Category Archives: Civil Rights

Frederick the Great

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This sort of goes along with our discussion in the Glitches post — in today’s Boston Globe, Derrick Jackson writes about the great Frederick Douglass. Never let it be forgot that every civil rights activist since stood (and still stands) on Douglass’s shoulders.

Jackson mentions a speech Douglass made 200 years ago in Boston. “The speech was given at Boston’s Music Hall after a mob drove Douglass out of the Tremont Temple,” Jackson wrote. I believe this is that same speech. Jackson ties what Douglass said about slavery to gay marriage legislation that was pushed by Mitt Romney in the final weeks of his term as governor of Massachusetts. Inspirational and thought-provoking stuff.

This Is Rich

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Before going on to the mini-profile of congressman-elect Hank Johnson of Georgia — this, people, is too funny. Remember U.S. Rep. Virgil Goode (R-VA) whose over-the-top bigotry regarding a Muslim in Congress is discussed here? Well, flaming idiot Daniel Pipes says that Rep. Goode is the “target of an Islamic advocacy group’s ‘victimization game.‘”

In other words, an apologist for Goode is claiming to Goode was targeted by an Islamic group after Goode targeted Muslims. This is a bit like the Ku Klux Klan claiming to be the innocent victims of a smear campaign by the NAACP.

I mean nobody can whine about being picked on better than righties, but this is outrageous even by rightie standards.

Pipes said CAIR was “perpetually on the prowl for any incidence of anti-Muslim sentiment, real or imaginary, spontaneous or provoked, major or minor.”

What Goode said was not an “imaginary” sentiment. It was real, and it was ugly.

The organization’s goal, he said, was “to make the United States like so many other countries – a place where Muslims, Islam and Islamism cannot be freely discussed.”

“It is imperative for Americans to retain their freedom of speech about Islam — as it exists in relation to other religions — and resist these many demands for remorse.”

This goes back to the rightie notion that “freedom of speech” includes the right not to be disagreed with. Rep. Goode said what he said. He was free to say what he said. As far as I know, the Speech Police haven’t shown up at his house to haul him to the gulag.

However, if you say some damn stupid, bigoted thing, the people you offend will use their freedom of speech to express their opinion of what you said. That’s how it works, dears.

And if you’re a public official or celebrity, and public consensus is that what you said was bigoted and offensive, prepare to receive truckloads of bad press. This is a lesson Michael Richards learned recently. Do the crime, do the time.

In recent weeks I’ve been struck how much right-wing rhetoric about Muslims sounds like the stuff white supremacists used to say proudly and in public about African Americans many years ago. Just as Strom Thurmond growled ca. 1948 — “All the bayonets in the Army cannot force the ‘Negarah’ into our home, our schools, our churches and our places of recreation” — today’s bigots are posturing and chest thumping to show Muslims who’s in charge.

And like the weenies they are, they whine with self-pity when their victims posture back.

Censored

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Today the New York Times is running a “redacted” version of Flynt Leverett’s op-ed, discussed here. The column, headlined “Redacted Version of Original Op-Ed,” was published with black bars over the parts redacted.

As egalia of the Tennessee Guerilla Women says, “Take a look at the graphic here, and tell me you are not living in a state similar to the USSR.”

According to an accompanying editorial, parts of the original text were

… blacked out by the Central Intelligence Agency’s Publication Review Board after the White House intervened in the normal prepublication review process and demanded substantial deletions. Agency officials told us that they had concluded on their own that the original draft included no classified material, but that they had to bow to the White House.

Indeed, the deleted portions of the original draft reveal no classified material. These passages go into aspects of American-Iranian relations during the Bush administration’s first term that have been publicly discussed by Secretary of State Condoleezza Rice; former Secretary of State Colin Powell; former Deputy Secretary of State Richard Armitage; a former State Department policy planning director, Richard Haass; and a former special envoy to Afghanistan, James Dobbins.

Not only that, the editorial says, all information censored by the White House has been published before. With the editorial are the citations the NY Times provided the censors

… to demonstrate that all of the material the White House objected to is already in the public domain. Unfortunately, to make sense of much of our Op-Ed article, readers will have to read the citations for themselves.

Even weirder, the NY Times op-ed is a condensed version of an already published paper by Leverett that is freely available for download in PDF format from the Century Foundation (per SusanUnPC at No Quarter).

The only logical conclusion one can draw from this is that the op ed was censored because the White House disagreed with Leverett’s opinion.

Looks like Bubble Boy is fixin’ to expand the bubble.

Whose Free Speech?

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A disturbing story that came to light last week, courtesy of Think Progress —

Middle East analyst Flynt Leverett, who served under President Bush on the National Security Council and is now a fellow at the New America Foundation, revealed today that the White House has been blocking the publication of an op-ed he wrote for the New York Times. The column is critical of the administration’s refusal to engage Iran.

Leverett’s op-ed has already been cleared by the CIA, where he was a senior analyst. Leverett explained, “I’ve been doing this for three and a half years since leaving government, and I’ve never had to go to the White House to get clearance for something that I was publishing as long as the CIA said, ‘Yeah, you’re not putting classified information.’”

According to Leverett the op-ed was “all based on stuff that Secretary Powell, Secretary Rice, Deputy Secretary Armitage have talked about publicly. It’s been extensively reported in the media.” Leverett says the incident shows “just how low people like Elliot Abrams at the NSC [National Security Council] will stoop to try and limit the dissemination of arguments critical of the administration’s policy.”

In remarks to the New America Foundation, Leverett explained that the op-ed made a case for diplomatic engagement with Iran. He had submitted the op-ed to the CIA to verify that the piece had no classified information. The CIA cleared the op-ed without reservation. But the White House intervened, claiming there was classified information in the piece. Leverett says this was nothing but a bare-assed attempt to squelch debate on President Bush’s Iran policies.

Carol Giacomo of Reuters reported,

Flynt Leverett, a Middle East expert who once worked for Bush’s National Security Council, advocates a “grand bargain,” offering Iran full diplomatic and economic relations and a security guarantee in return for forswearing nuclear weapons.

This was “the best of the available options for American policy,” Leverett, now with the New America Foundation, told a conference hosted by the CATO Institute thinktank. …

… Bush has resisted even the modest step of talking with Tehran about Iraq and has shown no signs of being prepared to consider what Leverett and other analysts call “a grand bargain.”

In a Voice of America report by Barry Wood, Leverett says the Bush Administration needs Iran’s cooperation if there’s to be progress in Iraq.

Former diplomat and Central Intelligence Agency analyst Flynt Leverett says the Bush administration finds itself in the awkward position of needing Iran’s help to bring stability to war-ravaged Iraq. “They (the Iranians) are very well positioned on the ground, right now, to defend their interests in Iraq without our help. We’ve put ourselves in a situation in Iraq where at this point we need them (the Iranians) more than they need us,” he said.

This is what the Bush Administration doesn’t want you to know. And if indeed the op-ed contained no classified material, it is censorship in the purest sense of the word.

Today some rightie bloggers are also up in arms over “a disturbing story for those of us who defend freedom of speech through our blogging,” quoting Captain Ed. Government interference with the right to blog? Not quite.

HostGator has suspended the Right Wing Howler for linking to and excerpting an “editorial” at IMAO, a well-known source of biting (and excellent) political satire. Vilmar’s offending web page has been cached by Google here.

The article in question calls for saving America by killing all Arab children; in other words, it’s one of IMAO’s lead-balloon attempts at wit. There’s no question that it’s a satire, however unfunny. [Update: Actually, there is a legitimate question on this point; see update below.] HostGator suspended the Right Wing Howler account after the Council on American-Islamic Relations complained; IMAO is still online.

I can empathize with Right Wing Howler’s frustration. I lost more than a year of work when Lycos Tripod destroyed the original Mahablog archives without prior notice. Since I didn’t owe them money and had been very careful not to violate Tripod rules — there was no obscenity; I had deleted most of the graphics to stay within byte parameters, etc. — I can only assume that someone had taken offense at the anti-Bush Administration content. Needless to say, I was very angry. Although I had saved a little of it elsewhere, it still frustrates me sometime that I have no record of what I blogged from July 2002 to August 2003 (when I moved Mahablog to a new web host).

So, yeah, it’s frustrating. But it’s not censorship. Tripod doesn’t have the power to keep me from expressing opinions; it just doesn’t want my opinions on their servers.

Further, CAIR says the one li’l satire wasn’t the only problem with Right Wing Howler.

Other entries on the site contain obscene and hate- filled attacks on Islam and Muslims, as well as support for violent actions. One entry states: “It’s bad enough some (expletive deleted) in Minnesota elect a Muslim to Congress but the people in Michigan might have done them one better…Start sticking (sic) up on guns and ammo. The war will start soon.”

Here’s the post quoted above, courtesy of Google cache. It is not satire. However, it is par for the course for a rightie blog. If CAIR tries to shut down every blog publishing anti-Muslim hate speech it’ll have to take on most of the Right Blogosphere. They might as well try to clear the sand off Miami Beach.

But the point is that HostGator and Tripod are not restricting free speech. They are not the government. Tripod is a wholly owned subsidiary of a North South Korean corporation. HostGator is a privately owned company. Neither is under any obligation to host or publish anybody’s rhetoric they don’t want to host or publish. HostGator’s Terms of Service statement clearly says

We reserve the right to refuse service to anyone. Any material that, in our judgment, is obscene or threatening is prohibited and will be removed from our servers with or without notice.

The flaming bigot of Right Wing Howler is free to set up shop at another host and resume spewing out pollution.

Flynt Leverett, on the other hand, is being censored by the government. Even if Leverett does find another venue for his opinion, he (and his publisher) could face serious repercussions from the feds. Do you see the distinction, righties? If so, do you care?

Update: Amanda argues that to call the IMAO piece a “satire” in the style of Jonathan Swift’s A Modest Proposal, as Captain Ed did, is a slur of Jonathan Swift. She says,

The piece that’s being defended today is at lMAO, and it’s a “satirical” piece suggesting that the best way to handle terrorism is to kill all children of Muslims. Now, to make it very clear, the authors are right wing shills who support killing Muslims, at least under the guise of the Iraq War. This is critically important to understanding why the comparisons to Swift are asinine, besides just quality issues.

My reading — a casual reading, I admit — of the piece is that it is intended to make fun of people who are unconscious bigots. I base that opinion mostly on this bit —

Others object to this as genocide, but only a moron would do that. I’m not saying we should kill all Arabs; I’m just saying we should kill all their children. Think before you speak.

As I said, it’s a lead-balloon attempt at satire. I don’t think it gets anywhere close to being “Swiftian.” But the “Think before you speak” lick lifts the piece to the level of being almost clever. Or maybe that’s just me.

On the other hand, Pandagon commenter DivGuy writes,

As Amanda points out, in theory, this could be Swiftian satire.

Of course, satire always has a point. The point of A Modest Proposal was that the colonial treatment of the Irish was a moral abomination of such great extent that eating Irish babies would be a logical extension of the injustice.

If the IMAO piece is satire, it is one of the most cutting critiques of US policy to be posted to the web at any time, let alone by a wingnut site. The logic of a Swiftian satire of US policy would be, again, that the war was so horribly unjust that the US might at some point start killing Muslim children.

I agree; if it’s supposed to be a “swiftian” satire, as Captain Ed claims, that’s the only reasonable interpretation.

Road to Hell News Roundup

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There are some major developments in the White House’s campaign to destroy the Bill of Rights this week. These developments are largely being overlooked as we watch the Middle East go up in smoke, of course.

Yesterday, Attorney General Alberto Gonzales told the Senate Judiciary Committee that President Bush personally blocked an internal Justice Department investigation “into whether Gonzales and other senior department officials acted within the law in approving and overseeing the administration’s domestic surveillance program,” Murray Waas writes.

The investigation, by the Justice Department’s Office of Professional Responsibility, was halted when lawyers who were going to conduct the investigation were denied the security clearances that would have allowed them to view classified documents related to the surveillance program. President Bush made the decision to deny the security clearances for the investigators, Gonzales said in his testimony today.

“The president of the United States makes the decision,” Gonzales said in response to a question by Sen. Arlen Specter, R-Pa., the chairman of the Judiciary Committee, who wanted to know who denied the clearances to the investigators.

The statement by Gonzales stunned some senior Justice Department officials, who were led to believe that Gonzales himself had made the decision to deny the clearances after consulting with intelligence agencies whose activities would be scrutinized, a senior federal law enforcement official said in an interview.

The Justice Department’s Office of Professional Responsibility (OPR) launched the investigation in January at the request of some House Democrats. White House mouthpiece Tony Snow told reporters yesterday that Bush blocked the OPR investigation because OPR was not the “proper venue” for such an investigation, which is nonsense. See TalkLeft for more background.

Word is that Sen. Arlen Specter, chairman of the Judiciary Committee, is determined to bring his bogus “National Security Surveillance Act of 2006” (S2453) bill to a vote this week. The Judiciary Committee web site says the full committee will be meeting to discuss this bill tomorrow.

For background on why the bill is bogus, see Glenn Greenwald here and here. See also Shayana Kadidal at the Huffington Post.

The House Permanent Select Committee on Intelligence today is holding an open hearing to discuss “Modernizing the Foreign Intelligence Surveillance Act (FISA).” You can watch it on CSPAN3 beginning at 10 a.m. You might remember that committee chairman Peter Hoekstra (R-MI), wrote a letter to the White House complaining that Congress was not being informed of some secret intelligence programs. See emptywheel’s analysis to see why Hoekstra’s motives are more about Hoekstra than about the separation of powers.

First Amendment Confusion

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Earlier this week a foreign-born college student was arrested for posting threats to kill President Bush. As I blogged here, a number of rightie bloggers immediately jumped to the conclusion that the student was a “liberal” (in fact, the news story didn’t identify the student’s political orientation) and predicted that liberals would jump to the defense of the accused student’s free speech rights, because that’s what liberals “always” do.

When the predicted liberal tide of outrage against the student’s arrest didn’t materialize, this guy wrote, “Well of course you’re not going to openly after we preemptively accuse you of it.” Well of course, he couldn’t possibly be mistaken about what “liberals” always do, huh? (Off topic, but this post by the same blogger reveals a certain, um, confusion about what liberals actually believe.)

In fact, long-established case law says that speech inciting violence — the “clear and present danger” test — is not protected by the First Amendment. If the student clearly was seriously attempting to incite presidential assassination and not just joking (I haven’t seen what he wrote), then he’s going to have a hard time defending himself on First Amendment grounds.

Also earlier this week, Glenn Greenwald commented on the First Amendment rights of journalists who report on something the government is doing secretly that appears to be illegal. In this case, a conservative ranted that publishing a news story “against the wishes of the president” amounted to treason.

This confusion could be resolved, I believe, by reassuring the ranter that this is still the United States of America and we have not, in fact, been annexed by North Korea. Not yet, anyway.

Different day, different story: Some not-liberal bloggers are complaining that the First Amendment rights of high school students were violated — Eugene Volokh wrote,

Tyler Harper wore an anti-homosexuality T-shirt to school, apparently responding to a pro-gay-rights event put on at the school by the Gay-Straight Alliance at the school. On the front, the T-shirt said, “Be Ashamed, Our School Embraced What God Has Condemned,” and on the back, it said “Homosexuality is Shameful.” The principal insisted that Harper take off the T-shirt. Harper sued, claiming this violated his First Amendment rights.

Harper’s speech is constitutionally unprotected, the Ninth Circuit just ruled today, in an opinion written by Judge Reinhardt and joined by Judge Thomas; Judge Kozinski dissented. According to the majority, “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation” — which essentially means expressions of viewpoints that are hostile to certain races, religions, and sexual orientations — are simply unprotected by the First Amendment in K-12 schools. Such speech, Judge Reinhardt said, violates “the rights of other students” by constituting a “verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development.”

You can read the majority decision in Harper v. Poway Unified School Dist. here. If you read it you might notice what Volokh left out — prior incidents of physical altercation in the school caused by gay-baiting. From the decision:

[Assistant Principal] Antrim believed that Harper’s shirt “was inflammatory under the circumstances and could cause disruption in the educational setting.” Like LeMaster, she also recalled the altercations that had arisen as a result of anti-homosexual speech one year prior. According to her affidavit, she “discussed [with Harper] ways that he and students of his faith could bring a positive light onto this issue without the condemnation that he displayed on his shirt.” Harper was informed that if he removed the shirt he could return to class.

When Harper again refused to remove his shirt, the Principal, Scott Fisher, spoke with him, explaining his concern that the shirt was “inflammatory” and that it was the School’s “intent to avoid physical conflict on campus.”

Harper actually demanded that he be suspended; the Principal refused to do that, and instead just detained the high schooler in his office the remainder of the day to keep him out of trouble.

Harper sued, and the district court concluded that “balancing the needs of the School to keep all their students safe coupled with the foreseeable vision that other students may feel free to exhibit these types of expressions that would interfere with the work of the school and violate the rights of others against [Harper’s] interests does not tip the scales sharply in [Harper’s] favor.”

The judges went on to cite prior case law, such as Tinker v. Des Moines School District 393 U.S. 503 (1969) and Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986). Both cases deal with speech that disrupted school discipline. The primary issue was not, as Volokh suggested, speech that hurt people’s self-esteem, but speech that was causing students to become unruly and engage in shoving matches in the hall. The title of Volokh’s post — “Sorry, Your Viewpoint is Excluded from First Amendment Protection” — is, IMO, fundamentally dishonest, as is this post by another blogger, which whines that the school only banned the T-shirt because it was anti-gay.

In the past schools have banned all sorts of “speech,” including tattoos and gang colors, because the “speech” was causing discipline problems. A couple of weeks ago Volokh commented on a California school district that banned flags and patriotic clothing, U.S. and Mexican, because the students were using the symbols to taunt each other. The school said the ban was temporary; I take it some discipline problems erupted after passions were inflamed by the immigration marches. Volokh complained that California law says “high school districts can’t restrict display of the American or Mexican flags just on the theory that it might be used in a threatening (or ‘harass[ing],’ whatever exactly that means) way — it can only restrict such display that is itself threatening or harassing.” But I infer the school district was able to demonstrate there was a clear and present danger of threatening and harassing going on, not just hypothetical threatening and harassing.

I’m old enough to remember some damnfool arbitrary school clothing rules; my public school district wouldn’t let girls wear pants, for example. My high school principal pronounced a ban on T-shirts that said anything, including “Have a Nice Day” or “Visit Miami Beach.” Some situations are hard to call, I’m sure. Some principals are more authoritarian than they need to be. But it’s fairly obvious Harper Tyler was trying to incite something that wasn’t in the curriculum. (See also Jill at Feministe.)

Here’s some more context that may or may not muddy the waters — Tyler wore his T-shirt the day after the school’s Gay-Straight Alliance held a “day of silence.” Participating students wore duct tape over their mouths to symbolize the silencing effects of intolerance. They “spoke” in class through a designated representative. With the permission of the school, the Alliance had put up posters to raise awareness of harassment. A series of “incidents and altercations” had occurred when the Alliance held a day of silence the year before. So, this rightie blogger asks, if the school is so worried about “disruption” why would it allow the Gay-Straight Alliance to hold its protest against intolerance if it had incited disruption the year before?

This is not a question to dismiss out of hand. I’d like to see the posters and observe the students to get a better sense of what went down before I formed a firm opinion. If in fact the posters were not inflammatory and only conveyed the message “please be tolerant of us,” should they be censored because they might incite a violent reaction in bigoted students? In other words, in the interest of discipline, should speech requesting tolerance, and that is not insulting to another group, be treated the same as speech that is hateful and derogatory? If so, is that not giving in to the bullies?

On the other hand, if I were a teacher I’m not sure I’d put up with the tape-over-the-mouth stunt in classrooms if it got in the way of teaching. Maybe real teachers would disagree.

Seems to me the school has three choices. It can ban all displays of opinion on clothing and posters, including “Have a Nice Day.” It can exercise no restrictions and only intervene after fistfights have started. Or it can exercise critical judgment and restrict speech that seems to be intended to start fights. And in the case of the latter, judgments will be subjective and some people will always disagree with the call.

Frankly, I’m glad I’m not a school principal.

Truth by Proclamation

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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.

Yeah, I Gotta Problem With That

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I can’t help myself; sometimes I just have to take a peek at what the righties are up to. Part of my fascination with social pathology, I suppose. Anyway, after checking some rightie blogs for commentary on the Senate Judiciary Committee NSA hearings, I can report that the most compelling arguments put forth on the Right in defense of the programs are:

1. Democrats are helping the terrorists.
2. The President is right.
3. You gotta problem with that?

Truly, this controversy is less about security than it is about faith. I offer this example from Right Wing Nut House [emphasis added]:

AG Gonzalez acquitted himself well but was at a huge disadvantage. Because of the secrecy of the program, he was unable to reveal details that could have buttressed his case that the Administration’s warrantless interception of American citizen’s communications was inherently legal based on both exceptions to the FISA statute and the authority granted by the President by Congress when that body authorized the use of military force after 9/11.

Such a beautifully pure faith makes one want to weep. If only it weren’t so misplaced.

Not everyone on the Right is a true believer. Via Daou Report, there’s at least one rightie Doubting Thomas, The Lonewacko. See also “Conservative Scholars Argue Bush’s Wiretapping Is An Impeachable Offense” at Think Progress.

Chalres Babington of the Washington Post reports that “activists” of the right and the GOP are splintering on the NSA issue.

GOP lawmakers and political activists were nearly unanimous in backing Bush on his Supreme Court nominations

Um, are we forgetting the Harriet Miers flap?

and Iraq war policy, but they are divided on how to resolve the tension between two principles they hold dear: avoiding government intrusion into private lives, and combating terrorism. The rift became evident at yesterday’s Senate Judiciary Committee hearing into the surveillance program, and it may reemerge at Thursday’s intelligence committee hearing.

Babington mentions Arlen Specter , Lindsey Graham, and the Cato Institute as among those breaking ranks with the Bush Administration. On the other hand …

Democrats making similar arguments [against the NSA program] have fallen under scathing attacks from some GOP lawmakers. Pat Roberts (R-Kan.), chairman of the Senate intelligence committee, put himself at odds with Specter last week after his panel questioned the director of national intelligence and the CIA director about the NSA program.

“I am concerned that some of my Democrat colleagues used this unique public forum to make clear that they believe the gravest threat we face is not Osama bin Laden and al Qaeda, but rather the president of the United States,” Roberts said.

The argument could be made. Osama bin Laden and al Qaeda can knock down buildings and kill people, but they can’t destroy the United States itself. The Bush Administration, on the other hand, is destroying our democratic institutions from the inside.

And the White House must be worried. Moonie Times auxiliary publication Insight says that Karl himself is making offers GOP politicians can’t refuse:

The White House has been twisting arms to ensure that no Republican member votes against President Bush in the Senate Judiciary Committee’s investigation of the administration’s unauthorized wiretapping.

Congressional sources said Deputy Chief of Staff Karl Rove has threatened to blacklist any Republican who votes against the president. The sources said the blacklist would mean a halt in any White House political or financial support of senators running for re-election in November.

Makes you wonder what they’re afraid of, huh?

Mr. Rove is leading the White House campaign to help the GOP in November’s congressional elections. The sources said the White House has offered to help loyalists with money and free publicity, such as appearances and photo-ops with the president.

Those deemed disloyal to Mr. Rove would appear on his blacklist. The sources said dozens of GOP members in the House and Senate are on that list.

So far, only a handful of GOP senators have questioned Mr. Rove’s tactics.

How much political capital does Bush really have, though? Some congresspersons facing re-election this year might think it smarter to establish some distance between themselves and the White House.

See also — Today at 2:10 EST Glenn Greenwald of Unclaimed Territory will be debating John Hinderaker of Power Tool on NPR’s “To the Point.”Should be good. Also recommended, Audio clip: Comments by Michael Isikoff at Newsweek.

Update: See “What We Heard from the Attorney General” by Senator Russ Feingold at TPM Cafe.

Democracies Die Behind Closed Doors

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THE action today is the Senate Judiciary Committee hearing on the NSA spy program. For live-blogging and breaking updates, see Glenn Greenwald and ReddHedd at firedoglake.

I have only a brief window of blogging time until later today, but I do want to call your attention to today’s Bob Herbert column, which you can read online at True Blue Liberal.

The big problem related to this program, as far as the administration is concerned, is not its metastasizing threat to constitutional government, the rule of law, the privacy of innocent Americans, the venerable system of checks and balances, and the American way of life as we’ve known it.

No, the big problem for Bush & Co. — the thing that makes the president and his apologists apoplectic — is the mere fact that this domestic spying program has come to light. Investigations are under way to determine who might have leaked information about the supersecret program to The New York Times, which disclosed its existence, and others.

This is not a time for Congress or the media to bow before the intimidation tactics of a bullying administration. This is a time to heed the words of a federal judge named Damon Keith, who reminded us back in 2002 that “democracies die behind closed doors.”

Later in this very excellent column that you should read all the way through, Herbert says,

The president would have you believe that the warrantless N.S.A. spy program is a very limited operation, narrowly focused on international communications involving “people with known links to Al Qaeda and related terrorist organizations.”

If that were true, there would be no reason not to get a warrant from the secret court set up by the Foreign Intelligence Surveillance Act. The most logical reason for not getting a warrant is that the president’s intelligence acolytes, who behave as though they graduated from the Laurel and Hardy school of data mining, have not been able to demonstrate that the people being spied upon are connected to Al Qaeda or any other terror organization.

Herbert goes on to remind us that the volume of data dumped on the FBI for follow-up was worse than worthless. It wasted time that might have been used in actual investigation of terrorists.

David Stout at the New York Times describes the testimony of Attorney General Gonzales, who was allowed to testify without being under oath:

The panel’s chairman, Senator Arlen Specter, Republican of Pennsylvania, said federal law prohibits “any electronic surveillance without a court order.”

And Senator Patrick J. Leahy of Vermont, the committee’s ranking Democrat and, like Mr. Specter, a former prosecutor, said Mr. Gonzales’s assertions were not supported by history.

“Congress has given the president authority to monitor Al Qaeda messages legally, with checks to guard against abuses when Americans’ conversations and e-mails are being monitored,” Mr. Leahy said. “But instead of doing what the president has the authority to do legally, he’s decided to do it illegally, without safeguards.”

… “Mr. Attorney General,” Senator Leahy said at one point, “I’m getting the impression this administration picks and chooses what it’s subject to.”