The story thus far: Yesterday the New York Times published a story by Eric Lichtblau titled “Judges on Secretive Panel Speak Out on Spy Program.” In this story, Lichtblau described the testimony of four former FISA judges to the Senate Judiciary Committee regarding Bush’s NSA spy program. A fifth judge who was not at the hearing sent a letter to the Committee expressing his opinion.
The main point of the story, per Lichtblau, is that the judges testified “in support of a proposal by Senator Arlen Specter, Republican of Pennsylvania, to give the court formal oversight of the National Security Agency’s eavesdropping program.”
In support of the proposal, mind you. Take note of that.
Lichtblau also wrote that the judges
voiced skepticism at a Senate hearing about the president’s constitutional authority to order wiretapping on Americans without a court order. They also suggested that the program could imperil criminal prosecutions that grew out of the wiretaps.
Judge Harold A. Baker, a sitting federal judge in Illinois who served on the intelligence court until last year, said the president was bound by the law “like everyone else.” If a law like the Foreign Intelligence Surveillance Act is duly enacted by Congress and considered constitutional, Judge Baker said, “the president ignores it at the president’s peril.”
However, Lichtblau writes, the judges avoided the question of whether the NSA program is illegal.
The judges at the committee hearing avoided that politically charged issue despite persistent questioning from Democrats, even as the judges raised concerns about how the program was put into effect.
Judge Baker said he felt most comfortable talking about possible changes to strengthen the foreign intelligence law. “Whether something’s legal or illegal goes beyond that,” he said, “and that’s why I’m shying away from answering that.”
Now the plot thickens. Also yesterday, the Washington Times published an article by Brian DeBose about the same testimony. And this article was headlined “FISA judges say Bush within law.” Here is the lede:
A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).
The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president’s constitutional authority to spy on suspected international agents under executive order.
Clearly, one of these stories is wrong. The question is, which one?
Yesterday John Hinderaker of Power Line accused Lichtblau of having “a huge personal investment in the idea (wrong, I think) that the NSA program is ‘illegal.'” To prove this charge, Hinderaker linked to another Power Line post in which Hinderaker hectored Lichtblau for writing a story Hinderaker didn’t like. Since the story is not linked I can only guess at what’s going on here, but I infer that Lichtblau interviewed people who said the NSA program is illegal as well as people who said it isn’t illegal. Hinderaker objected, thus:
Here’s my problem with your coverage: as a legal matter, there isn’t any debate. The authorities are all on one side; they agree that warrantless surveillance for national security purposes is legal. I think your articles misleadingly suggest that there is real uncertainty on this point, when there isn’t.
So we’re all agreed it’s legal. Except for these guys. Oh, and some of these guys. And just about every constitutional scholar on the planet who is not a Republican Party operative has at least some doubts about the legality of the program. But they don’t count. Clearly, the only reason Lichtblau would have interviewed and quoted such people is that he has a huge personal investment in the idea that the NSA spy program is illegal. Hinderaker, on the other hand, clearly and objectively reasons that doubts about the program’s legality simply do not exist.
Anyway, taking their cues from Hinderaker, the Right Blogosphere declared the DeBose/Moonie Times story to be the correct one. And they would know, as they have no personal investment in any of this.
Unfortunately, the Anonymous Liberal had to go make trouble and read the transcript.
I’ve now read through the transcript, and not surprisingly, it’s clear that Lichtblau was awake during the hearing and DeBose was, well, very confused. …
… Okay, let’s review the facts. The transcript of the hearing–which is very long–is only available via subscription, so you’re going to have to take my word for now. A total of five judges testified in person, and one submitted written testimony. All of the judges made it crystal clear that they had no intention of opining on the legality of the NSA program (“we will not be testifying today with regard to the present program implemented by President Bush”). The judges were there to testify about FISA and about the merits of Sen. Specter’s proposed legislation to amend FISA.
The bulk of the testimony by the judges was in praise of FISA and in praise of Specter’s proposed bill (which is clearly why Specter called them to testify in the first place). Although the judges were careful not to opine about the NSA program specifically, it was clear from their testimony that they believe further Congressional authorization is necessary and desirable and that the judiciary has an important and indispensable role to play in overseeing domestic surveillance.
Their agenda, to the extent they had one, was to lobby for the continued relevance of the FISA court. …
…I can assure you, though, that at no point did any of the judges come anywhere close to saying that the president “did not act illegally” or that he acted “within the law” when he authorized the NSA warrantless surveillance program. So the Washington Times story is complete rubbish. It could not possibly be more misleading.
This is all very bothersome. The Right had agreed to and proclaimed what the truth is, and here’s this loony liberal muddying the water. No wonder we liberals are so unpopular.
Update: See also Glenn Greenwald, “This Week in the NSA Scandal.”
Update update: Hinderaker is still defending his claim that the New York Times article, not the Moonie Times article, was the one that got the story wrong. And now another of the Power Tools, Scott Johnson, defends Hinderaker’s defense of his claim in a remarkable exercise in intellectual dishonesty. I say “remarkable” not because Johnsons is being dishonest — one expects such things from the Tools — but because he’s so bare-assed about it. He’s claiming that people didn’t say what he quotes them as saying.
Johnson quotes a passage from the testimony that he says belies “the tenor of Lichtblau’s description of the judges’ ‘skepticism.'” This is followed by a passage from the transcript in which two judges say, in effect, that since they don’t know details of what the NSA is up to they can’t offer an opinion of whether what they are doing is illegal or not.
Which is what Lichtblau and the Anonymous Liberal said they said. It was the other story, by DeBose, that claimed the judges had declared the NSA wiretapping program to be legal, and the judges clearly didn’t say that. Yet in Rightie World Lichtblau is “misleading” but DeBose is as honest and straightforward as sunshine itself.
Further, the judges clearly say that what worries them is that the NSA might be picking up domestic communications, which would require a warrant. Get this bit that Johnson quotes:
Judge Baker: Senator, did the statute limit the President? You created a balance between them [in the FISA statute], and I don’t think it took away the inherent authority that Judge Kornblum talked about. He didn’t call it “inherent,” he doesn’t like that. But the whole thing is that if in the course of collecting the foreign stuff, you are also picking up domestic stuff, which apparently is happening, I don’t know that that’s–it becomes a real question, you know, is he under his inherent power? Is he running around the statute?
From which Johnson concludes:
Judge Baker — who observes that he does not think FISA “took away” the president’s inherent constitutional authority to order warrantless foreign intelligence surveillance — is the one judge Lichtblau actually bothers to quote as allegedly expressing skepticism regarding this authority. Did Lichtblau leave the hearing early?
I do not believe that anyone with a rudimentary knowledge of the issues in this case has ever claimed that the feds need a warrant to do foreign intelligence surveillance. What people — including the retired FISA judges — are skeptical about is whether the NSA is really limiting its activities to foreign intelligence. Judge Baker just said as much. By essentially changing the subject — by implying that the issue was foreign intelligence surveillance, which it clearly wasn’t — the Tools are trying to wriggle out of having to admit they were wrong.
Johnson concludes,
In short, I don’t think that the judges can fairly be described as having voiced skepticism regarding the president’s constitutional authority to order the NSA surveillance program. Having reviewed the transcript of their testimony, however, I am voicing skepticism that Eric Lichtlbau and the New York Times are reporting on matters related to the NSA program in good faith.
Having reviewed the Power Line web site, however, I am voicing skepticism that the Tools would recognize intellectual honesty if it bit their butts.
Some people’s investments clearly are more huge than others.
I think we run the risk of letting the facists set the agenda to the extent we focus on whether Dumbya violated the law. If Democrats regain control of the House, then that becomes a relevant inquiry for high crimes and misdemeanors purposes, but the most salient question right now is did Dumbya do the right thing? That can easily be answered “no”. He did not comply with FISA, he did not try and change FISA and he gave only sketchy details about it to the Congressional Committee charged with oversight. To date he has given no explanation for this except “trust me” we are protecting you from terrorists. That only sells to the cultists these days and whether he can cock up any kind of plausible constitutional, “I get to be dictator if we are at war” argument, does not mean that what he did was right or that he should not be censured for disregarding Congress’ laws. Indeed, the idea that the president did not break the law is akin to Clinton’s asserting that it depends on the definition of “is”. For the record, I do think Dumbya broke the law and if not we need a constitutional amendment, but why not just keep hammering that what he did was dumb, disregarded the will of Congress and as best as any member of the public knows unnecessary except in Dumbya’s fevered imagination?
What did the Bush team announce? Something about ‘perception’ being ‘reality’…….
DeBose is now DeNose with his lying affecting the length to which he would alter facts to project a ‘perception’ that ignored ‘reality’. The righties who echo DeNose better watch out when championing falsities….Maha will smack ’em in the nose.
The right’s intellectual dishonesty springs from cowardice.
What I find so appalling about the right is their lack of commitment to the truth, wherever it may lead them. This commitment takes moral courage, because truth may take you to some pretty fearful or unpopular places, and moral cowards will have none of that. Turning away from the truth, leads to willful ignorance. After years of this behavior, these people become so willfully dumb that you don’t know where to begin with them.
The right believes in might-makes-right. They cling to the security they believe comes from believing in the all powerful Borg, instead of taking a sometimes lonely or painful stance for what is true. They never were able to succesfully challenge Father, whoever he was, when they were growing up. And so, lLike children, they still believe that Father – or whoever the current authority figure or belief system is – is always right.
Do this for a whole lifetime, and one’s truth detector never really developed as it never learned to figure things out on its own. Their moral courage subsequently never had a chance to develop by taking the risk of standing up for their own beliefs. As such, the truths they do connect with are small, safe ones, and so their lives and arguments revolve around pettiness and nitpicking detail, while they completely miss the bigger picture, which does them – and us – in. One of the things I’ve learned from dealing with the right is to steer clear of such pettiness as it’s like the brush underfoot that trips you up and is completely irrelevant and a waste of time.
I’ve seen otherwise intelligent people on the right twist their minds around the most outrageous fictions and add their mental energy to them, by not only believing in these fables but also militantly and maliciously promoting them. These are the dopes who believe whatever demagogues like Limbaugh tell them, no matter how absurd. All because they lacked courage and the willingness to question what they were being told, and they have an ingrained fear habit of doing so.
These people are moral infants, incapable of standing on their own without some powerful big daddy comforting them and telling them what to think. Such children should never have been given a national soapbox, but hey, this is America. Could any of us have believed, thirty or more years ago that the quality of public discourse would degenerate down to the level of food-fights?
We on the left have to do everything we can to fearlessly hew to the truth, and challenge these dangerous, misguided children on their cowardice and consequent blindness. We also have to do everything we can to discredit, disable, and displace their big daddy – their might-makes-right ideology and those who personify it – which is the kingpin of their emotional existence. The Borg then fall apart, leaderless.
Often when I write a rant like this about the right, I go back and reread it, trying to see if it also applies to the left. It’s surprising to me how often it does, whereupon I usually hit Delete, fuhgeddaboutit, into the bit bucket, and it never goes public.
There are people on the left who also blindly cling to certain comforting ideologies, but at this time in America, the danger from this is miniscule compared to the right’s patiently orchestrated takeover of the mental, emotional and therefore political landscape. I find that lefties have much more refined and operating bullshit detectors, especially after the dozens of screaming wakeup calls from the last five or twenty years.
After years of being flummoxed by the right’s linguistic, journalistic, and intimidation tricks, we’re becoming much less afraid to speak out. We’re onto their game, and we’re building our moral courage, our moral muscles, by risking speaking out and calling them on their blatant dishonesty. We need to go the further step and focus on their cowardice and their fears, which are at the root of their chronic dishonesty. We need to talk openly about their lack of commitment to the truth, wherever it may lead them. This will take us into the terrain of becoming skilled and courageous moral giants, political surgeons, cultural technicians. Our country badly needs us.
Alyosha, I have read your #4 comment several times….and really appreciate your posting’s many good points.
The phrase you used about needing to be political surgeons is the one that I would like to take off on, because, in my own study of the phenomenon of ‘right’ vs ‘left’, I have come to analyse it in terms of ‘whole body health’.
I think about America as ‘one body’ with different parts such as organs [institutions], muscles [money/energy exchange], bones [structure], circulatory system [ideas, communications, values], hormones [new concepts] and tissue cells [citizens], whereby all these parts absolutely have a role in whole body health.
When the body parts are fighting each other, the whole body suffers and declines. When you wrote of “the right’s patiently orchestrated takeover of the mental, emotional and therefore political landscape’……., I thought of a cancer spreading inside a body. A cancerous growth cares not that it eventually kills its host. A cancer cell cleverly mimics healthy cells in order to steal space and nutrients from those cells. A cancer has no loyalty to the body it depends upon, only to its own malignant growth..
While I would make the case that many huge corporations are in fact now acting as cancers on the whole of America [being given status as ‘individuals’, but having no loyalty except to their own bottom line], I would not portray individual ‘righties’ as intentionally cancerous, but rather as cancer enabling.
What I see so dangerous among the righties whom you so intelligently analysed, is that their fear and cowardice, coupled with the usual right-wing worship of corporate power, creates a critical lack of THINKING about the whole of the entity named America. In short, righties are so busy wrapping themselves protectively in ‘a need to be right’ [particularly narrowly focusing upon hot-button issues to feel righteous], that they cannot even fathom that their latest ‘authority’ Bush is trashing our Constitution, or that the hugely powerful amoral corporations are now writing our laws while simultaneously putting their corporate monies outside of America [the unleashing of corporate cancer is directly related to Reagan-era de-regulation, important regulation functioning like T-cells that fight cancerous growths]
It is beyond bizarre to me that lefties, who distinguish themselves by thinking in terms of ‘the big picture’, taking the whole of America into account [focusing on the poor’s lack of resources, thinking ahead to grandchildren’s needs for national parks, in short considering the needs of all the parts of the ‘body’ ] are labeled ‘unpatriotic’ by the righties!! This bizarre situation comes precisely from the inability of most righties to maturely realize that disease and decline can come from within. Without that adult understanding, the scared righties project all ‘evil’ onto ‘others’.
In short, I believe that the left thinks broadly and wholistically in ways that take the right into the equation, while the right thinks in ways which willfully [for reasons you list] ignore broad views of American issues and lead to the right crazily wanting to hate and destroy half of the country–the Democrats.
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Would you all call the following Senators to ask why they were not at the hearing this morning.
Kennedy 202-224-4543
Biden 202-224-5042
Kohl 202-224-5653
Feinstein 202-224-3841
Schumer 202-224-6542
Durbin 202-224-2152