The Curtain Is Pulled Back

Once the culture of fear yielded no scared Democrats scurrying to do their bidding, the White House literally has no idea what to do.

A day after warning that potentially critical terrorism intelligence was being lost because Congress had not finished work on a controversial espionage law, the U.S. attorney general and the national intelligence director said Saturday that the government was receiving the information -- at least temporarily.

On Friday evening, Atty. Gen. Michael B. Mukasey and Director of National Intelligence J. Michael McConnell had said in an unusually blunt letter to Congress that the nation "is now more vulnerable to terrorist attack and other foreign threats" because lawmakers had not yet acted on the administration's proposal for the wiretapping law.

But within hours of sending that letter, administration officials told lawmakers on the House and Senate intelligence committees that they had prevailed upon all of the telecommunications companies to continue cooperating with the government's requests for information while negotiations with Congress continue.

A statement describing the change was released Saturday.

They're playing with a deck bereft of aces. The only thing they have is fear. When it doesn't work, they try to scare even more, but the obviousness of the lie forced this unprecedented backtrack.

All of this says to me that the next President needs to open up the books on the Bush Administration, and that we cannot as a nation be truly healed until that happens. The intelligence leadership has been caught in an enormous lie, making false claims about lost intelligence gathering for purely political reasons. This cannot possibly be an isolated incident. And indeed, many of the officials and officers in the civil service who directed these lies and misstatements will still be working in the government under a potential Democratic Administration. It needs to be extremely clear from the very beginning that they must be rooted out, expunged and turned over to the legal system for a determination. It should be a key part of the Democratic nominee's platform. Only then can we truly "turn the page," as the front-runner is likely to say.

White House: We Damaged National Security

The Boo! Are You Scared? Administration, trying desperately to get what they want from a Congress that has, unusually, not provided it thus far, sent their version of a horse's head in the bedsheets to House Democrats yesterday, telling them that the United States "lost intelligence" as a result of the expiration of the Protect America Act last week.

“We have lost intelligence information this past week as a direct result of the uncertainty created by Congress’ failure to act,” says an underlined passage of a six-page letter signed by Attorney General Michael B. Mukasey and Director of National Intelligence J. Michael McConnell.

The letter does not give details [...]

Current intelligence activities are not affected by the expiration for a year. But the government contends that new intelligence targets cannot be certified for surveillance, creating potential gaps in intelligence.

“Because of this uncertainty, some partners have reduced cooperation,” the administration letter says. “We are working to mitigate these problems. ... This uncertainty may well continue to cause us to miss information that we otherwise would be collecting.”

Now, first of all, that is almost certainly untrue, and we're well beyond the point where the White House should get the benefit of the doubt on these matters. In fact, we know it's not true. But for a second, let's assume that it's true. Let's assume that these "partners" have gotten all skittish that they're breaking the law by helping the government in their spying and they shut down their wiretaps (or perhaps, the government forgot to pay the phone bill, as has happened before). For one moment, let's assume that to be the case.

The Democrats in Congress voted, for the most part, to extend the Protect America Act (the sensible ones, knowing it was a brazen giveaway of civil liberties, didn't). Republicans voted against it and the Bush Administration threatened to veto it. And they blocked the extension for a very specific reason.

McConnell acknowledged last week that the White House's refusal to extend the wiretapping law was meant to pressure Congress to pass the Senate bill.

So, the United States has lost intelligence, then, as a DIRECT result of the White House playing political games with national security. They have fully admitted this. The President would rather protect the phone companies and endanger the country than protect the country and endanger a portion of the profits of the phone companies.

Glenn Greenwald has more from that letter sent by Mike McConnell and Michael Mukasey to the House.

In the letter from Chairman Reyes to which McConnell and Mukasey are responding, Reyes pointed out that under the still-existing FISA law, the Government is free to commence surveillance without a warrant where there is no time to obtain one. In response, McConnell and Mukasey wrote:

[You imply that the emergency authorization process under FISA is an adequate substitute for the legislative authorities that have elapsed. This assertion reflects a basic misunderstanding about FISA's emergency authorization provisions. Specifically, you assert that the National Security Agency (NSA) or Federal Bureau of Investigation (FBI) "may begin surveillance immediately" in an emergency situation. FISA requires far more, and it would be illegal to proceed as you suggest].

Wow, what a blockbuster revelation. Apparently, as it turns out, in the United States it's "illegal" for the Government to eavesdrop on Americans without first complying with the requirements of FISA. Who would have known? It's a good thing we don't have a Government that would ever do that, or a Congress that would ever tolerate such "illegal" behavior. And it's so moving to hear the Bush administration earnestly explain that they are so hamstrung by FISA's requirements that we are all deeply vulnerable to the Terrorists, but they have no choice but to comply with its burdensome provisions -- because to do otherwise would be "illegal." [...]

Since Mike Mukasey himself just said in this letter that spying outside of FISA is "illegal," and since it's indisputable that the Bush administration did just that for years, doesn't that compel him as Attorney General to commence a criminal investigation into this "illegal" conduct?

It's really an open and shut case, should anyone want to prosecute it. The warrantless spying program was illegal when it was enacted, as surely as it's illegal right now. Not only do House Democrats need to hold firm and let the White House scream all they want, but the next Administration needs to open a criminal investigation into every top official who authorized the clearly illegal spying program. I have no faith that this will happy, sadly.

If A President Stamps His Feet In The Rose Garden, And Nobody Is There To Hear It...

It's funny that the President responds to nobody listening to his temper tantrum by... throwing another temper tantrum.

The American citizens must understand -- clearly understand that there still is a threat on the homeland, there's still an enemy which would like to do us harm, and that we've got to give our professionals the tools they need to be able to figure out what the enemy is up to so that we can stop it....

People say, oh, it doesn't matter if this law hasn't been renewed -- it does matter. It matters for a variety of reasons. It matters because the intelligence officials won't have tools necessary to get as much information as we possibly can to protect you. And it matters because these telephone companies that work collaboratively with us to protect the American people are afraid they're going to get sued.

And the American people have got to understand these lawsuits make it harder for us to convince people to help protect you. And so by blocking this good piece of legislation, our professionals tell me that they don't have all the tools they need to do their job.

This would probably work better if it wasn't the President saying it and, I don't know, someone that the public even remotely trusts. And no, faceless Bush crony Mike McConnell doesn't qualify, especially when he admits that protecting the American public is not his job, protecting corporations is.

The Protect America Act, passed by Congress last August, temporarily closed the gaps in our intelligence collection, but there was a glaring omission: liability protection for those private-sector firms that helped defend the nation after the Sept. 11 attacks. This month, I testified before Congress, along with the other senior leaders of the intelligence community, on the continuing threats to the United States from terrorists and other foreign intelligence targets. We stated that long-term legislation that modernized FISA and provided retroactive liability protection was vital to our operations. The director of the FBI told the Senate that "in protecting the homeland it's absolutely essential" to have the support of private parties.

Some have claimed that expiration of the Protect America Act would not significantly affect our operations. Such claims are not supported by the facts. We are already losing capability due to the failure to address liability protection.

He really puts it up front, doesn't he? The only "gap" in intelligence gathering is making sure nobody gets sued for doing it because it's against the law. They honestly can't come up with a reason why going to a court to get a warrant, even AFTER the surveillance, is such a burden, so they misrepresent the facts. And that's because it's not their major interest. Their interest is getting the phone companies off the hook.

A good summary of the pathetic lying and fearmongering from the right-wing is here, but it's important to understand that for the Bush Administration this is all about the phone companies, and nothing else. Because, a court case with the phone companies involved would reveal the depths of the lawbreaking undertaken by the Administration itself. This is about self-preservation.

And so we come to the Democrats, who simply put this fearmongering aside yesterday and chose to ignore it. And this has left the White House flabbergasted. They literally don't know what to do about it.

The episode was a rare uprising by Democrats against the White House on a terrorism issue, and it inspired caterwauling on both sides about the dire ramifications of the standoff.

Several Democrats said yesterday that many in their party wish to take a more measured approach to terrorism issues, and they refused to be stampeded by Bush. "We have seen what happens when the president uses fearmongering to stampede Congress into making bad decisions," said Rep. Chris Van Hollen (D-Md.). "That's why we went to war in Iraq."

White House officials and their allies were angry that the Democrats did not "blink," as one outside adviser said. The decision to defy the White House came in the form of a weeklong adjournment of the House yesterday afternoon.

They really only have one card to play, and when it doesn't work, there's nowhere else to go in the deck.

Now, in a just world that would be that. The Democrats simply wouldn't ever take this bill up again, would let FISA remain the law of the land, and would move on to other things and chuckle when Bush throws a temper tantrum every other day. But this is of course the Democrats we're talking about here. So the next sentence in the article I cited is:

Pelosi said she instructed committee chairmen to begin talks with their Democratic counterparts in the Senate, who this week supported the administration's position on the surveillance bill, suggesting that a compromise might be possible in the coming weeks.

There's no compromise necessary. FISA works fine, you can add a patch to foreign-to-foreign calls that go through an American switcher, and move on.

So I'm skeptical this will hold. Still, the Democrats have to be enjoying how they stood up to the President and nothing happened. They didn't spontaneously combust, the world didn't come to an end, and Republicans didn't turn into giants. Glenn Greenwald captures my thoughts pretty well.

On one level, it's difficult to maintain any sustained optimism about the House's defiance yesterday. They were acting far more out of resentment over the procedural treatment to which they were subjected by the White House and, more so, the Senate -- having a bill dropped in their lap again just a couple of days before a deadline and told that they had to pass it, as is, and immediately -- than out of any principled objection to warrantless eavesdropping or telecom amnesty.

And it's painfully easy to envision more than enough "Blue Dogs" eventually joining their GOP colleagues to pass the Senate bill, thus handing the White House yet another complete victory, even if it comes a little later than it was demanded. In light of the endless series of events over the last twelve months, the hope that some sort of actual conviction will cause this obstructionism to be permanent is far too naive for any rational person to entertain seriously.

Still, basic human nature -- if nothing else -- dictates that having finally liberated themselves, however fleetingly, from the truly moronic rule of the Ted "Osama-is-Celebrating" Poes of the world, and having seen that -- as McJoan put it -- "the Democrats stood up to Bush, and the world didn't end," Democrats will crave more of the sweet taste of dignity and autonomy [...]

When Democrats actually engage the debate and make their case unapologetically and with some passion, as they remarkably did yesterday, then journalists can and -- at least to some extent -- will convey the message. It's when they run away and hide and act defensively that their message does not get across. One can only hope, even while harboring substantial doubt, that having a taste of this success will drive them to crave more. Our country really can't afford to be bullied any longer by Ted Poe's fantasy jihadi parties and George W. Bush's "you're-all-going-to-die-unless- I-get-everything-I-want" threats.

Contrary to the belief of David Broder and his friends that more meek agreement with the President's demands -- i.e, "bipartisanship" -- is needed, what any healthy democracy desperately requires is precisely this type of adversarial dynamic. The Leader needs to be "defied" and "challenged" and his demands -- especially those for greater unchecked power -- need to be refused if we are to maintain basic "checks and balances" and some form of an accountable government. This is exactly what we have been so destructively lacking.

It remains to be seen if the Dems will truly get the message.

Re-Branding Torture

A couple weeks ago, John Negroponte blurted out that America has used the practice of waterboarding, but only a few times. The admission of a torture technique dating back to the Spanish Inquisition, you would think, would have led to Negroponte's sacking, mass protests lasting weeks, and in a Parliamentary system, a no-confidence vote against the current government. Instead it led to a new PR strategy:

Negroponte's comments, which were seen as confirmation that waterboarding had in fact been used before that, were not cleared beforehand and caught White House officials off guard, according to the senior administration official. "It was an accidental disclosure," said the official. It also forced a reassessment of whether the administration should at least publicly confirm Negroponte's remarks, if only to reap whatever public-relations benefit could be derived from the slip.

That third word is "benefit."

For while they're still spooked about defining waterboarding as torture - leading to inanities like DNI Mike McConnell saying "I said waterboarding was torture, but I meant that I don't like water up my nose" - they have no problem confirming these details in public, and even suggesting that we'd use it again:

“It will depend upon circumstances,” spokesman Tony Fratto said, adding “the belief that an attack might be imminent, that could be a circumstance that you would definitely want to consider.”

In other words, the message is, "Yeah, we did it, and we'll do it again, and what are you gonna do about it with your laws and regulations?"

This has been a persistent pattern. Faced with deliberately flouting the law, they turn the law into a partisan issue. Anyone who doesn't think America should torture is a dirty liberal who wants to tax our families and endanger our kids. They're so used to politics as a bar fight that they know politicizing everything is a winner - I mean, please, Dick Durbin, an investigation? What are you investigating? They told you they torture, and they're defending it.

The White House on Wednesday defended the use of the interrogation technique known as waterboarding, saying it is legal — not torture as critics argue — and has saved American lives. President Bush could authorize waterboarding for future terrorism suspects if certain criteria are met, a spokesman said.

A day earlier, the Bush administration acknowledged publicly for the first time that the tactic was used by U.S. government questioners on three terror suspects. Testifying before Congress, CIA Director Michael Hayden said Khalid Sheikh Mohammed, Abu Zubayda and Abd al-Rahim al-Nashiri were waterboarded in 2002 and 2003.

Waterboarding involves strapping a suspect down and pouring water over his cloth-covered face to create the sensation of drowning. It has been traced back hundreds of years, to the Spanish Inquisition, and is condemned by nations around the world.

The President is telling you that he authorized drowning terror suspects. He still claims it's legal, but his people won't investigate that because it's not true. He's demanding that the guy who wrote the legal opinion legitimizing torture be confirmed by the Senate, making them an accessory to torture. And somehow, there's this belief that this is the only secret that will be revealed. It's not.

For the first time, the top commander of detention operations at Guantanamo has confirmed the existence of the mysterious Camp 7. In an interview with The Associated Press, Rear Adm. Mark Buzby also provided a few details about the maximum-security lockup.

Guantanamo commanders said Camp 7 is for key alleged al-Qaida members, who must be kept apart from other prisoners to prevent them from retaliating against long-term detainees who have talked to interrogators. They also want the location kept secret for fear of terrorist attack.

And the official response from the White House will be "Yeah, we kept a secret detention camp at Guantanamo, and we'd do it again, because we believe in protecting your children, which our critics obviously don't!" And the media nods grimly, and somehow this bullying of the legal system and the Constitution continues, because nobody will punch back and use the handcuffs that are needed to take these criminals out of the White House.

This week a detainee died of natural causes at Guantanamo. It'll be a fate that will likely befall many other detainees. This particular one was accused of being a terrorist by people who held grudges against him and needed the bounty offered by the US government. He was never charged, never allowed to defend himself in court, and we'll never know just what he was guilty of doing. And if questioned, your leaders will tell you that his detention and death was necessary to protect your family. And you'll still believe that you live in a free society.

Waterboarding For Thee But Not For Me

Mike McConnell is a professional liar. He's twice lied to Congress, openly, during the debate over FISA, mischaracterizing examples of surveillance to buttress Administration arguments. Now he's actually come to the conclusion that waterboarding would be torture for him but as long as you don't have a deviated septum and would actually be drowned, it shouldn't be much of a problem.

McConnell, Director of National Intelligence, was quoted in the New Yorker edition released on Sunday as defining torture as "something that would cause excruciating pain."

Asked if waterboarding -- the practice of covering a person's face with a cloth and then dripping water on it to bring on a feeling of drowning -- fit that definition, McConnell said that for him personally, it would.

"If I had water draining into my nose, oh God, I just can't imagine how painful!" McConnell said in the article. "Whether it's torture by anybody else's definition, for me it would be torture."

But he rejected a suggestion that he personally condemned the practice [...]

"You can do waterboarding lots of ways ... I assume you can get to the point that a person is actually drowning," McConnell said in the New Yorker article, which paraphrased him as agreeing that this would certainly be torture.

McConnell said he could not be more specific because "if it ever is determined to be torture, there will be a huge penalty to be paid for anyone engaging in it."

One of the positive outcomes of the Mukasey/waterboarding affair is that you get these Bush Administration hacks, who are frightened of the prosecution they know they deserve, dancing on the head of a pin in ways that make Bill Clinton look like Abe Lincoln. They either try to split the atom like this and wind up looking foolish, or they speak the truth, which is at odds with Administration policy. An example is Admiral Michael Mullen, chairman of the Joint Chiefs, calling for the closure of Guantanamo yesterday. Plenty of Bush Administration officials have said the same thing. For the future, it's good to have so many Republicans on the record on closing Gitmo and condemning waterboarding, or looking like idiots trying not to do so. When it's actually done by a Democratic President, they aren't really going to be able to protest.

Congress To Be Closed Until MoveOn Produces More Ads

Otherwise they'd have nothing to do. The House voted to condemn an ad in a newspaper overwhelmingly today. Markos lists those Democrats in the House and the Senate who have our backs in the progressive movement. It's a short list. One of them, who's not on there because he's not yet elected, is Al Franken.

On Tuesday, Sen. Norm Coleman took out an ad in this paper criticizing me for criticizing a Senate resolution that criticized MoveOn.org for taking out an ad in the New York Times criticizing Gen. David Petraeus.

It is, of course, ridiculous that the United States Senate spent a day debating and voting on a resolution condemning an advertisement while our troops remained in Iraq, fighting a war with no end. And it's doubly ridiculous that Coleman, of all people, is still playing politics with this issue.

After all, he voted last week against a resolution that condemned personal attacks on anyone who had served our nation honorably. That would include Democrats like Max Cleland, John Kerry and John Murtha -- proud American veterans who were the targets of political attacks not just on their character, but on their patriotism. In 2004, when Murtha (a Silver Star winner) called for better armor for our troops, Coleman himself accused him of "emboldening the enemy" and "undermining the morale of our troops."

And as his reelection campaign gets underway, it's worth noting that Coleman has hired the same media consultant who ran ads in Georgia that juxtaposed pictures of Cleland, who lost two legs and an arm in Vietnam, with Osama bin Laden.

I guess now it's my turn to be attacked. I've been to Iraq four times to visit our troops; I know the incredible sacrifice our men and women in uniform make every day in service to our nation. But Norm Coleman is who he is -- so he's accusing me of "undermining our troops."

Frankly, I'm used to this kind of smear -- it's what happens when you speak truth to power in George W. Bush's America. But I think Minnesotans have had enough of this kind of political gamesmanship. As I go around the state, I don't hear a whole lot about ads in the New York Times. What I do hear is that Minnesotans want this war to end, and that if this president won't end it, they want the Senate to force him to end it.

In addition, everyone's worried that Congress will retroactively immunize telecom companies from prosecution in releasing their data to the NSA for warrantless spying. We know that this is a priority of the telecom industry, which is why they're sending an army of lobbyists to Washington to argue for immunity, including some top Clinton-era officials like Jamie Gorelick. Michael McConnell of the NSA has been lying to Congress repeatedly to get expanded powers for the executive branch and immunity for the telecoms, and yet useful idiots like Dianne Feinstein sing his praises and agree with his basic premises. Matt Stoller reports that the markup on a new FISA bill has been delayed due to public outcry, but Democrats haven't exactly inspired confidence on this front lately.

FEAR Unit Returns

I've written a bit over the years about FEAR Unit, the Federal Even-yeared Antiterror Response. It seemed like every time an election came up we'd be bombarded with terror alerts and lurid attack plans. Since the Presidential approval ratings hit the toilet, FEAR Unit has been deployed in non-election years as well, to improve Republican standing and, in one case, to get legislation passed. Jane Harman has blown the whistle on the behind-the-scenes work to get the odious FISA bill through the Congress. It turns out that the Bushies did what they do best - they started a whisper campaign, this one about a major terrorist attack on the US Capitol that turned the Fear Caucus of the Democratic Party to jelly, and allowed the Administration to get the massive surveillance powers they sought.

Republicans and the Bush administration used a 'bogus' terror threat that raised specific fears of an attack on the Capitol to scare lawmakers into adopting a dramatic temporary expansion of the government's spy powers last month, a former top intelligence committee Democrat said Wednesday.

Congress agreed to give President Bush and the nation's intelligence agencies extra authority to spy on Americans just hours before lawmakers left for a month-long recess in August. In the legislative session's final week, news emerged of an impending plot by foreign terrorists to attack the US Capitol, and Republicans pointed to the reports as justification to expand the administration's powers.

"That specific intelligence claim, it turned out, was bogus; the intelligence agencies knew that," Rep. Jane Harman (D-CA) said at a forum on the Foreign Intelligence Surveillance Act organized by the Center for American Progress in Washington. However, lawmakers did not learn of the claim's unreliability until "the day" they approved the FISA expansion, she said.

This is unconscionable and clearly should be the biggest news story of the day, if not the year. Let's go through this again: the Bush Administration used talk of a FAKE TERRORIST ATTACK to scare legislators into passing the FISA bill. There can be nothing more disgraceful than to play on those fears.

And honestly, considering that lawmakers, particularly Democrats, have had six years' worth of dealing with this guy and knowing how he operates, it's almost as disgraceful that they fell for it.

After this revelation, if any Democrat votes for re-authorization, they should be drummed right out of the party. Memo to the Democrats: the President is lying to you to get extraordinarily radical new powers. And he's manipulating the intelligence services to frighten you into doing so. And he's continuing to use his minions to do it. Michael McConnell testified the other day that the FISA court got so restrictive that NSA had to get warrants to spy on insurgents in Iraq. Not true:

That sounded dubious to us. Would the FISA Court have really issued such a patently absurd ruling? And it turns out we're not the only ones. FISA expert Kate Martin of the Center for National Security Studies also finds McConnell's statement dubious.

"It's totally implausible, like the claim about the arrests in Germany. Doesn't NSA have collection capabilities in Iraq? If so, they are totally outside FISA," Martin says. "Even if they're taking the Iraqi insurgent calls off the wire in the U.S. talking to each other, they don't need a court order and no court is going to bar them. Or is it that the NSA is so incompetent that it doesn't know they are Iraqi insurgents talking to each other and they were just blindly searching all traffic, which the court said they weren't allowed to do?"

We asked Ross Feinstein, McConnell's spokesman, to elaborate on his testimony. Feinstein declined, but indicated that McConnell stands by it.

The larger point here is that, if we know that they're lying to obtain the powers, can there be any doubt that they'd also lie about how they'd use them?

Appearing alongside Harman at Wednesday's forum was Bruce Fein, a constitutional lawyer and former Reagan administration official, who has emerged as a harsh critic of President Bush. Fein noted that FISA grew out of concerns over Nixon administration scandals and revelations that foreign intelligence resources were being abused.

"Unchecked spying invariably leads to abuses in collection for political purposes, not national security purposes," Fein said. The danger inherent in giving Bush -- or any president -- authority to spy on Americans without oversight is that "it will be hijacked to advance a political agenda."

Spread this far and wide. Make sure every Congressperson in America knows about it. Lying about terror is the tactic to serve the prime agenda of this President.

The Real Betrayal

As I've said over and over, it's going to be next to impossible to restore habeas corpus with this Congress and this President. Cloture on the Leahy-Dodd Amendment failed 56-43 today. They added a motion to reconsider, so it may still yet pass, but they'd need 67 votes to get past Bush's veto pen, and 290 in the House (people keep discounting that as if only the Senate exists, but you're not going to be able to get 290 votes for practically anything in the House). Yes, you could continue debate until the cows come home, but not only is it going to amount to nothing, but the education of the public has not been cemented to force passage. Democrats already let this go; constantly saying "we were tricked!" gets old fast.

The real betrayal here is the continuing betrayal of American values by both the Bush Administration and a pliant Congress, who always seem to be trying to fix what they could have blocked in the first place. Today comes news that Democrats may allow retroactive immunity for telecommunications companies that allowed the use of their equipment to spy on Americans, the extent of which we still don't even know.

Chairman Conyers: “Let me put it like this: how many have been overheard? I mean you’ve got minimization techniques, you wouldn’t have it if somebody wasn’t being overheard?”

McConnell: “Sir I don’t have the exact number, I’ll be happy to try and get the number provided to you.”

Conyers: “That is very, very critical.”

We already know that FBI data mining was far more expansive than at first believed. Now the Director of National Intelligence can't admit how many Americans have had their privacy violated, and the Democrats want to let telecom companies off the hook for enabling that, telecom companies who both he and the new acting Attorney General have decades of ties with? Here's Glenn Greenwald:

The FISA capitulation, though, was probably even worse. It occurred when they supposedly control the Congress. They enlarged the President's powers under the very law that he has been violating for years. They gave the Bush White House what it demanded even though the White House continues to provide them with no meaningful information about what was done during all those years when they eavesdropped on Americans in secret. And Democrats passed the law in a frenzy, under the crassest and most transparent exploitation of the Terrorist Threat ("a Terrorist attack is about to happen in DC and the blood will be on your hands unless you pass the bill we dictate").

Granting retroactive immunity to telecom companies for past lawbreaking is so plainly unjustifiable, even dangerous, that it ought to require no real debate. That Congressional Democrats are even considering submitting to this demand, let alone that they are likely to do so, dispels any doubt about what they really are.

First, retroactive immunity turns the "rule of law" into an even greater mockery than it has been for the last six years. The central premise in granting immunity is that telecom companies did nothing wrong -- even if they violated the law -- because they cooperated with warrantless spying at the behest of the President.

But we don't actually live in a country where private actors are permitted to commit crimes and violate laws provided that the President tells them that they should. The President has no greater power to authorize others to break the law than he does to break the law himself. Quite the contrary, Article II of the Constitution imposes the opposite obligation: "he shall take Care that the Laws be faithfully executed." Lawbreaking is still illegal even if George Bush says it should be done. Does that principle really need to be explained?

Apparently, yes, and if the Democrats capitulate on this, they'll take ownership of all of the Bush Administration assaults on civil liberties and the rule of law.

This underscores what I think is a critical point that cannot be emphasized enough. In late 2005 and early 2006, when I and others first began writing about the assault on our Constitution from this administration in the wake of the NSA scandal and the Jose Padilla travesty, the overarching issue was lawlessness. The administration's most radical and disturbing "terrorism" policies were undertaken without any legal authorization whatsoever, and frequently, in direct violation of the law.

But over the past twelve months, that has become less and less true. On every front of executive power -- from surveillance to detention to interrogation -- what was previously covert, lawless radicalism has now become the legally authorized and Congressionally endorsed policy of the United States, on a bipartisan basis.

On a strictly quantitative level, it is true that Republicans have been more supportive than Democrats of these policies -- in the sense that more Democrats cast votes against them -- but Democrats have done nothing meaningful to stop any of it, even when they could. Indeed, paradoxically, Democrats have actively enabled and endorsed this extremism more and more as they have gained more power. As a result, what were the illegal policies of the Bush administration have become lawful as the result of a Congress which does nothing when executive lawbreaking is revealed except enact legislation to legalize the behavior.

Did I Say That Out Loud

While decrying the public debate over the FISA bill and wiretapping, and actually claiming Americans are going to die if the debate persists, NSA head Michael McConnell also gave up a bunch of information about wiretapping that nobody knew before, certainly not during what sadly passed for public debate.

Some highlights of McConnell’s revelations:

Court ruling declared Bush’s program illegal on May 31: “After the 31st of May we were in extremis because now we have significantly less capability” when a federal court ruled part of the wiretapping program illegal, McConnell said.

Private sector actively involved in wiretapping program: “Under the president’s program, the terrorist surveillance program, the private sector had assisted us,” said McConnell. “Now if you play out the suits at the value they’re claimed, it would bankrupt these companies,” McConnell said, arguing for legal immunity for the companies when Congress returns from recess.

McConnell denies White House involvement: “The president’s guidance to me early in the process, was, ‘You’ve got the experience. I trust your judgement. You make the right call. There’s no pressure from anybody here,” McConnell claimed.

Thousands overseas are being monitored via warrants. “Offering never-disclosed figures, McConnell also revealed that fewer than 100 people inside the United States are monitored under FISA warrants. However, he said, thousands of people overseas are monitored,” states the AP.

Takes 200 hours to assemble a wiretapping warrant: McConnell alleged that “the issue is volume and time” as to why he was so adamant about pursuing warrantless wiretapping. “My argument was that the intelligence community should not be restricted. … It takes about 200 man hours to do one telephone number.”

I don't believe that it takes 200 hours to write up a frickin' warrant, but even if it did, tough guys, democracy is hard work. But the real revelation here is that AT&T and other telecom companies collaborated with the government to violate our civil liberties through spying. It's clear that McConnell has validated the lawsuits filed against these telecom companies by admitting this illegal involvement. Which is why there is going to be ENORMOUS pressure on the Congress to bail them out by making these companies immune from prosecution. Which the Democrats should respond to with some version of "Sorry, I can't hear you, maybe you should get a new phone, one that doesn't spy on me," but I am not optimistic about that happening.

AP has more. This is a major blunder by McConnell. Once again, Republicans see nothing wrong with leaking state secrets for their own political purposes.

FISA Update

So we're beginning to learn the full story behind the shameful Democratic cave on the FISA bill. Apparently a new judge was rotated into the FISA court, and he or she objected to the wiretapping of calls that are international but go through a US switcher. Everyone's hair burst into flames at the White House, and they initially wanted to dissolve the court altogether. And essentially, that's what they did, giving oversight of the wiretapping program to the people who conduct it, letting the hens run their own henhouse, really. As Anonymous Liberal points out, the final bill is an abomination.

The bill has two basic components. First, it creates a carve-out that exempts nearly all international communications (even when one party is in the U.S.) from FISA’s regular provisions (which require individualized warrants, minimization, judicial review, etc.). The second half of the bill then grants the Attorney General and the Director of National Intelligence the power to authorize warrantless surveillance of the category of communications carved out by the first half of the bill [...]

Most of the debate in Congress and coverage of the bill in the media has focused on whether these procedures and oversight requirements are sufficiently rigorous to protect Americans’ civil liberties. They’re not. But that’s more or less beside the point because–and this is what I think many people do not yet appreciate–given the way FISA is structured, the President is under no obligation to follow even these watered-down oversight requirements. They are merely optional.

This is because the bill changed the definition of "electronic surveillance" to something so narrow that all other intelligence-gathering activities exist outside of it, and therefore outside the scrutiny of the FISA court.

It is imperative that members of Congress and the media be made aware of the full scope of this bill. It is not as advertised. By carving out a large category of surveillance activities from the definition of “electronic surveillance,” the bill effectively exempts such surveillance from FISA altogether. And while the bill purports to establish conditions and procedures for conducting warrantless surveillance, these requirements are effectively optional and, in any case, there is no penalty in the statute for disobeying them. Those lawmakers who voted for this bill need to be confronted with these facts and shamed into doing something to correct the situation.

I know lawmakers don't read the bills, but seriously, how could they have allowed this and gotten rolled so easily? The fact remains that any contact with a "foreign intelligence" target, in other words anyone foreign, is now legally susceptible to spying. Which means American citizens will be caught up in that net. And this doesn't seem to bother anyone because it's "only temporary." Yeah, I'd like to see the strategy for that fight in 180 days. I'm sure it'll be just as sterling.

The Bush Administration sought an amendment of FISA to overcome roadblocks that the FISA court threw in its way. It put its case to Congress in secret and sent its national intelligence czar to negotiate a deal. When he concluded an agreement, Bush rejected it. The White House replied with threats, essentially stating that as soon as another terrorist attack occurs, we will pin the blame on Democrats in Congress because of their failure to amend FISA to give us what we want.

As usual, the White House was not really interested in compromise. In fact, their conduct demonstrated that they would have much preferred not getting their way; they were in search of a political issue. News of such a ploy might even be enough, with a full-court press from the heretofore pliant media, to reverse our current political doldrums and make people take notice.

But Congress looked Bush’s insatiable quest for power squarely in the eye, unlocked the chicken coop, and said to the fox “here–take anything you want.” The changes that were made were subtle, but arguably they gave the Bush Administration even more than it asked for. And from this point forward, any conversation any American has with a foreigner or a person overseas may be snooped upon, no warrants necessary.

Meanwhile, the government wasted no time in using their expanded data collection powers by punishing the official alleged to have revealed the illegal spying program in the first place.

During the very time Congress was debating codifying President Bush's lawbreaking by revising the FISA law many of his allies had been afraid to publicly challenge as unconstitutional, Alberto Gonzales' DOJ was raiding the home of a former Justice official to identify the person who first brought the illicit program to light [...]

The agents seized (Thomas) Tamm's desktop computer, two of his children's laptops and a cache of personal files. Tamm and his lawyer, Paul Kemp, declined any comment. So did the FBI. But two legal sources who asked not to be identified talking about an ongoing case told NEWSWEEK the raid was related to a Justice criminal probe into who leaked details of the warrantless eavesdropping program to the news media. The raid appears to be the first significant development in the probe since The New York Times reported in December 2005 that Bush had authorized the National Security Agency to eavesdrop on the international phone calls and e-mails of U.S. residents without court warrants.

The next thing that the Bush Administration will want is immunity. They know that they've expressly broken the law for five years, and while they have sanction for it now, after 2009 a real Attorney General may prosecute. So their next move is clearly to ensure that nobody, particularly not the telecom companies who have given over their infrastructure to the NSA so they can vacuum up millions of communications, is legally liable.

But the Center for Constitutional Rights is trying to head them off by seeking an injunction to declare the FISA bill unconstitutional.

Yesterday, lawyers for Guantanamo Bay detainees asked a federal judge in San Francisco to invalidate the recently-passed FISA law that lets the Bush administration conduct warrantless surveillance on suspected terrorists without first getting court-approved warrants.

“We are asking your honor, as swiftly as possible, to declare this statute unconstitutional,” said Michael Avery, a lawyer for the Center for Constitutional Rights. … “Neither Congress nor the president has the power to repeal the Fourth Amendment’s warrant requirements,” Avery said.

In CCR v. Bush, the Center is arguing that the government’s surveillance jeopardizes its ability to represent Gitmo clients. CCR reports that it has engaged in thousands of telephone calls and e-mails with people outside the United States in the course of its representation.

This whole episode reveals that fearmongering still works and that the Constitution really is just a piece of paper to those who swear an oath to defend it.

Fourthbranch: "I Don't Recall"

This is very interesting. Cheney has no problem lying on the teevee about anything. He's the guy who claimed on CNBC that he never said it was "pretty well confirmed" that Mohammed Atta met with an Iraqi agent in Prague before 9/11, when he said exactly that on Meet the Press.

So when he goes on Larry King and refuses to answer whether or not he sent Abu Gonzales and Andy Card to John Ashcroft's hospital bed to extract a sign-off on the warrantless wiretapping program from him while he was under sedation. Cheney said "I have no recollection of that."

Yesterday, a NYT editorial said this outright:

Unwilling to accept [DOJ's refusal to reauthorize the program], Vice President Dick Cheney sent Mr. Gonzales and another official to Mr. Ashcroft’s hospital room to get him to approve the wiretapping.

So there seems to be some information here that's public knowledge among the journalist class, but not the public.

It also appears that Arlen Specter received the letter he wanted. CNN is reporting a letter that NSA head Michael McConnell sent to Specter defending Abu G's contention that he didn't perjure himself when saying that there was no disagreement within the Justice Department on the program. The key judgments:

A number of these intelligence activities were authorized in one order;
One particular aspect of these activities and nothing more was acknowledged;
This is the only aspect that can be discussed publicly.

In other words, shut up. Is this the first time the White House has acknowledged that there are secret, ONGOING eavesdropping and intelligence programs that Americans don't know about? And they're also claiming that it was approved by the Congress. Could that mean Jane Harman, as emptywheel speculated?

Gonzales is making a technical argument and the White House is backing him up. Meanwhile, Fourthbranch is shutting his yap. There's a lot going on here and it's very fluid.

UPDATE: The House Judiciary Committee does the right thing, demands details of these separate, unacknowledged programs, as it is the right of the Congress to know (particularly the Intelligence Committee, designed to give oversight to intelligence activities of this government).

UPDATE II: Wow. Data-mining that may be included in this "unacknowledged intelligence activity" was specifically defunded by the Congress:

Sec. 8131.

[snip]

(b) None of the funds provided for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence shall be available for deployment or implementation except for:

(1) lawful military operations of the United States conducted outside the United States; or

(2) lawful foreign intelligence activities conducted wholly overseas, or wholly against non-United States citizens.

'Course, the President wrote a signing statement essentially nullifying this law, which is an appropriation, so it's completely illegal for them to do so (no different than Iran-Contra). Here's emptywheel:

Since that time, of course, we’ve learned that the Bush Administration has been using data-mining. It has been using data-mining to analyze data collected in the United States to identify targets for wiretaps, one party to which could be in the United States. And in fact, NSA didn’t have the technical ability to ensure that it wasn’t tapping communications between two targets, both of whom were in the United States. The Bush Administration was violating the clear intent of the law passed in 2003 to forbid data-mining in the United States.

When Bush confirmed the domestic wiretap program, he described it in terms that would mostly kind of comply with Congress’ intent when it explicitly forbade such activities. But he never denied that the activities associated with the program prior to March 2004 clearly violated Congress’ intent when it passed the Appropriations Act in 2003.

The Congress needs to keep pushing. What we don't know is going to be shocking.

UPDATE III: I should have mentioned that Fourthbranch still thinks he's a fourth branch, calling the office "unique" in an interview with CBS News. Which begs the question, why is this guy giving so many interviews all of a sudden? Is he trying to whip up support for Stephen Hayes' book on him? Is this his 2008 campaign rollout? Wait, I just threw up a little in my mouth...

Sorry America, Gotta Wiretap You.

As George Bush sits down with Congress today to begin the process of creating a "compromise bill" on Iraq, it might be good for Democratic leaders to pick up a New York Times and see how good the Administration is at keeping their word:

Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January.

Rather, they argued that the president had the constitutional authority to decide for himself whether to conduct surveillance without warrants.

As a result of the January agreement, the administration said that the National Security Agency’s domestic spying program has been brought under the legal structure laid out in the Foreign Intelligence Surveillance Act, which requires court-approved warrants for the wiretapping of American citizens and others inside the United States.

But on Tuesday, the senior officials, including Michael McConnell, the new director of national intelligence, said they believed that the president still had the authority under Article II of the Constitution to once again order the N.S.A. to conduct surveillance inside the country without warrants.

During a hearing Tuesday of the Senate Intelligence Committee, Mr. McConnell was asked by Senator Russ Feingold, Democrat of Wisconsin, whether he could promise that the administration would no longer sidestep the court when seeking warrants.

“Sir, the president’s authority under Article II is in the Constitution,” Mr. McConnell said. “So if the president chose to exercise Article II authority, that would be the president’s call.”

This inherent authority argument is completely bogus, and it has been practically laughed out of court every time it's been offered. This is essentially a trashing of the rule of law in favor of a strong President, which you can also see on display in today's Wall Street Journal, where a Bush authoritarian argues exactly that. It's an important thing to remember when you hear the media mau-mauing the Democrats and telling them they have to make a deal on Iraq. The President is not interested in deals, he's interested in supreme executive power. He thinks he can continue to defy the law in all sorts of situations, including spying on American citizens without a warrant.

By the way, the reason for this hearing was to look at new legislation the Administration proposed which would essentially save the telecom industry from imprisonment and bankruptcy:

While administration officials, citing national security concerns, have declined to discuss publicly what communications gaps they wish to plug, their proposed legislation seems designed to single out so-called “transit traffic,” purely international telephone calls and e-mail that go from one foreign country to another, but happen to be digitally routed through the United States telecommunications system.

The administration’s proposal would also provide legal immunity for telecommunications companies that cooperated with the National Security Agency’s surveillance program without warrants before it was brought under the surveillance act in January. It would also provide legal protections for government workers who took part in the N.S.A. program.

The Politico is hosting a debate for the Republican candidates tomorrow, and you can submit questions that may get to the air. You might want to ask these authoritarians-in-waiting if they believe there's any check on Presidential power. We've been through six years of a President who would gladly answer "none" right out in the open.