Check out the handwritten letter from 2003 that Jay Rockefeller just released which completely obliterates the ridiculous defense that members of congress “approved” this action.
He makes it clear that he has very serious reservations about this program and says that since he is not a technician or a lawyer, and is prohibited from speaking with staff, experts or colleagues, he cannot properly evaluate this program.
He evokes Poindexter’s TIA.
And he concludes with this:
I am retaining a copy of this communication in a sealed envelope in the secure spaces of the Intelligence Committee to ensure that I have a record of this communication.
Atrios and First-Draft have posts up highlighting one of the most egregious explanations for the NSA spying from this morning’s briefing by Gonzales and NSA chief General Hayden: they didn’t ask congress for permission because they were told by “certain” congressmen that they couldn’t get it passed.
Gonzales:…We’ve had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be — that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that — and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.
That’s not Brownie It’s not even Karl Rove. That’s the Attorney General of the United States talking.
But there’s more:
Q General, when you discussed the emergency powers, you said, agility is critical here. And in the case of the emergency powers, as I understand it, you can go in, do whatever you need to do, and within 72 hours just report it after the fact. And as you say, these may not even last very long at all. What would be the difficulty in setting up a paperwork system in which the logs that you say you have the shift supervisors record are simply sent to a judge after the fact? If the judge says that this is not legitimate, by that time probably your intercept is over, wouldn’t that be correct?
GENERAL HAYDEN: What you’re talking about now are efficiencies. What you’re asking me is, can we do this program as efficiently using the one avenue provided to us by the FISA Act, as opposed to the avenue provided to us by subsequent legislation and the President’s authorization.
Our operational judgment, given the threat to the nation that the difference in the operational efficiencies between those two sets of authorities are such that we can provide greater protection for the nation operating under this authorization.
Q But while you’re getting an additional efficiency, you’re also operating outside of an existing law. If the law would allow you to stay within the law and be slightly less efficient, would that be —
ATTORNEY GENERAL GONZALEZ: I guess I disagree with that characterization. I think that this electronic surveillance is within the law, has been authorized. I mean, that is our position. We’re only required to achieve a court order through FISA if we don’t have authorization otherwise by the Congress, and we think that that has occurred in this particular case.
Yes, the Bill of Rights is hell on efficiency. We really should do something about that.
They knew they were circumventing the law as written, that the congress would not agree to change it and they used a very dicey theory of presidential infallibility in wartime. They are saying that the president is re-authorizing “his program” every 45 days solely so that shift supervisors don’t have to waste time with paperwork.
Several senior government officials say that when the special operation first began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.
I find that interesting, don’t you?
In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.
For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone’s communications, several officials said.
Now, what do you suppose these “concerns” were all about?
Here’s a hint:
Those involved in the program also said that the N.S.A.’s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.
I would guess that these large batches of numbers were very large indeed. So large that it would be “inefficient” go to the FISA court and seek permission after the fact.
I would further guess that these large batches of numbers include a whole shitload of Americans who have nothing to do with al Qaeda. And since they had to suspend some areas of the program in 2004, I would suspect that those numbers include some people who are of interest to the administration for reasons other than terrorism.
If I were one of those “shift supervisors” (especially if I was one who had worried about John Kerry becoming president) I’d get myself a lawyer.
Will “Brokeback Mountain” play in Plano? In the movie’s first weekend in the Dallas suburb where the 2004 Mel Gibson film “The Passion of the Christ” earned some of its biggest grosses, the answer appeared to be yes.
After setting a record for the per-theater average for a dramatic movie in limited openings in New York, Los Angeles and San Francisco, critically acclaimed “Brokeback Mountain” faced its next obstacle as Focus Features expanded the so-called gay cowboy movie to strategically selected smaller cities.
The movie, directed by Ang Lee and starring Heath Ledger and Jake Gyllenhaal as two ranch hands who develop an enduring emotional bond, “Brokeback Mountain” took in an additional $2.36 million in its first foray outside those three metropolitan cities, rising to No. 8 at the box office, Focus Features estimated Sunday. Its 10-day total is $3.3 million.
The closely watched debut in Plano, Texas, “was a revelation about the accessibility of this movie,” said Focus head of distribution Jack Foley. “This is not gay-dependent. Attendance at those theaters indicates the film has the attention of suburban moviegoers.”
It was the first time since Disney’s animated “Pocahontas” in 1995 that a movie in fewer than 100 theaters cracked the top 10 box office ranking, according to tracking service Nielsen EDI Inc.
Real America watches “Desperate Housewives” and drinks Starbucks and votes Democratic some too. Keep your eye on what people actually do, not what they tell some pollster they think. Popular culture is an excellent window through which you can view how people actually think and live. Right wing evangelical Christians are not a monolith, even in the red states. It’s a mistake to assume they are.
I’m hearing various pundits discuss how bold-yet-cadid, manly-yet-sensitive the preznit is today after finally going on offense, hitting it out of the park and turning the corner. His numbers are shooting back up and he’s on firm ground.
QUESTION: I wonder if you can tell us today, sir, what, if any, limits you believe there are or should be on the powers of a president during wartime.
And if the global war on terror is going to last for decades, as has been forecast, does that mean that we’re going to see, therefore, a more or less permanent expansion of the unchecked power of the executive in American society?
BUSH: First of all, I disagree with your assertion of unchecked power.
QUESTION: (OFF-MIKE)
BUSH: Hold on for a second, please.
There is the check of people being sworn to uphold the law, for starters.
There is oversight. We’re talking to Congress all the time.
And on this program, to suggest there’s unchecked power is not listening to what I’m telling you. I’m telling you, we have briefed the United States Congress on this program a dozen times.
This is an awesome responsibility, to make decisions on behalf of the American people. And I understand that. And we’ll continue to work with the Congress, as well as people within our own administration, to constantly monitor a program such as the one I described to you, to make sure that we’re protecting the civil liberties of the United States.
To say “unchecked power” basically is ascribing some kind of dictatorial position to the president, which I strongly reject.
QUESTION: (OFF-MIKE)
BUSH: I just described limits on this particular program, and that’s what’s important for the American people to understand. I am doing what you expect me to do and, at the same time, safeguarding the civil liberties of the country.
He’s not actually lashing out at the masochistic media, no matter how much they enjoy it. He’s lashing out because this is where his argument is weakest. He’s trying to make the case that the congress somehow “approved” this action as a check to executive power.
This is not true. Notifying members of congress in a classified briefing they cannot disclose publicly is not a check. Intelligence committee members cannot give authorization to the president to break the law in the first place And to say that “telling” them what they are going to do and then classifying the information so they cannot reveal it amounts to a check on executive power is to invoke dictatorial powers.
As an exasperated Carl Levin just pointed out, the check on executive power in these circumstances is written into the law. It’s called the FISA court. And they have not yet given any reasonable explanation as to why they could not have applied for a review within the 72 hour period they are alotted after initiating the intercepts. They keep saying that they have to move fast and cannot wait and other gibberish about “long term monitoring” none of which adequately explains why they had to break the law.
The only thing we can assume from the information we have is that they didn’t want anyone, not even a rubber stamp secret court, to know who they were monitoring. Now why would that be?
The NY Times withheld certain tchnical information about this program in their story last week because of alleged national security concerns. Now that the president has admitted to authorizing it and he and his flunkies have been babbling incoherently about “moving fast” and “long term monitoring” I think it’s now imperative that they tell the public the whole story.
I also want to speak to those of you who did not support my decision to send troops to Iraq: I have heard your disagreement, and I know how deeply it is felt. Yet now there are only two options before our country – victory or defeat. And the need for victory is larger than any president or political party, because the security of our people is in the balance. I do not expect you to support everything I do, but tonight I have a request: Do not give in to despair, and do not give up on this fight for freedom.
Somebody give Richard Cohen a cigarette. (Let’s hope he didn’t watch this speech in public.)
I have one question for the media. Why is everyone so impressed that Bush is taking responsibility for going into Iraq? Has there ever been any question about that? We know he made the decision. He has made a fetish of taking responsibility for doing it. indeed, we watched him do it in defiance of virtually the whole world and half the country. This is not an admission of a mistake.
Likewise, admitting that there were no WMD is like admitting that the sun came up this morning. It’s true, yes, but saying it is not “candor” — it’s stating the obvious.
Saying that the intelligence was wrong is not taking responsibility for getting it wrong. We know it was wrong.
These are cheap rhetorical tricks and they fall for it every single time. Some GOP hack hands them a sheet talking up the president’s newfound “candor” and they all gobble it up like hungry little baby birds.
The president says he is operating within the law because his appointed lawyers have interpreted the law to say that he has. He says that the US does not torture and he believes it. He believes it because his lawyers have told him that torture is defined as pain equal to that experienced by organ failure or death. Therefore, waterboarding, which only replicates the experience of drowning is not torture. Being shackled in unusual positions for long periods of time subject to extreme heat and cold likewise is not torture. One could argue that pulling someone’s fingernails out as is shown in the film “Syriana” is not torture.
Spying on Americans is likewise legal because the president’s lawyers have said that he has the authority under the constitution to spy on Americans during wartime. In fact, they have said the executive has the authority to do anything he feels is necessary during wartime, a war which he has sole authority to wage, a war which he alone defines and which has no set definition of victory.
You might think that this redefinition of what constitutes war applies only to the GWOT. But redefining war and victory also applies to the more conventional invasion and occupation of Iraq as well, which Bush also defines as a “different kind of war.”
Here’s how he put it in his interview with Jim Lehrer:
PRESIDENT BUSH: Well, I think that this is a different kind of a war. I mean, in World War II we think of the USS Missouri and Japan– We surrender. However, if you think about World War II, there was still a mission to be accomplished, that Harry Truman saw through, which is to help an enemy become a democracy. We achieved a, by kicking Saddam Hussein out, you know, a milestone. But there’s still work to help this country develop its own democracy and there’s no question there’s difficulties because of the past history and the fact that he starved an infrastructure and the reconstruction efforts have been uneven.
But victory is, against a guy like Zarqawi, is bringing him to justice. Victory is denying safe haven to al-Qaida, and victory is marginalizing those who would destroy democracy.
He compares Iraq to WWII and even discusses the surrender on the USS Missouri, which everyone in the world accepted as the end of the war. When Harry Truman went on to “accomplish the rest of the mission,” he didn’t do it under the auspices of the country still being at war because it wasn’t. Bush has always liked this analogy, however, going back to his famous strut on another aircraft carrier when he declared “Mission Accomplished.” Unfortunately, his advisors forgot to tell him that in Germany there was no insurgency, although for months Condi and Rummy were spreading lies about the Werewolf “dead-enders” in Germany, so maybe that’s what they were telling him too.
In any case, the ridiculous WWII analogy should have been put on the shelf a long time ago. Yet Bush evidently continues to believes that he is saving the world from the existential threat of the Axis powers. And in his usual incoherent fashion, while seeing himself as Harry Truman he also says that “victory” in this war, which is a “different kinda war,” will be won when we bring a guy like Zarqawi to justice. Or deny a safe haven to al-Qaeda. Or “marginalize those who would destroy democracy.” Victory may even depend upon how the Iraqi people ‘feel.” In other words, we will have achieved victory when he says we have achieved victory.
Keep in mind that we are not talking about the Big Boogeyman, terrorism, here. We are talking about Iraq, a country in the middle east that we invaded and are occupying. We could just as easily be the Romans or the Turks or the British. There’s nothing “different” about it. But even in Iraq we don’t know what constitutes victory or defeat. Therefore, we could, theoretically, always be at war.
This is the most troubling aspect of the Yoo Doctrine. It is offensive enough that he contends that the president has completely unfettered powers during wartime. But the fact that he also believes that the president can “make war” at his discretion, define war in any way he chooses, consider “victory” to be any one or all of a thousand of unknown conditions that we may or may not be able to discern, is the truly unique factor here. And the fact that the administration is applying this vague definition of war and victory even to a conventional war like Iraq is very dangerous. It gives imperial powers forever to any president who simply says we are “at war.”
It’s probably important to draw some distinctions here between a legal theorist like John Yoo and Ted “Arkansas Project” Olsen, both of whom have promulgated this theory of unfettered executive power for years. In Yoo’s case I have no reason to believe that this is a purely political view; he is certainly a Republican, but his belief is philosophical and academic. I would be surprised if he would come out against these powers in the hands of a Democrat. (I could be wrong.) Ted Olsen, on the other hand, is nothing more than a cheap GOP operative who will change his tune on a dime when the presidency changes parties.
Events of the last couple of days show that for most of the Republican party this is purely a political game that they will support as long as the president is a Republican. (See: Kosovo) Judging from John McCain’s dodging of the question this morning, I assume that if he or any other Republican president will continue with this doctrine. He may not like torture, but he didn’t seem too troubled by spying on Americans — or the idea that the president has unfettered powers during wartime. (If anything, he looked a little bit excited by the prospect.)
There can be no doubt about where this is going. This administration has asserted a doctrine of unfettered executive power in “wartime” that will not confine itself to “suspected terrorists” as we understand them. Everything we know about human nature — and particularly about the nature of this modern Republican party — says that these powers will be used for domestic political purposes. That they felt they had to do this (even though they can monitor anyone they choose immediately as long as they make an application for a FISA review within 72 hours) can only raise suspicions that this is what they were doing. Coming on the heels of the pentagon spying story, you have to have overdosed on kool-aid not to wonder why they refuse to show the secret FISA court who they are monitoring. (Somebody needs to shake loose that list of NSA intercepts of American citizens John Bolton requested.)
National security cases … often reflect a convergence of First and Fourth Amendment values not present in cases of ‘ordinary’ crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. ‘Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power. History abundantly documents the tendency of Government—however benevolent and benign its motives—to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. Senator Hart addressed this dilemma in the floor debate on § 2511(3):
“‘As I read it—and this is my fear—we are saying that the President, on his motion, could declare—name your favorite poison—draft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activists to be a clear and present danger to the structure or existence of the Government.”
The administration may even be fooling itself that it needs all this “wartime” power to “protect America.” But the real purpose of a government spying on its own citizens is only really about one thing — political power. If there’s anything we know about the modern Republican party it’s that everything that can be done to feed the machine will be done. They are the very definition of why the founders created this ridiculously byzantine system of checks and balances — to keep people like Ted Olsen and Karl Rove from turning this country into the tyranny like the one from which we had just freed ourselves.
Has Christopher “I heart Orwell” Hitchens weighed in on this yet? I’ll be anxious to hear him try to defend this new front in the fight against Oceania.
Jane notes that aside from the NY Times and the NSA spying issue there were quite a few other examples of the press withholding stories before the election. I can think of a couple more that she didn’t mention.
First there was the fact that 60 Minutes never showed the Niger uranium story (which they had bumped for the ill-fated National Guard expose.) They have never shown it to this day even though it has turned out to be much more relevant than the Dan Rather fiasco. And the NY Times wouldn’t run the story about the suspicious bulge in Bush’s jacket even though there was credible, scientific evidence that he was wearing some sort of ususual device on his back during the presidential debates (not to mention the incontrovertible evidence that we could see it with our own eyes.)
Karl Rove had blamed Bush’s loss in the 2000 race on the DWI story in the final days of the campaign and complained bitterly that the press had conspired to sandbag them. (It was nonsense, of course, because the story had come from a local FOX affiliate in Maine, but no matter.)We know that the press has often bent over backwards for the Republicans since the early 90’s to prove they are not politically biased. And after 9/11 they bent over backwards to prove they are not soft or unpatriotic. Withholding this story was a natural result of all those pressures.
The media need to stop rationalizing their behavior and recognise that they have, in many small and large ways, capitulated to GOP pressure for some time now and they lost their perspective. I am sympathetic to how difficult it must be to deal with the Republicans. They are aggressive, hostile and relentless. But it’s gone way too far. The havoc they wreaked on domestic politicsin the 90’s was bad enough. We survived a partisan impeachment circus and a dubious presidential election, but it weakened our system.
Now we are talking about national security and very serious constitutional issues. The president is openly admitting that he did things that were illegal — and he and his supporters are asserting a defense that the president has no obligation to follow the law in wartime.
The press simply has to step up. This is serious shit; it’s not about ancient land deals in Arkansas or lying about infidelity. This isn’t about “sending a message.” It’s real and its dangerous. This democracy is dying the death of a thousand cuts and in this world of too much information, over stimulation and endless distractions we must depend upon the press to wake up and start telling the American people what they know. The president is asserting a new interpretation of the constitution and unless this country makes it very, very clear that we will not stand for it, we are in deep trouble. This won’t happen unless the media does its job and tells the country the truth:
The president broke the law, admitted it and says that he will continue to do so. He did this because he believes that the president has the right to break any law he chooses in his capacity as commander in chief.
Democrats on the committee said the panel issued 1,052 subpoenas to probe alleged misconduct by the Clinton administration and the Democratic Party between 1997 and 2002, at a cost of more than $35 million. By contrast, the committee under Davis has issued three subpoenas to the Bush administration, two to the Energy Department over nuclear waste disposal at Yucca Mountain, and one last week to the Defense Department over Katrina documents.
Some experts on Congress say that the legislative branch has shed much of its oversight authority because of a combination of aggressive actions by the Bush administration, acquiescence by congressional leaders, and political demands that keep lawmakers out of Washington more than before.
Yah think?
People say the Democrats are spineless, but they are nothing to the invertebrate GOP congress who have willingly abdicated their constitutional duty to enhance the power of the president and the Republican Machine. No pride, no integrity, no standards.
The paper offered no explanation to its readers about what had changed in the past year to warrant publication. It also did not disclose that the information is included in a forthcoming book, “State of War: The Secret History of the CIA and the Bush Administration,” written by James Risen, the lead reporter on yesterday’s story. The book will be published in mid-January, according to its publisher, Simon & Schuster.
It was the following that I found truly interesting however:
The decision to withhold the article caused some friction within the Times’ Washington bureau, according to people close to the paper. Some reporters and editors in New York and in the bureau, including Risen and co-writer Eric Lichtblau, had pushed for earlier publication, according to these people. One described the story’s path to publication as difficult, with much discussion about whether it could have been published earlier.
As it happens, this very same thing happened a few months ago — at the Washington Post. Only the reporter wasn’t lobbying to report the news. In fact, he tried very hard to persuade his editor to hold back the news until his book came out.
Guess who:
Downie was insistent that the paper be adequately prepared for the death of Deep Throat — whoever he was. During the past year he’d pressed Woodward to tell him the name, arguing that the current editor should know the identity of our source. Woodward had resisted.
[…]
In March Bradlee told Woodward that Downie was right; the time had come to tell the current post editor who Deep Throat was; then appropriate plans could be made to cover Felt’s death. Woodward, an assistant managing editor at the paper, consented uneasily.
[…]
Woodward told Downie that the book should come out several weeks after Felt’s death, and that the Post could run a pre-publication excerpt and break the news at that time.
In retrospect it was a ridiculously haphazard plan, given the excitement that would inevitably and imediately follow Felt’s death without a confirmation or denial from Woodward and myself. Too much speculation was already focused on Felt.
[…]
[Downie] was adamant that the Post make the disclosure immediately after receiving the news of Felt’s death. First of all, it might leak, and he didn’t want to get scooped. Second, now that he knew Deep Throat’s identity for certain, he could not foresee allowing an obituary of Felt to appear in the Post that did not include this rather vital news. The Post, Woodward, Bradlee, myself — and now Downie — would be criticized severely if Felt’s identity as Deep Throat was withheld for more than a few hours after he died.
Among other considerations, it would appear that the delay was related to a commercial proposition — the marketing of a book — and Downie declared that he would have no part in that. He would not hold news, “and this would be news,” he said. Period. Frankly, he said, he could not comprehend how Woodward could consider any delay. “You have always said that the identity of Deep Throat would be disclosed upon his death,” he said, implying strongly, and perhaps in this instance correctly, that Woodward was losing touch with the daily flow of news.
(“Watergate’s Last Chapter” Carl Bernstein, Vanity Fair October, 2005,
No kidding. As we all learned a few weeks ago, Woodward does not particularly care about whether something is news or not.
I don’t know all the facts about the NY Times, obviously; by all accounts the reason for withholding the story was because the paper capitulated to administration arguments about national security. But it looks bad. Tony Blankley used the impending book release to deride the story on Mclaughlin.
Franklin Foer and the Columbia Journalism Review seem to agree with the John Harris contention that the blogosphere’s criticism of the mainstream media is a partisan crusade on both sides. It simply isn’t. The left blogosphere doesn’t complain that the media is too conservative or Republican. We see it as being cowardly in the face of Republican thuggishness and that’s something else entirely. And it’s not just editors like John Harris or Tim Russert kow towing to Republican complaints or the reporters adherence to the ridiculous conventions of “he said/she said.” Those are just the obvious. The more insidious type of cowardice is that which takes scurrillous Republican tips and runs with them under the guise of “it’s out there” or that simply lets them stick without bothering to put resources to debunking them. It’s derisively giggling on Imus at the puerile bitchiness of GOP talking points like “earth tones” and “flip-flop” like a bunch of teen-age Heathers. It’s mainstreaming rightwing hatemongers by putting Ann Coulter on the cover of Newsweek and giving Rush Limbaugh a slot on election night coverage.
This isn’t about policy or partisanship. It’s about a press corps that takes the easier path and capitulates to the aggressive, hostile (and sometimes seductive) Republican machine or gets so lost in their arcane standards of objectivity and journalistic ethics that the truth no longer matters.
The Bernstein article goes on to describe a ridiculous tug of war that ensued when Vanity Fair broke the Felt story a few months later and Woodward insisted that the paper not confirm the story. He believed they couldn’t be sure that Felt really wanted to be released from the confidentiality agreement because he was old and couldn’t be relied upon to know his own mind. He argued that it would be dishonorable to confirm it even if the whole damned world already knew about it. Keeping the secret had become a singular virtue so important that it superceded all journalistic values.
Bernstein agreed at first and then was persuaded otherwise. He wrote:
In our conviction to uphold one fundamental principle (protecting our sources) we risked violating another — loyalty to the larger truth — and offense that would damage the reputation of all involved: The Post, felt ourselves.
It’s that — the loyalty to the larger truth — that we are looking for.