Month: January 2006

A couple of last points

by Glenn Greenwald

Thanks to Digby for asking me to blog here while he was away, and thanks to all of his readers for the lively and provocative comments in response to mine and Julia’s posts. This is the place where one finds what I think is the most consistently superb writing and analysis on the Internet, and I’ve enjoyed blogging here these last few days.

I wanted to bring two final items to your attention:

(1) The nonpartisan and independent Congressional Research Service released a Report yesterday (.pdf) which analyzed and, in a mild though clear tone, decimated the legal theories advanced by the Administration to defend George Bush’s lawless eavesdropping.

Though lengthy and legalistic, the Report is well worth reading. Of particular note is its discussion of the history of eavesdropping abuses on U.S. citizens by the Executive Branch which necessitated the protections of FISA (page CRS 13); the Report’s destruction of the Administration’s claim that the AUMF (the Congressional resolution authorizing military force against Al Qaeda) can be read to have provided Bush an “exemption” from the mandates of FISA (CRS 32); and its emphatic rejection of the notion that a President can simply violate a Congressional law (rather than asking Congress to amend it) simply because the President views the law as undesirable for national security (CRS 41).

(2) Atrios has spent the last several days repeatedly asking if there are any Bush followers, anywhere, who can answer this question:

Can anyone – anywhere – explain, just a little bit – just one time – how “national security has been damaged” by revelations that the Administration was eavesdropping without FISA-required warrants and judicial oversight rather than with them?

One of the most devoted and loyal Bush followers, John at Powerline, has courageously stepped up to the plate, and attempted to provide an explanation as to how it can be said that disclosure of the illegality of the eavesdropping program “harmed national security.”

It’s the first such attempt (at least which I’ve seen) to answer this question. For reasons that I point out here on my blog, John’s explanation is not just astoundingly incoherent, but conclusively demonstrates that John — as I believe is the case for many Bush followers — does not have any idea what FISA says or what this scandal is actually about.

The utter emptiness of his response makes quite clear that the only thing “harmed” by disclosure of this illegal program is George Bush’s political interests, not American national security interests. The rage and “treason” accusations arising from this scandal rest on the borderline-religious belief that to criticize and undermine George Bush is the same as criticizing and harming the United States, and harming George Bush’s political interests — even by pointing out that he broke the law — is, therefore, by definition, to commit treason. That really is the premise of those who are defending George Bush in this scandal.

Hanging the Messenger

by Glenn Greenwald

Atrios asked this question yesterday:

So, what if it does come out that the administration was spying on journalists, political opponents, etc… How WILL the broders/russerts/matthews/hiatts/ roberts/humes of the world react?

I’m not sure exactly what those commentators would say (although I’m sure it would be appropriately balanced and would give due deference to the view that Bush had good arguments for such spying and did so only with the best of intentions for all of us), but I definitely know what Bush’s followers would say: It’s about time, and it doesn’t go far enough. Bush’s blogosphere followers have already begun justifying and excusing the Administration’s potential spying on journalists.

But clearly they believe that a lot more should be done to anti-Bush journalists than simply spying on their calls. Since the New York Times disclosed the undisputed fact that George Bush ordered his Administration to eavesdrop on American citizens with no judicial oversight and outside of FISA, the attacks on the media by the Administration and Bush’s followers have seriously escalated. Since this scandal arose, they have been relentlessly calling the Times and its sources “subversives” and “traitors,” and have been openly claiming that they are guilty of treason.

When Bush followers use terms like “subversives” and “traitors,” and when they accuse people of engaging in “treason,” many assume that they are joking, that it’s a form of political hyperbole and it’s only meant symbolically. Pajamas Media member and Instapundit favorite Dean Esmay wants it know that the terms “traitors” and “treason” are used literally, and that these traitors must meet the fate which traitors deserve:

When I say “treason” I don’t mean it in an insulting or hyperbolic way. I mean in a literal way: we need to find these 21st century Julius Rosenbergs, these modern day reincarnations of Alger Hiss, put them on trial before a jury of their peers, with defense counsel. When they are found guilty, we should then hang them by the neck until the are dead, dead, dead.

No sympathy. No mercy.Am I angry? You bet I am. But not in an explosive way. Just in the same seething way I was angry on 9/11.

These people have endangered American lives and American security. They need to be found, tried, and executed.

Similarly, on Powerline yesterday, Big Trunk shared some of his dirty fantasies about criminally prosecuting and imprisoning the reporters and editors of the Times who were responsible for having disclosed the fact that his Leader ordered the Government to eavesdrop on American citizens in violation of the law:

Assuming that the terms of the statute apply to the leaks involved in the NSA story, has the Times itself violated the statute and committed a crime? The answer is clearly affirmative. . . .

Is the New York Times a law unto itself? In gambling that constitutional immunity protects it from criminal liability for its misconduct, the New York Times appears to me to be bluffing. Those of us who are disinclined to remit the defense of the United States to the judgment of the New York Times must urge the Bush administration to call the Times’s bluff.

Even discussions of this sort have the effect, by design, of intimidating the nation’s media into remaining quiet about illegal acts by the Administration. With an Administration which throws American citizens indefinitely into military prisons without so much as charges being brought and with access to lawyers being denied, or which contemplates military attacks on unfriendly media outlets, isn’t it just inevitable that all of this talk about treason and criminal prosecution of the Times and its sources is going to have some substantial chilling effect on reporting on the Administration’s wrongdoing?

None of this is new. It’s all been tried before. The New York Times previously obtained classified documents revealing government misconduct with respect to the Vietnam War, and the Nixon Administration argued then, too, that the Times’ publication of that classified information was criminal and endangered national security. The U.S. Supreme Court in New York Times Co. v. The United States (the Pentagon Papers Case) 403 U.S. 713 (1971), barred the Nixon Administration from preventing publication by the Times of this information.

In doing so, Justice Hugo Black wrote a concurring opinion which makes clear just how dangerous and perverse it is for the Administration and its followers to seek to silence the media from reporting, truthfully, on the Administration’s illegal eavesdropping. I’m quoting from it at length because it is so instructive and applicable to what is occurring today:

Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country. . . .

Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. . . .

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.

The subtle and not-so-subtle threats against journalists for committing “treason” are not confined to the rabid Bush followers in the blogosphere. Bush’s closest political allies routinely make similar accusations, and Bush himself, in his very first Press Conference after disclosure of his eavesdropping, accused those responsible for the disclosure of “helping the enemy,” i.e., committing treason:

There is a process that goes on inside the Justice Department about leaks, and I presume that process is moving forward. My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we’re discussing this program is helping the enemy. . . .

With a Congress that is controlled by Republicans and hopelessly passive, and with a judiciary increasingly packed with highly deferential Bush appointees, the two remaining sources which can serve as meaningful checks on Executive power are governmental whistle-blowers and journalists, which is exactly why the most vicious and intimidating attacks are now being directed towards them.

I’m frequently dispirited at the way the obvious doesn’t seem to be obvious to the people who provide our news coverage, but every so often I read something that makes me feel as if perhaps someone is paying attention.

Frequently it’s written by EJ Dionne

It almost makes you feel sorry for Jack Abramoff.

Republicans once fell all over themselves to get his “moolah,” the term used famously by the disgraced superlobbyist, and to get his advice on dealing with that warm and cuddly entity known as “the lobbying community.”

Suddenly, Abramoff enters two plea bargains, and these former friends ask, in puzzled tones, “Jack Who ?”

Over the past few days, politicians — from President Bush and House Speaker Dennis Hastert on down — raced to return Abramoff contributions, or compassionately sent the moolah off to charity. There’s a scramble to treat him as a wildly defective gene in an otherwise healthy body politic, and to erase the past. But seeing the record of the past clearly is essential to fixing the future.

Abramoff, who used to pall around with close Bush allies Grover Norquist and Ralph Reed in the College Republicans and who has been a central figure in the rise of Republican dominance in Washington, is not a lone wolf. He is a particularly egregious example of how the GOP’s political-corporate-lobbying complex has overwhelmed the idealistic wing of the Republican Party.

Scott McClellan, the White House press secretary, insisted on Wednesday that Bush does not know Abramoff personally. But the record makes clear that Abramoff was a loyal and serious player in Bush’s circles.

According to an Oct. 15, 2003, story in Roll Call, Abramoff was one of a half-dozen lobbyists who raised $100,000 for Bush’s 2000 campaign. When Bush was battling Al Gore’s efforts to recount Florida’s votes, Abramoff was there with the maximum $5,000 contribution Bush was taking for the effort. A September 2003 National Journal story noted that Abramoff was so confident he would meet his fundraising goals for the president’s 2004 campaign that he was planning, as the lobbyist generously put it, “to try to help some other lobbyists meet their goals.”

The administration, in turn, was open to Abramoff. As National Journal reported in its April 20, 2002, issue, “Last summer, in an effort to raise the visibility of his Indian clients, Abramoff helped arrange a White House get-together on tax issues with President Bush for top Indian leaders, including Lovelin Poncho, the chairman of the Coushattas,” one of the tribes Abramoff represented.

When journalists would raise questions about Abramoff’s role as a lobbyist-fundraiser just a couple of years ago, Bush’s lieutenants played down his influence peddling and proudly claimed Abramoff as one of their own.

On an Oct. 15, 2003, CNBC broadcast, journalist Alan Murray asked Ed Gillespie, then chairman of the Republican National Committee, about fundraising by “people like Jack Abramoff, who represents Indian tribes here,” and another lobbyist whose name I’ll leave out because he has not been implicated in any scandals. “Are you going to sit here and tell us that their contributions to your party have nothing to do with their lobbying efforts in Washington?”

“I know Jack Abramoff,” Gillespie replied. He mentioned the other lobbyist and insisted: “They are Republicans; they were Republicans before they were lobbyists. . . . I think they want to see a Republican reelected in the White House in 2004 more than anything.”

Roll Call reported on March 12, 2001, that “GOP leaders on and off Capitol Hill are organizing a new drive to lean on major corporations and trade associations to hire Republicans for their top lobbying jobs.” The article spoke of a “Who’s Who of Republican lobbyists” who had held a meeting on the subject the week before. At the top of the list was Jack Abramoff…

There’s been quite a flurry of attempts to play this unholy mess as a bipartisan scandal (I particularly enjoyed this bizarrity from the ever Republican-friendly Gallop, where they make a valiant attempt to “prove” that corruption is a bipartisan problem for Congress in the wake of blanket news coverage of Mr. Abramoff’s activities based on polls taken, um, a while ago).

It’s not working, and we shouldn’t let it work. That means, among other things, you might want to consider defending the Democrats. After all, individual lobbyists weren’t making tens of millions of dollars selling both sides of the mall to anyone with money when we held them (pace the junior generation of the Boggs family). Maybe we should grab them back.

If we showed a bit of enthusiasm for the good our team is trying to do rather than focussing on what they’re not doing the way we would, it might help.

Just saying.

An ideology of lawlessness

by Glenn Greenwald

When Rudy Giuliani first became Mayor of New York in 1993, he famously ordered the Police Department to begin enforcing relatively minor “quality of life” laws — long-ignored prohibitions on things like jumping turnstiles and panhandling. These actions were based on the “Broken Windows” theory of criminality long touted by conservative theorist James Q. Wilson, which held that allowing even small infractions of the law is to endorse criminality which, in turn, leads to more serious crimes and then all-out lawlessness. To this day, whenever it is their turn to pay tribute to the heroic greatness of Rudy Giuliani, conservatives heap lavish praise on his refusal to overlook law-breaking and his glorious re-instatement of the rule of law.

But like the Geneva Convention, precepts of due process and so much else, “rule of law” theories are now quaint relics being cast aside by the so-called conservatives running our Federal Government. In their place, we now have a governmental culture where violations of the law are literally the norm.

What we have in our Federal Government are not individual acts of law-breaking or isolated scandals of illegality, but instead, a culture and an ideology of lawlessness. It cannot be emphasized enough that since September 11, the Bush Administration has claimed the power to act without any constraints of law or checks from the Congress or the courts. Its view of its own power and governing philosophy is based upon, and perfectly encapsulated by, this single paragraph from the incomparably pernicious September 25, 2001 Memorandum, written by then-Deputy Assistant Attorney General John Yoo:

In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President’s authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

That decisions about what actions our country takes “are for the President alone to make” – without any interference from the Congress, the courts, or anything else – is not a fringe academic theory. It is a definitely authoritarian and lawless ideology that has truly — expressly — become the governing philosophy of George Bush and his Administration. And it is not something the Administration has merely embraced in theory. It has been aggressively exercising these limitless powers.

When the President and the Vice President assure us that all of their actions are in “full accordance with the law,” what they mean by “the law” is what is described in the Yoo Memorandum. For everything broadly relating to the undeclared and eternal “war” on terror — not just on international battlefields but domestically as well — decisions are “for the President alone to make.” Pursuant to this theory, even when the President acts in violation of what we used to understand as “the law” (i.e., acts of Congress which are signed into law by the President), he is still acting “in accordance with the law,” because the power to make such decisions rests exclusively with him.

The NSA scandal has received the bulk of the media’s attention over the past month, and deservedly so. But it has drowned out other acts of wanton law-breaking by the Administration. We have learned recently that multiple federal agencies have been tracking the computer activities of American citizens in patent violation of the law. And it was disclosed in the last couple of days that the Administration some time ago unilaterally granted itself an exemption to the National Security Act of 1947, whereby it has refused to brief the Senate and House Intelligence Committees with regard to the NSA’s eavesdropping activities as required by that law. And in violation of the President’s (itself illegal) Executive Order directing the NSA to eavesdrop only on international calls in violation of FISA, the NSA has eavesdropped on domestic calls as well.

Such individual acts of law-breaking are always either excused as being inconsequential or defended as being necessary for our safety. But the dangers posed by this theory are self-evident and severe.

Just two weeks ago or so, I wrote a post asking Bush followers how any limits at all could be recognized on George Bush’s powers in light of the theories of the Yoo Memorandum, and specifically wondered why the debates we were having about things like renewal of the Patriot Act and prohibitions on torture even matter, if, as Bush claims, “such decisions alone are for the President to make.” Both Matt Welch at Reason and Scott Lemieux asked the same question with regard to other powers that the Administration could assert. It did not take long for those questions to be answered, and the answer — coming directly from the Administration — is that there are no cognizable limits on the President’s law-breaking power.

This answer was delivered in the form of a woefully under-reported “signing statement” which was issued last Friday by the President when he signed into law a defense appropriations bill passed by Congress. That bill included the McCain Amendment, which bans the use of torture as an interrogation tool and which the Administration aggressively argued against. As Marty Lederman has detailed, Bush’s signing statement plainly amounts to a re-iteration – a reminder to all of us – of the theory of the Yoo Memorandum: that while the President was participating in the symbolic ritual of signing the McCain Amendment into “law,” he has the power to violate it should he deem it in the national interest to do so. Here is what Bush said in his statement:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

So this new “law” will be interpreted “in a manner consistent” with the Administration’s view of “the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief.” Of course, the Administration’s view regarding the President’s “constitutional authority” is that such decisions are not for Congress to make, but “are for the President alone to make,” which is just another way of saying that the President can violate the law the minute he thinks he should.

Lest anyone think that this description of the President’s view of his right to break the law is exaggerated or unfair, we should listen to what the Administration itself is saying about this matter:

A senior administration official, who spoke to a Globe reporter about the statement on condition of anonymity because he is not an official spokesman, said the president intended to reserve the right to use harsher methods in special situations involving national security. . . .

But, the official said, a situation could arise in which Bush may have to waive the law’s restrictions to carry out his responsibilities to protect national security. He cited as an example a ”ticking time bomb” scenario, in which a detainee is believed to have information that could prevent a planned terrorist attack.

”Of course the president has the obligation to follow this law, [but] he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case,” the official added. ”We are not expecting that those two responsibilities will come into conflict, but it’s possible that they will.”

Isn’t it rather extraordinary to observe the Congress pass a much-debated bill which the Administration vigorously opposed, and watch the President sign it into law, only for the Administration, on the very same day, to actually come right out and say that the President “may have to waive the law’s restrictions”?

Since when do we have a system of Government where the President can simply “waive” away laws? This law was enacted specifically to prohibit acts of torture which the Administration has engaged in, and the President is openly telling us that he may have to unilaterally “waive” the law. Generously, we hear that he hopes not to have to break the law, “but it’s possible” that he will.

The NSA law-breaking scandal cannot be seen as some isolated act. It is merely the most flagrant symptom (thus far) of the fact that we have a President — with three full years left in office — who has claimed for himself the right to ignore Congressional law and who believes that virtually all decisions of any real significance in our country are his “alone to make.” FISA. The National Security Act of 1947. The McCain Amendment. These are all federal laws — laws — which the Administration is openly claiming it has the right to violate.

Shouldn’t we be having much more of a discussion than we have had about the fact that we have a President who believes he has the power to ignore laws? We have had all sorts of vigorous and sweeping debates lately about things like torture, habeas corpus, surveillance powers under the Patriot Act. But those debates are all just gestures. Like George Bush’s signing a “law” which he simultaneously claims he has no obligation to obey, the oh-so-heated debates we’ve been having are all just some sort of illusory role-playing, where we pretend that we have a representative Congress which makes laws. But what we actually have is a President who says he can violate those laws at will because such decisions are “his alone to make.”

Maybe Americans want to have a President who has these powers and can operate without much restraint. Other countries at other times have decided that they want that, usually as a means for protecting themselves against perceived external threats. But shouldn’t we be having this discussion much more explicitly and with much greater urgency than we have had it thus far?

The “war” which is said to justify these extraordinary powers isn’t going anywhere any time soon. The Administration itself constantly reminds us that it’s a long struggle which could last decades. That means that whatever law-breaking powers we permit to be vested in the President are ones that George Bush, and then subsequent presidents, are going to wield for a long time to come. At the very least, such a radical shift in how our government functions should not be effectuated in secret and without real debate.

FYI

The Talking Dog, who is a bit of a lawyer himself, professionally, has been interviewing the lawyers for a number of the defendants who have been caught up in the current administration’s no-constitutional-rights-for-citizens-we-say-are-terrorists (only we don’t have to prove it) legal policy.

Today, he posted an interview with Mr. Padilla’s lawyer.

As you may or may not know, the current administration is attempting to transfer Mr. Padilla’s case from the military courts to the criminal courts in an attempt (unsuccessful, so far) to keep the Supreme Court from deciding on the constitutionality of their denial of constitutional protections to Mr. Padilla, on the basis of their argument that the executive branch has the right to ignore the constitution.

That right, presumably, emanating from the penumbra of something or other. Love me some original intenters.

Anyway, read. It’s fascinating stuff.

O bliss o glee o joy for all my former woes a thousand times repaid…

The Abramoff mess has spread to Maryland, where it is now complicating the life of my beloved Governor Ehrlich.

I’m a lucky girl.

why the White House is not returning between $100-200 thousand bundled by pioneer Jack Abramoff

President George Bush is giving $US6000 ($8000) in political contributions from Abramoff, his wife and a client to charity, but will keep more than $US100,000 that Abramoff collected for Mr Bush’s 2004 re-election campaign, officials said.

The White House spokesman, Scott McClellan, said the $US6000 from the Abramoffs and the Saginaw Chippewa tribe of Michigan would go to the American Heart Association.

A Republican National Committee spokeswoman, Tracey Schmitt, said the money Abramoff raised as a “pioneer” for the Bush-Cheney re-election campaign would be kept. “There is nothing to indicate that those contributions reflect anything but support for the re-election campaign,” she said.

And truly, Mr. Abramoff’s associates and clients (he doesn’t appear to have too many friends, now, does he?) had a long list of reasons to be very, very interested in keeping Our Fearless Leader in the White House.

A few highlights:

Abramoff Arranged White House Meeting at in Exchange for Donation to Grover Norquist’s Americans for Tax Reform. A lawyer for the Saginaw Chippewa Indian tribe in Michigan revealed that tribal leaders had “three or four” meetings at the White House—including one with Bush and another with Rove—after they gave a $25,000 donation to Grover Norquist’s Americans for Tax Reform at Jack Abramoff’s request. ATR later confirmed that Norquist arranged White House meetings for Indian tribal leaders and others who were “supportive of the president’s agenda.” [Newsweek, 5/2/05]

Jack Abramoff Advised Department of Interior Transition. Abramoff advised the Interior Department during the Bush transition. [Wall Street Journal, 3/19/01]

Abramoff’s Former Assistant Became Rove’s Gate Keeper. In 2001 Abramoff’s personal assistant, Susan Ralston, took a similar job under Karl Rove in the White House. This move essentially made Ralston, “Rove’s gatekeeper.” [New York Times, 5/1/05]

Lobbying Network Involved Bush Administrator. According to The Washington Post, “in an attempt to influence the Interior Department — which has the final say on a tribe’s gambling ambitions — Abramoff directed his tribal clients to give at least $225,000 to the Council of Republicans for Environmental Advocacy, a conservative group that was founded by Gale A. Norton before President Bush chose her to be his interior secretary. [Washington Post, 3/13/05]

DC Lobbyist Jack Abramoff Advised Bush Interior Department Transition While Representing Indian Tribes. Abramoff advised the Interior Department during the Bush transition. Aside from the Department of Homeland Security, which regulates coastline gaming, and the Department of Treasury, which regulates illegal financial transactions, the Bureau of Indian Affairs is one of the few means the Federal Government has to regulate the gaming industry, specifically the Native American gaming industry. [Wall Street Journal, 3/19/01; www.doi.gov]

Abramoff Directed Tribal Clients Contributions to Interior Secretary Gail Norton’s Foundation. According to The Washington Post, “in an attempt to influence the Interior Department — which has the final say on a tribe’s gambling ambitions — Abramoff directed his tribal clients to give at least $225,000 to the Council of Republicans for Environmental Advocacy, a conservative group that was founded by Gale A. Norton before President Bush chose her to be his interior secretary. [Washington Post, 3/13/05]

Abramoff Also Arranged A Meeting With Interior Secretary Gail Norton For the Coushattas Tribe. Abramoff also invited the Coushattas to a fall 2001 dinner party attended by Interior Secretary Gale Norton. The Coushattas provided Abramoff with millions in consulting fees and contracts. [National Journal, 4/20/02]

Obviously Mr. Abramoff’s little circle was extremely anxious to keep the current team in place.

After all, they’d already paid a great deal of money to Mr. Abramoff in return for favors from inside the White House. They had an investment to protect.

The DCCC has updated their scandal website with the latest noisome details.

Attacking Bush’s only weapon: Fear

by Glenn Greenwald

Among those who now recognize that the Bush Administration has not just deliberately and repeatedly broken the law, but is literally claiming that George Bush has the “wartime” power to continue to break the law, there is a growing impatience to move to the next step – to take action to ensure that there are serious consequences from Bush’s brazen law-breaking. But in order for that to happen, Bush opponents must finally overcome the one weapon which has protected George Bush again and again: fear. Fear of terrorism is what the Administration has successfully inflamed and exploited for four years in order to justify its most extreme and even illegal actions undertaken in the name of fighting terrorism.

Without pause, the Administration has sought to make Americans as frightened as possible about terrorism and has used that fear to justify its actions with regard to almost every issue. Here is Dick Cheney, just yesterday, proudly defending the Administration’s illegal NSA program by arguing that Bush’s warrantless eavesdropping on Americans, like everything else the Administration does, is justified by fear of terrorists:

As we get farther away from September 11th, some in Washington are yielding to the temptation to downplay the ongoing threat to our country, and to back away from the business at hand. . .

The enemy that struck on 9/11 is weakened and fractured yet it is still lethal and trying to hit us again. Either we are serious about fighting this war or we are not. And as long as George W. Bush is President of the United States, we are serious — and we will not let down our guard.

As always, Cheney urgently warns Americans not to let our fear of terrorism diminish. George Bush has also been fueling these flames of fear in almost every speech he’s given since September 11, 2001. Here he is in a quite typical speech delivered on October 6, 2005, transparently attempting to whip up as much fear as possible in order to bolster support for our ongoing occupation of Iraq:

We know the vision of the radicals because they’ve openly stated it — in videos, and audiotapes, and letters, and declarations, and websites. . . . Their tactic to meet this goal has been consistent for a quarter-century: They hit us, and expect us to run. They want us to repeat the sad history of Beirut in 1983, and Mogadishu in 1993 — only this time on a larger scale, with greater consequences.

“The militants believe that controlling one country will rally the Muslim masses, enabling them to overthrow all moderate governments in the region, and establish a radical Islamic empire that spans from Spain to Indonesia. With greater economic and military and political power, the terrorists would be able to advance their stated agenda: to develop weapons of mass destruction, to destroy Israel, to intimidate Europe, to assault the American people, and to blackmail our government into isolation.”

“Our enemy is utterly committed. As Zarqawi has vowed, ‘We will either achieve victory over the human race or we will pass to the eternal life.’ And the civilized world knows very well that other fanatics in history, from Hitler to Stalin to Pol Pot, consumed whole nations in war and genocide before leaving the stage of history.

“The murderous ideology of the Islamic radicals is the great challenge of our new century. Yet, in many ways, this fight resembles the struggle against communism in the last century. . . .

With the rise of a deadly enemy and the unfolding of a global ideological struggle, our time in history will be remembered for new challenges and unprecedented dangers.

Islamic terrorists here, as always, are depicted as omnipotent villains with quite attainable dreams of world domination, genocide, and the obliteration of the United States. They are trying to take over the world and murder us all. And this is not merely a threat we face. It is much more than that. It is the predominant issue facing the United States — more important than all others. Everything pales in comparison to fighting off this danger. We face not merely a danger, but, in Bush’s words, an “unprecedented danger” — the worst, scariest, most threatening danger ever.

And literally for four years, this is what Americans have heard over and over and over from their Government – that we face a mortal and incomparably powerful enemy on the precipice of destroying us, and only the most extreme measures taken by our Government can save us. We are a nation engaged in a War of Civilizations whose very existence is in imminent jeopardy. All of those plans for the future, dreams for your children, career aspirations, life goals – it’s all subordinate, it’s all for naught, unless, first and foremost, we stand loyally behind George Bush as he invokes extreme and unprecedented measures necessary to protect us from this extreme and unprecedented threat.

It is that deeply irrational, fear-driven view of the world which has to be undermined in order to make headway in convincing Americans that this Administration is engaged in intolerable excesses and abuses of its power. The argument which needs to be made is the one that we have seen starting to arise in the blogosphere and elsewhere: that living in irrational fear of terrorists and sacrificing our liberties and all of our other national goals in their name is the approach of hysterics and cowards, not of a strong, courageous and resolute nation.

Several weeks ago, Digby wrote a widely-discussed post describing how Bush followers are driven by their all-consuming and pitifully child-like fears of terrorists, leading them to consent to any measures taken by George Bush as long as he promises to save them. And this weekend, Kos wrote a similar post, in which he contrasted the classic and previously defining American bravery of Patrick Henry with the frightened Bush followers who beg the Government to restrict their liberties in exchange for saving them from the terrorists.

If the blogospheric reaction of Bush supporters is any indication, this argument is as politically potent as it is self-evidently true. Kos’s post provoked shrieking seizures among the tough-guy, blindly loyal Bush followers — the ones who revealingly give themselves play name like Rocket and Captain and who never tire of touting their own toughness. In response to Kos’s post, they squealed and they yelled and they called him all kinds of names – they did everything but refute the argument.

And notably, in their anger, there was none of that smug bravado or all-too-familiar attacks on the courage of Bush opponents, because with this plainly accurate depiction, they stand revealed as being driven by nothing other than limitless, irrational fear. They are scared and they want to continue to implant their extreme fear into our national policies and onto our national character.

There is no more important goal than exposing and undermining the cowardly and exaggerated fear which lies at the core of the Bush agenda. If, as has been the case, we are bullied into starting from the tacit premise that Islamic terrorism is a unique and unprecedented evil which threatens our very existence — rather than one of many challenges which we must calmly face and overcome — then it is a foregone conclusion that whoever advocates the most extreme “anti-terrorist” measures, no matter how excessive and regardless of whether they comport with legal niceties, will prevail. If that fear-mongering premise is left unchallenged – if we are too afraid to dispute the premise that Islamic terrorism is the “unprecedented” existential threat to the United States which, at any moment, is likely to cause our cities to be in flames and our children to be glowing with radiation and therefore must outweigh every other issue and concern – then we will lose that debate every time, which is what has been happening.

After all, if it really were the case that Islamic terrorism constituted the sort of imminent, civilization-ending threat which the Administration has spent the last four years drumming into everyone’s head, then it would be extremely difficult to gin up much outrage over an eavesdropping program, warrants or not. When one’s very survival is at stake and is in imminent danger, what will matter is being protected from that danger. Everything else will pale in importance, and there will be extreme gratitude towards those who seek to save you, even if they break a few abstract rules to do it.

What must be emphasized is that one can protect against the threat of terrorism with courage, calm and resolve – the attributes which have always defined our nation as it has confronted other threats. Hysteria and fear-mongering are the opposite of strength. The strong remain rational and unafraid.

In a rational world, the basic principle of risk is that it equals impact times probability: “In professional risk assessments, risk combines the probability of a negative event occurring with how harmful that event would be.” But the Administration has spent four years urging Americans to ignore that way of thinking and instead assent to any Government measure, no matter the costs or comparative harms, as long as they are pursued in the name of fighting this Ultimate Evil.

In fact, it is now essentially prohibited in good company to even raise the prospect that the threat of terrorism is exaggerated. It is an inviolable piety that there is no such thing as overstating the terrorism risk. One is compelled to genuflect to, and tremble before, the paramounce of this Ultimate Threat upon pain of being cast aside as some sort of anti-American, terrorist-loving loon.

During the 2004 election, John Kerry accidentally stumbled in his clumsy and half-hearted way towards challenging this fear-mongering when he told The New York Times Sunday Magazine: ‘’We have to get back to the place we were, where terrorists are not the focus of our lives, but they’re a nuisance.” That provoked the predictable outraged and pious braying that Democrats are unserious about the Terrorist Threat and too weak to protect our children from this unparalleled menace. And as happens almost always when Bush opponents express a view that meets with some initial disapproval, all sorts of apologetic backtracking and retraction ensued, and that topic has been basically off-limits since.

But this is a message which Americans are clearly ready to hear, if there are people willing to deliver it. We are four years away from September 11 and, despite the dire warnings of the Bush Administration, people in rural Kansas and suburban Georgia and everywhere else are beginning to realize that on the list of problems and threats which endanger their children and impede their dreams, the potential of an attack by Islamic terrorists is not anywhere near the top of that list. We are not engulfed by the Civil War or fighting World War II. And it is past time to bolster that growing recognition by pointing out over and over that the Bush Administration’s insistence that we live in never-ending fear and panic of terrorists is the opposite of the American virtues of strength and courage in the face of threats.

And it’s a message which Americans can understand. Most people know individuals in their lives who live in this type of irrational, all-consuming fear on the micro-level – people who are scared before they are anything else, pathologically risk-averse, always hiding and exerting excess caution lest something go wrong. In its more extreme version, that sort of fear manifests as a life-destroying mental disorder. It is a pitiful image, and such people typically achieve very little. They cannot, because their fear is paralyzing.

The Bush Administration has been trying for four years to reduce this country to a collective version of that affliction. And it is hard to imagine what a nation which is fueled by such fear can accomplish. Hysteria and paranoia have never been the American national character, but along with the founding principles of our Republic, the Bush Administration has been attempting to change that, too.

The Administration has managed to get away with the Orwellian depiction of fear as being the hallmark of courage, and conversely, depicting a rational and calm approach as being a mark of cowardice. They were aided in this effort by a terrified national media and a national political elite who live in Washington, DC and New York and were so petrified of further attacks that they were easily whipped into a state of passive, uncritical compliance in exchange for promises of protection. But we are far away from the emotional shock of September 11, and the power of that Fear weapon is breaking down.

In order to persuade the population that George Bush must not be allowed to claim the powers of a King, literally including the power to break the law, Bush opponents must attack that fear as the by-product of weakness and cowardice which it is. A strong nation does not give up its freedoms or sacrifice its national character in the name of fear and panic. But that is what George Bush has spent the last four years urging the country to do, and it is what he is counting on — it is the only chance he has — for having this NSA law-breaking scandal join the litany of other scandals which have meekly and inconsequentially faded away in a cloud of manufactured fear.

What happened to conservative legal theories?

by Glenn Greenwald

Listening to the Bush Administration and its defenders try to justify George Bush’s deliberate and ongoing violations of the law, one can’t help but notice that the Constitution and Congressional statutes sure do seem quite “flexible” in the hands of those seeking to defend him — a particular irony given how stridently Bush followers rail against such legal theories in other contexts. The defenses being dredged up to justify Bush’s law-breaking certainly are notable for the liberties they take with “conservative” principles of legal argument, as well as with how sharply they contradict the legal views which the Administration itself previously claimed it believed in.

The central problem for the Administration is that George Bush deliberately engaged in conduct which FISA clearly and expressly makes it a crime to engage in. All of the legalistic smoke screens aside, the issue really is that clear. That’s because the Administration cannot escape the plain and easy-to-understand language of Section 1809 of FISA:

“A person is guilty of an offense if he intentionally— (1) engages in electronic surveillance under color of law except as authorized by statute.”

The Administration itself admits, as it must, that it engaged in electronic surveillance in a way that FISA expressly prohibits (by doing so secretly and without judicial approval). Section 1809 says that anyone who does that is guilty of a criminal offense. The law here is clear, and Bush’s violations of the law are equally clear. That presents the Administration with obvious difficulties in defending George Bush.

Because there is no plausible argument to make that Bush’s eavesdropping complied with the requirements of FISA, Alberto Gonzalez’s Justice Department is insisting that Bush had the legal right to eavesdrop on Americans in violation of that law. The DoJ issued a detailed Memorandum (.pdf) advocating its two principal legal theories as to why George Bush was permitted to engage in conduct which FISA makes it a crime to engage in. Both theories are about as far away as possible from the conservative legal principles which Bush has always claimed to believe in and which he says he wants his judicial appointees to apply.

Thus, we have one argument which claims that the 2001 Congressional Resolution authorizing military force in Afghanistan and against Al Qaeda (the “AUMF”) — a resolution which obviously never mentioned FISA, eavesdropping or surveillance, because it had nothing to do with any of those things — should nonetheless be “construed” and “interpreted” to have “impliedly” amended FISA by giving Bush an “exemption” entitling him to eavesdrop in violation of that law. And this argument is made even though the Congress which supposedly gave Bush that exemption says that it did no such thing, but to the contrary, expressly refused to provide that very authority.

And then we have the second Bush-defending argument: a dressed-up Constitutional theory which claims that George Bush has the “inherent” authority under Article II of the Constitution to violate Congressional law and eavesdrop on American citizens without the judicial oversight required by FISA – even though nothing in Article II mentions or even references the power to eavesdrop, the power to engage in surveillance, or the right to violate Congressional statutes. Indeed, the only express clause in Article II which seems to relate to this controversy is one that would rather strongly undercut the claim that the President has the right to violate Congressional law. That’s the part mandating that the President “shall take Care that the Laws be faithfully executed . . . “

So much for plain language and original intent. Who has time for those fancy constructs when George Bush needs defending? What we have in their place are implied, hidden amendments to laws which are silently buried in other laws which don’t even reference the law which it supposedly amended. And that’s backed up by a claim that George Bush has certain Executive powers which the Constitution doesn’t mention, but which instead, one presumes, are lurking quietly somewhere in Article II of the Constitution, maybe hiding behind some penumbras or sprouting from the evolving, breathing document.

Just how frivolous (and, for self-proclaimed judicial conservatives, hypocritical) these defenses are is demonstrated by the fact that the Bush Administration itself has aggressively argued against the exact legal theory which it is now trying to peddle in order to argue that Congress silently gave Bush an “exemption” to FISA. In the case of Breuer v. Jim’s Concrete of Brevard, 538 U.S. 691 (2003), the Administration vehemently (and successfully) argued in a Brief to the U.S. Supreme Court (.pdf), signed by Bush’s own Solicitor General, Theodore Olson, that a statute (such as FISA) cannot be “amended by implication” in the absence of clear Congressional intent to amend it. Thus, the Bush Administration itself just two years ago emphasized:

the cardinal rule that repeals by implication are not favored, and will not be found unless an intent to repeal is clear and manifest. . . . In the absence of an affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable. In other words, where the two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.

So, before George Bush needed an excuse for intentionally violating FISA, this was the Administration’s own argument — that Congress cannot be said to have silently repealed its own law except where it subsequently passes a new law that is in direct conflict with the first one.

The Administration’s previous view of this matter is, of course, the precise opposite of its position now. The Administration now seeks to claim that the Congress — when it enacted its 2001 resolution authorizing the use of military force in Afghanistan and against al Qaeda — somehow intended with that Resolution to amend FISA and thereby silently and “impliedly” gave the Administration the right to engage in exactly the secret, warrantless eavesdropping on American citizens which FISA makes it a criminal offense to engage in.

What we really have from these paragons of Judicial Restraint trying to defend George Bush is everything except plain language and original intent – the very tools of construction which these “conservatives,” when not concocting legal defenses for the President, claim that they believe in. That’s because the plain language of the law is crystal clear (“A person is guilty of an offense if he intentionally— (1) engages in electronic surveillance under color of law except as authorized by statute”) and leaves no doubt that George Bush broke it.

The clarity of this law is why the Administration is reduced to peddling legal theories which, no matter how they are sliced, amount to a claim that George Bush has the right to break the law. And to argue that he has that right, they are employing on George Bush’s behalf the very legal theories which advocates of “judicial restraint” have spent the last two decades ridiculing and attacking.

Leave it to MSGOP

Winners and losers in the Abramoff scandal
The GOP could suffer, opening the way for a third-party movement

It’s really kind of sweet.

Mr. Fineman and his friends at the courthouse are shocked to discover that since the party they favor of the two existing parties has taken complete control over the federal government, the influence of money has sullied the spiritual purity of Washington.

Clearly, the answer is a new party who are nothing like Democrats and who are not called Republicans (Mr. Wittmann, your moment has arrived).

You know, it’s just that kind of bold thinking by Mr. Fineman and his friends that made us what we are today.

A country controlled by an incredibly corrupt single party that cares more about money than PhDs, and about the people not at all.

Congratulations.