but as an imperative:

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 surveiliance.

Without more information and the ability to draw on any independent legal or techical 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

He couldn't tell anyone else on the Intelligence Committee about this. He didn't even tell his own staff about this. He couldn't. He had no outlet to raise concerns. And he was one of only 8 Senators and Representatives who even got that courtesy. The great majority heard about this for the first time last Friday. That's not oversight. Especially when this letter received no response.

So I'm angry as hell that this happened, and think it's causing a constitutional crisis with each passing day. But I don't support impeachment - yet. There is a remedy that gives the President all the powers he desires - to eavesdrop on terrorist conversations - while still acting under 215-plus-year-old laws that serve as the foundation of the country. As long as he acquieses we can put this behind us. The reason I don't support impeachment (for now) is that this entire process could have occurred in a legal manner without one principle being violated. Spying would have continued on Americans, and it would have been perfectly viable. It's the arrogance of believing he doesn't need a warrant that makes this a crime. A felony, actually. But until we have discovery of who was wiretapped, surveilled, et al., we have no idea what kind of harm, if any, this did to American citizens. And if the President ceases and desists, I believe it's reversible (although I wouldn't object to official censure).

If the President continues to insist that some amorphous inherent powers as commander-in-chief, which only he and a few of his lawyers believe (really, only a couple people, John Yoo and Alberto Gonzales primarily, have decided this, and at this point, nobody agrees with them) enables him to act above the law, then we can talk about other options. The President is not a king, and Congress may have to sue him for violating their Constitutional rights by dismissing their authority. If articles of impeachment are the only recourse then, we can talk about it then.

This was a major mistake. I predict public pressure will force the President to back down because he really doesn't have a leg to stand on. I'm comfortable with that result.

Shorter Bush

I had to break the law because Al Qaeda has CSPAN!

In addition, he defended the warrantless spying mostly by focusing on the speed factor. When one of the questioners noted that you could get a FISA warrant retroactively, up to 72 hours after the initial eavesdropping, he didn't have an answer and eventually blurted out "9/11!"

The idea that Congress was briefed 12 times is also bogus. As Nancy Pelosi spells out, Congress wasn't told "Can we do this?" but "We're going to do this." And they told the ranking members of the Intelligence Committees only, not the leadership. Now, if Nancy Pelosi then went to the House floor and disclosed this secret policy, how fast do you think the treason articles would be written? She expressed her disapproval, but since the executive branch considered (and still considers) this policy to be legally derived from the heavens, she was in no position to override it, and sworn by her position to secrecy. The Right ought to thank Pelosi for her discretion.

And saying you started this program to make sure it was secret doesn't work either. FISA is a secret court, and if you got a warrant it wouldn't by under public review. The point, to get out of the weeds, is that the executive can't just overturn laws whenever he likes. Abu Gonzales made a bizarre statement today that the President derived this particular power from the resolution authorizing force against terrorists in Afghanistan. Cueing Mr. Feingold:

Responding to Gonzales' claim, Wisconsin Sen. Russell Feingold (D) said on NBC's Today Show: "Nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror, including myself who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States."

"There's two ways you can do this kind of wiretapping under our law. One is through the criminal code, Title III; the other is through the Foreign Intelligence Surveillance Act. That's it. That's the only way you can do it. You can't make up a law and deriving it from the Afghanistan resolution.

Gonzales and company are true believers that the inherent powers of the commander in chief during wartime are basically unchecked. Bush likes the word "unchecked" and doesn't question how his lawyers get there. It's going to be near impossible to get a court decision on this case (someone harmed by domestic spying of this nature would have to come forward, and it being a secret program, they don't know it's happening), so Congress is the only body standing between the President and his whim. This is in a way good for the country, that because of the brazen nature of this action, we can get yet another precedent for overreaching Presidential powers. Republicans will appreciate this when Democrats return to power. Checks and balances and the rule of law simply must be respected, or else we cash in our democracy.

Dissent is Patriotic

Here's some of the delightful shit the government has concerned itself with in the name of fighting terrorism over the past few months. In light of the fact that we are now being told to calm down, that this domestic spying thing was just about Al Qaeda, let's go through these and see what kind of credibility such a claim raises, shall we?

1. A college student in Massachusetts is visited by Homesland Security agents because he requested a copy of Mao tse-tung's "The Little Red Book" from the campus library. He was doing a research paper on, fittingly, fascism and totalitarianism, and the book was part of his research.

2. A high school student in California is visited by FBI agents because, two years ago, he doodled the phrase "PLO" on a book binder.

3. As I wrote about in May, the ACLU has obtained documents proving that the FBI and local law enforcement has been spying on groups like Greenpace, PETA, and Food Not Bombs, who provide vegetarian meals to the homeless.

Lipris argues that this whole thing is not about terrorism, it's about stopping dissent. Considering the track record, it's hard not to agree.

UPDATE: Digby sums it up, again better than I could:

There can be no doubt about where this is going. This administration has asserted a doctrine of unfettered executive power in "wartime" that will not confine itself to "suspected terrorists" as we understand them. Everything we know about human nature --- and particularly about the nature of this modern Republican party --- says that these powers will be used for domestic political purposes. That they felt they had to do this (even though they can monitor anyone they choose immediately as long as they make an application for a FISA review within 72 hours) can only raise suspicions that this is what they were doing. Coming on the heels of the pentagon spying story, you have to have overdosed on kool-aid not to wonder why they refuse to show the secret FISA court who they are monitoring.

Bob Graham Writes Everything Down

Read this. The guy has thousands of notebooks filled with every single thing he's done for the last 28 years. I don't think he'd "misremember" anything about any meeting with Dick Cheney on domestic spying, as a senior official claimed in today's WaPo story.

Given (a) A guy who painstakingly writes down everything that happens to him, down to what he had for breakfast, for close to three decades, or (b) this band of merry fools that say things like "We know Saddam has WMD" and all the rest, I'll take (a).

Speech

Tonight's words by the President played like a greatest hits reel of his new approach honed over the last several weeks: a tone of conciliation and acknowledgement, a vow that other voices will be listened to, and then a forging ahead of the exact same policy that got us into this mess in the first place. It's so easy to placate the Beltway media establishment: just throw a few rhetorical nods at bipartisanship their way and they salivate. In truth, the sum total of the speech was "We're doing what we've been doing, what we've been doing is working, so shut up and trust me.

Meanwhile those fair and free elections on Thursday may not have been altogether fair or free:

Suspected polling violations on voting day last week far exceeded the number in Iraq's first election in January, local and international monitors said yesterday.
On the deadline for filing complaints, the number of alleged violations which could swing results in the 275-seat parliament was "well into double figures", an accredited international election observer, who wished to remain anonymous, said.
...

Secular Arab parties have accused the Shia religious bloc, which dominates the current government, of intimidating voters in Baghdad and many southern cities.

At the Sharqia high school in central Baghdad, which was used as a polling station, a senior election official was said to have asked voters if they were going to vote for 555. Unless they said yes, they were not given ballot papers.

A source close to Mr Allawi's campaign said that in one Baghdad polling station "around 600 men, some with walkie-talkies and purple ink on their fingers showing they had already voted, forced their way in. When the manager tried to stop them asking for ballot papers, they threatened to put him in a car boot and drive him away ... He let them in."

It seems to me that these allegations are by and large coming from the groups BushCo wants to win in Iraq; namely, from "secular Arab" Iyad Allawi's group.

It must be a "my God, what have we wrought" moment for them to realize that we've ended up giving Iran a theocratic partner in the region, but we have to praise those theocrats who worked to put this "Democracy in name only" in place. I thought Sen. Lindsay Graham's acknowledgement on CNN after the speech that the Badr Brigade Shiite militias basically control the Interior Ministry was very salient (you didn't hear that IN the speech, by the way). This is the worst possible outcome from my standpoint; that we have to keep grinning and stating "freedom's on the march" while the Shiite ruling class settles scores with Sunnis, messes with elections to consolidate power, and crushes dissent underfoot.

Now, what government currently in power in North America does that sound like...

Get Out of the Weeds.

After the President, who a day earlier said he wouldn't discuss an ongoing investigative operation, came out yesterday and said "Yeah, we're spying on Americans without a warrant, and what are you going to do about it," the conservative noise machine leapt to his defense. Dana Rohrabacher, proving he's not just a terrible screenwriter but a terrible Congressman too, claimed that "We should be grateful" that the President is doing this because otherwise we'd all be dead, I guess. He specifically cited this Iyman Farris plot to "blow up" the Brooklyn Bridge, which was actually a plot to dismantle the Brooklyn bridge with blow torches. I guess the NYPD wouldn't have noticed that seven-year project. Bob Barr debated Rohrabacher on CNN and tossed out some gems:

BARR: Here again, this is absolutely a bizarre conversation where you have a member of Congress saying that it's okay for the president of the United States to ignore U.S. law, to ignore the Constitution, simply because we are in an undeclared war.

The fact of the matter is the law prohibits -- specifically prohibits -- what apparently was done in this case, and for a member of Congress to say, oh, that doesn't matter, I'm proud that the president violated the law is absolutely astounding, Wolf.

BARR: Well, gee, I guess then the president should be able to ignore whatever provision in the Constitution as long as there's something after the fact that justifies it.

And that's the thing. People are looking at this in the completely wrong way. They're trying to re-interpret the statute (The Foreign Intelligence Surveillance Act, or FISA) which authorizes that wiretapping and covert searches on US citizens must be done with a warrant, by claiming that the statute does allow warrantless searches (which is simply an act of purposeful misquoting.). They're giving excuses like "the FISA court takes too long to get a warrant, and you need flexibility in anti-terror situations," even though the FISA court is built for speed, almost never turns down a request, and allows the NSA to even go 72 hours without a warrant before they mandate one. They're calling to prosecute whoever leaked the revelation in the first place to the New York Times, saying they violated national security, even though it was public knowledge that the government could get a warrant and do the same exact thing, and can even still do so now, which means none of this spying even has to stop, just the manner about which the government enacts it.

But none of this is important. People need to get out of the weeds. At issue here is the President allowing himself to break the law by overriding a federal statute, which the Constitution forbids. As Richard Nixon said, "when the President does it, that means it's not illegal." That's what's at stake here.

Russ Feingold knows exactly what's at stake:

Sen. Russ Feingold, D-Wisc., believes President Bush is acting more like a sovereign monarch than an elected leader by authorizing the National Security Agency to listen in on Americans' phone calls.

"We have a system of law," Feingold said. "He just can't make up the law … It would turn George Bush not into President George Bush, but King George Bush." [...]

Feingold, the only senator who initially opposed the Patriot Act, which was designed to protect Americans from terrorism, said that the spying is indicative of a "pattern of abuse" including torture and secret prisons. The president, Feingold said is "grabbing too much power."

It's very, very simple. Feingold is not on the Senate Intelligence Committee (actually, he'll be on it come January; he's replacing Jon Corzine), and maybe his presence there will wake up that group into realizing that the words "national security" do not supersede the Constitution. According to the President "Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it." Intelligence Committee ranking Democrat Jay Rockefeller was mentioned in the initial New York Times article. But Bob Graham tells it differently:

A high-ranking intelligence official with firsthand knowledge said in an interview yesterday that Vice President Cheney, then-Director of Central Intelligence George J. Tenet and Michael V. Hayden, then a lieutenant general and director of the National Security Agency, briefed four key members of Congress about the NSA's new domestic surveillance on Oct. 25, 2001, and Nov. 14, 2001, shortly after Bush signed a highly classified directive that eliminated some restrictions on eavesdropping against U.S. citizens and permanent residents.

In describing the briefings, administration officials made clear that Cheney was announcing a decision, not asking permission from Congress. How much the legislators learned is in dispute.

Former senator Bob Graham (D-Fla.), who chaired the Senate intelligence committee and is the only participant thus far to describe the meetings extensively and on the record, said in interviews Friday night and yesterday that he remembers "no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States" -- and no mention of the president's intent to bypass the Foreign Intelligence Surveillance Court.

"I came out of the room with the full sense that we were dealing with a change in technology but not policy," Graham said, with new opportunities to intercept overseas calls that passed through U.S. switches. He believed eavesdropping would continue to be limited to "calls that initiated outside the United States, had a destination outside the United States but that transferred through a U.S.-based communications system."

Graham said the latest disclosures suggest that the president decided to go "beyond foreign communications to using this as a pretext for listening to U.S. citizens' communications. There was no discussion of anything like that in the meeting with Cheney."

The high-ranking intelligence official, who spoke with White House permission but said he was not authorized to be identified by name, said Graham is "misremembering the briefings," which in fact were "very, very comprehensive." The official declined to describe any of the substance of the meetings, but said they were intended "to make sure the Hill knows this program in its entirety, in order to never, ever be faced with the circumstance that someone says, 'I was briefed on this but I had no idea that -- ' and you can fill in the rest."

By Graham's account, the official said, "it appears that we held a briefing to say that nothing is different . . . . Why would we have a meeting in the vice president's office to talk about a change and then tell the members of Congress there is no change?"

House Minority Leader Nancy Pelosi (Calif.), who was also present as then ranking Democrat of the House intelligence panel, said in a statement yesterday evening that the briefing described "President Bush's decision to provide authority to the National Security Agency to conduct unspecified activities." She said she "expressed my strong concerns" but did not elaborate.

I think whether Graham and Pelosi did or did not object is not germane. The article makes it clear that this was not "can we do this" but "we're going to do this." And Graham's account makes it seem like a bait and switch. But again, that's not the issue. Just as there is no such thing as Presidential infallibility, Congress can get it wrong as well. And clearly, those congressmen briefed on this policy either failed to understand the scope of the change or failed to speak out for reasons of national security or whatever.

We are a country of laws, not men. This entire flare-up is based on a legal opinion devised within the White House (by John Yoo and others) that the President is not a man, at least not a man subject to laws.

No president before Bush mounted a frontal challenge to Congress's authority to limit espionage against Americans. In a Sept. 25, 2002, brief signed by then-Attorney General John D. Ashcroft, the Justice Department asserted "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

That is simply not the case. It relies on the least "originalist" reading of the Constitution in memory, and it demands throwing out the 4th Amendment (or what the hell, the entire Bill of Rights). It is not alarmist to say that this is nothing so much as a full-blown Constitutional crisis.

UPDATE: This sums it up:
"If this were a dictatorship we'd have it a lot easier. Just so long as I'm the dictator." Actual quote by the president in 2000, the video is at the link. In other words, "Reading and understanding and following all these laws and statutes is hard work. Just doing whatever the fuck I want is so much more efficient!"