Category Archives: Civil Rights

It’s the Warrants, Stupid

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I agree with John at AMERICAblog and Stephen Kaus at Huffington Post that the righties are missing the point on the NSA issue. By several million miles.

The righties are grasping to their bosoms a new Rasmussen poll finding that 64 percent of Americans believe the National Security Agency should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States. Even 51 percent of Democrats surveyed said yes. Bush is vindicated! they crow. This has just gotta hurt the left, they exclaim. America is OK with NSA, says Little Lulu.

However, Rasmussen doesn’t seem to have included some critical distinctions, like “warrants” or “judicial oversight.” The righties are still waltzing with a straw man — that us lefties object to surveillance of possible terrorists. But it’s not the snooping, it’s the snooping without warrants, that we object to.

I mean, even I would say yes to the question “Should the NSA intercept telephone conversations between terrorism suspects in other countries and people living in the United States?” Just so long as the NSA follows legal procedures.

And let’s not forget the Bushies have already demonstrated a proclivity for using the NSA for purely political purposes. They used the NSA to snoop on UN delegates and Mohamed ElBaradei of the IAEA, for example. Without proper oversight, we have no idea who the Bushies really are snooping on.

Ezra Klein writes,

There’s no doubt the NSA should — nay, must! — tap the phones of suspected terrorists. The only issue is whether they are an agency unbound, freed from all judicial oversight and/or congressional constraint. Administration apparatchiks will try to twist it into a referendum on the president’s authority to tap phones in the War on Terror. It’s not. It’s a referendum on whether any President should ever be trusted with the tools and authority of a totalitarian dictator.

Just try explaining that to righties, though. Or try explaining physics to a hamster, which is nearly as futile.

I’m fascinated by the way so many rightie bloggers flip off the question of legality as so much noise and focus only on how the issue will impact politics. For example, winger Jeff Goldstein at Protein Wisdom wrote (italics are Mr. Goldstein’s),

Poll numbers of course have no bearing on whether or not the NSA program authorized by Bush (to the extent it has been revealed) is legal—but it does suggest that in spite of the decidedly anti-administration slant being put on the program by most of the legacy media, a strong majority of Americans believe that the program is a good idea, and that the President is using appropriate historical authority in authorizing and defending it.

Will these results convince partisan Democrats who’ve been pushing the story that they’re not likely to gain much politically by pressing the issue? That remains to be seen. And it remains to be seen how SCOTUS will rule on inherent authority for foreign intelligence wiretapping.

Translation: Who cares if the President is running the Constitution through a shredder, as long as it’s hurting Democrats?

Of course, Mr. Goldstein has managed to bullshit himself that “case law” supports Bush’s warrantless wiretaps; Scott at Lawyers, Guns and Money says otherwise. But you know righties; they could get a memo from God saying the warantless wiretaps are unconstitutional, and they’d just write off God as a terrorist sympathizer.

Update: See also Glenn Greenwald.

Probable Cause

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In the aftermath of September 11 —

Surveillance applications poured in. A flood of new FBI agents, not trained in FISA law, added another complication. It was critical that the government satisfy the FISA law’s “probable cause” requirement that the target was a foreign agent.

“You’d have an FBI agent screaming, ‘I need this warrant and I need it now,'” Lesemann recalled recently. “He’s screaming, ‘People will die unless you go to court.’ Or an agent would say, ‘This is a bad person, we need to move on this,’ and I’d say, ‘Yes, this is a bad person, but there’s no ‘foreign power’ here.'”

The snip above was taken from an article in the New Jersey Star-Ledger on August 21, “Changes in the law put spotlight on a shadowy court,” by Mary Jo Patterson. Dana Lesemann, quoted in the article, was a Department of Justice lawyer with top-secret national security clearance. She had been with the DoJ since 2000. “Her job involved collaborating with intelligence agents to prepare applications for the FISA court — and making sure the government justified the intrusive surveillance,” Patterson wrote.

This article was written before Wiretapgate became public, but it reveals that the FBI and Bush Administration were frustrated by the “foreign service” requirement. As we learned a couple of days ago, the FISA court has been challenging Bush Adinistration applications at an unprecedented rate, in spite of the fact that FISA standards were lowered by the Patriot Act. Patterson wrote,

In time, the [FISA]court came to be seen as the enforcer of “the wall,” a collection of laws and administrative policies that sought to keep national-security surveillance separate from domestic law enforcement.

FISA required that foreign-intelligence gathering be “the” purpose of any surveillance. Unlike conventional wiretaps, FISA surveillance did not require federal agents to show probable cause to believe a crime had been, or would be, committed. FISA required only that the government certify it had probable cause to believe that targets were agents of a foreign power.

The Patriot Act lowered the standard for a FISA warrant. Rather than stipulating that foreign-intelligence gathering be “the” purpose of surveillance, Section 218 of the act required that gathering such intelligence be “a significant” purpose.

Former Attorney General John Ashcroft interpreted that provision to mean law enforcement officers, not just intelligence agents, could initiate and manage FISA investigations. As a result, “the wall” virtually disappeared.

But it didn’t disappear enough to satisfy the FBI and the Bush Administration, apparently. As the opening quote indicates, many were frustrated by the “foreign intelligence” requirement.

Today Armando at Kos quotes testimony by then-Attorney General John Ashcroft to the Senate Judiciary Committee in June 2004. It’s clear the FBI was, literally, all thumbs when it came to FISA requests. Bottlenecks developed, but the bottlenecks were in the FBI, not the court. One suspects the “flood of new FBI agents, not trained in FISA law” that Patterson wrote about was a big part of that problem. And the clueless wonder, Ashcroft, was slow to fix the problem. I would think FBI Director Robert S. Mueller bears some responsibility also.

But problems between the FISA court and the FBI did not begin with the Bush Administration. During the tenure of Director Louis Freeh, for example, according to Patterson:

It was not that the court was opposed to intelligence agents’ passing information along to criminal prosecutors. It just wanted to manage and be part of the information flow.

This uneasy relationship between the FBI and the court would later be blamed for the FBI’s reluctance to work up a FISA surveillance warrant application for Zacarias Moussaoui, the so-called 20th hijacker, during the runup to 9/11.

FBI field agents arrested Moussaoui on Aug. 15, 2001, in Minnesota, where he was enrolled in a flight school. Although the agents suspected he was a terrorist, he was detained on an immigration violation.

The agents desperately wanted a FISA warrant to search his laptop. FBI headquarters, however, was not satisfied that Moussaoui was an agent of a foreign power and threw up “roadblocks,” according to a 2002 letter to FBI director Robert Mueller from Coleen Rowley, chief counsel in the FBI’s Minneapolis office.

After the attacks of Sept. 11, the government got its search warrant; Moussaoui was arrested and prosecuted. In April of this year he was convicted of participating in the 9/11 conspiracy.

Although this episode is sometimes held up by righties as an example of the “cumbersome” nature of working with the FISA court, the problem was actually within the FBI bureaucracy, not with FISA. And, as I said above, the Patriot Act made the standards for obtaining a warrant even lower. According to Patterson, in 2002 the FISA court rejected Ashcroft’s contention that Section 218 of the Patriot Act granted criminal investigators wide access to intelligence material and the authority to run FISA investigations. However,

Ashcroft appealed the decision to the Foreign Intelligence Surveillance Court of Review. This court, made up of three additional federal judges, had existed since the beginning of FISA, but had never been convened before.

In its first-ever ruling, the review court reversed the FISA court.

Ashcroft’s procedures remained in place.

Yet, in spite of this unprecedented laxity, the Bush Administration has had applications bounced, and Bush decided FISA was too much bother. Who needs oversight when you talk to God? But considering that the “foreign” part of “foreign intelligence” was a big hangup, one wonders how careful the Bushies have been to separate “foreign” from “domestic.”

Well, actually, I don’t wonder. I just don’t have proof.

That the White House uses the NSA as its own personal toy is a given — we know they used the NSA to snoop on UN delegates and Mohamed ElBaradei of the IAEA, for example. And we have learned that the NSA has been tracing large volumes of phone and Internet traffic in the United States. Do we think for a moment that the Bushies have any scruples whatsoever regarding “domestic” snooping? And for non-security-related purposes? Puh-leeze …

In other wiretap news, today we learn from Lichtblau and Risen at the New York Times that “Defense lawyers in some of the country’s biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.” We don’t know if any of them were subject to illegal wiretaps, and I suspect if they were the Bushies will find ingenious ways to stonewall investigations. For more commentary, see “Meet the Fan” by ReddHedd at firedoglake.

Why They Snoop

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Jason Leopold of Raw Story reports that Condi Rice authorized a plan to use the NSA to spy on UN delegates in 2003.

President Bush and other top officials in his administration used the National Security Agency to secretly wiretap the home and office telephones and monitor private email accounts of members of the United Nations Security Council in early 2003 to determine how foreign delegates would vote on a U.N. resolution that paved the way for the U.S.-led war in Iraq, NSA documents show.

Two former NSA officials familiar with the agency’s campaign to spy on U.N. members say then-National Security Adviser Condoleezza Rice authorized the plan at the request of President Bush, who wanted to know how delegates were going to vote. Rice did not immediately return a call for comment.

The former officials said Defense Secretary Donald Rumsfeld also participated in discussions about the plan, which involved “stepping up” efforts to eavesdrop on diplomats.

This is actually old news; the NSA angle was reported in the Observer in March 2003, before the Iraq invasion.

The United States is conducting a secret ‘dirty tricks’ campaign against UN Security Council delegations in New York as part of its battle to win votes in favour of war against Iraq.

Details of the aggressive surveillance operation, which involves interception of the home and office telephones and the emails of UN delegates in New York, are revealed in a document leaked to The Observer.

The disclosures were made in a memorandum written by a top official at the National Security Agency – the US body which intercepts communications around the world – and circulated to both senior agents in his organisation and to a friendly foreign intelligence agency asking for its input.

See also Shakespeare’s Sister.

I recall that in 2004 the NSA was also used to wiretap Mohamed ElBaradei, of the International Atomic Energy Agency and winner of the Nobel Peace Prize. The Bushies were pissed at ElBaradei for trying to warn them prior to the Iraq invasion that Saddam Hussein was not a nuclear threat.

Now, I don’t know offhand if these wiretaps would have required warrants. But it does show us that the Bushies have no qualms about snooping for purely political purposes.

No Answers

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Glenn Greenwald asked Bush defenders to “explain how there can be any limits at all on his power under the theories of Executive Power which they are advocating to argue that Bush had the right to violate Congressional law.”

In response, there are two posts from Leon at Red State.org and two posts from Jeff Goldstein at Protein Wisdom, one of which largely relied on what Jeff reverently calls “a long and meticulously argued post” from John Hinderaker at Powerline. Leon also alerted me by e-mail to the issuance yesterday of a Memorandum from the Department of Justice (.pdf) which sets forth the Administration’s legal defense of its behavior.

The “long and meticulously argued post” includes these representative paragraphs:

The starting point, of course, is the Constitution. Article II of the Constitution sets out the powers and duties of the President. Some people do not seem to realize that the executive branch is coequal with the legislative and judicial branches. The President has certain powers under the Constitution, and they cannot be taken away or limited by Congressional legislation any more than the President can limit the powers of Congress by executive order. …

… This brings us back where we started, i.e., the Constitution. The only constitutional limitation on the President’s power to intercept communications by Americans for national security purposes is that such intercepts be “reasonable.” Is it reasonable for the administration to do all it can to identify the people who are communicating with known terrorists overseas, via the terrorists’ cell phones and computers, and to learn what terrorist plots are being hatched by those persons? Is it reasonable to do so even when—rather, especially when–some portion of those communications come from people inside the United States? I don’t find it difficult to answer those questions; nor, if called upon to do so, would the Supreme Court.

In other words, the President is not bound to follow laws passed by Congress if (in his discretion) he believes they infringe on his powers, and he can engage in warrantless searches that he (in his discretion) deems “reasonable.” And these decisions may be made in secret.

That’s pretty much absolute power, is it not? So the answer must be, no; there are no limits to the President’s powers.

The rest of the blog posts boil down to “you lefties don’t understand that we’re at war.” And Judd at Think Progress addresses the DoJ memo here. Be sure to read the rest of Glenn Greenwald’s post; it is outstanding.

The righties continue to churn out turgid screeds of legalosity to defend Bush’s warrantless search policy. And they continue to use the straw man argument that we lefties are opposed to surveillance of potential terrorists. (Once again, no one is arguing against surveillance, just that it be conducted within the law.) But after all this time the righties have yet to provide satisfactory answers two simple questions: Why not comply with FISA? And if FISA is cumbersome, why not ask Congress for changes in the regulations?

Hello? Righties? Anybody ….. ?

“That’s How Richard Nixon Got in Trouble”

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“Crypto Man” by Michael Scherer in Salon (and Truthout) focuses on James Bambord, a respected journalist who has covered the National Security Agency for 25 years.

… President Bush has admitted to ordering warrantless NSA wiretaps of American citizens, an admission that blindsided Bamford just as it shocked many in Congress. While politicians bicker over legal shades of gray, Bamford believes the president clearly broke the law, and he has called for a special prosecutor to investigate. “What you have here is the administration going around the only protection the public has from the NSA, and doing it on their own,” Bamford told CNN during a marathon of interviews for MSNBC, NPR, C-SPAN, CBS News and NBC News. “That’s how Richard Nixon got in trouble, and one of the reasons he left office.”

For Bamford, there is only black and white when it comes to the Foreign Intelligence Surveillance Act, a 1978 law that specifically requires warrants for any NSA wiretapping of U.S. citizens. “If you want to eavesdrop on U.S. citizens, you go to court. If you don’t, you go to jail,” Bamford says. “If you want to change the law, you go to Congress.”

You might also be interested in Bamford’s comments on MSNBC’s “The Abrams Report” on December 21.

ABRAMS: Attorney General Alberto Gonzales today again saying that President Bush has the authority to order the super secret National Security Agency to eavesdrop on foreigners and Americans without getting a warrant from a court. NBC News has confirmed that a federal judge who serves on the court that‘s supposed to approve requests to spy has quit over the warrantless program.

The remaining judges on the panel will meet and discuss the Bush spy program in the next two weeks. But now claims on numerous conservative Web sites that Bill Clinton did the same thing when he was president. They cite a 2000 “60 Minutes” report where a Canadian intelligence analyst said the NSA routinely monitored innocent civilians.

So, is it true that it‘s been going on for a long time? James Bamford is an expert on the National Security Agency, his latest book is “Body of Secrets: Anatomy of the Ultra-Secret National Security Agency from the Cold War Through the Dawn of a New Century”. Thank you for coming on the program.

And so I ask you, is it true?

JAMES BAMFORD, AUTHOR, “BODY OF SECRETS”: No, I‘ve written two books on NSA and looked very closely at the NSA spying on Americans and I haven‘t found any evidence of NSA doing that since the Nixon administration. Once the Nixon administration was discovered that they were doing massive illegal eavesdropping, they created this new court, this Foreign Intelligence Surveillance Court and until the Bush administration, every president as far as I could see, had been following the law.

ABRAMS: Well this was—this is one of the quotes that‘s being cited from that “60 Minutes” report. This Canadian intelligence analyst Mike Frost telling Steve Kroft how an innocent civilian winds up in a terrorist database. This is under the Clinton administration.

A lady‘s son had been in a school play. Next morning she said to her friend, oh Danny really bombed last night. The computer spit that conversation out and an analyst listed that lady as a possible terrorist.

I mean if that‘s true, it sure sounds like they are listening to everybody.

BAMFORD: I have read a lot of Mike Frost material and I don‘t give a lot of it credibility, so I think I‘ll stick with my own analysis of the agency.

ABRAMS: So the bottom line being, though, that you know that report, and that is—again I think that is the one that is being cited most, is the “60 Minutes” report which suggested that back then the NSA was listening to everyone. You‘re saying it‘s just not credible?

BAMFORD: No. Listen, the way it works is NSA pulls all those communications from satellites. International communications coming off of communication satellites and filters it through this huge, basically a big net. But most of that goes through without being listened to or read, about probably 99 percent of it.

The few items that are picked out, actually more than a few, but those are the items that are actually the subject of warrants from the Foreign Intelligence Surveillance Court, so it‘s a very complex procedure how it‘s done.

ABRAMS: But just so we‘re clear…

(CROSSTALK)

BAMFORD: Believe me, if I had seen any illegality on the part of Clinton or Carter or anybody else, I certainly would have written about it.

ABRAMS: The ones they—just so we understand the logistics of it. So you‘re saying that the ones that they listen to are the ones that they have gotten a warrant to listen to. Meaning, they get all this information in, but that information is basically thrown away unless they have a warrant?

BAMFORD: That‘s right. It‘s just like a big fishing net with certain size holes there. And the only—virtually all of it goes through those holes except for the fish that are too big for those holes. So are the ones where they actually get the warrant for.

There‘s millions and millions and millions of communications coming and going from the United States every hour. And they can‘t possibly listen to all of that. So most of it goes through without ever—anybody ever reading the e-mails or listening to the phone calls. But the ones that are picked up…

ABRAMS: Right.

BAMFORD: … at least domestically are the ones that are the subject of the Foreign Intelligence Surveillance Court warrants.

ABRAMS: And that‘s different than what the administration is doing now?

BAMFORD: Yes. This is the first time since basically the ‘60‘s or early ‘70‘s when the Nixon administration illegally did a lot of domestic spying with the NSA and again, that was why they created the FISA Court. What the Bush administration is doing is flaunting the law. The law clearly says if you want to eavesdrop on U.S. citizens, you only have one choice. That choice is to go to the court and get a warrant or don‘t do it.

ABRAMS: We will continue to debate the law on this program. But James Bamford, thank you very much. We appreciate you coming on.

BAMFORD: My pleasure. Thank you.

I also want to say that Abrams is wasted on celebrity trial news. When he gets an opportunity to focus on serious issues he can be sharper than most of the other bobbleheads on cable television.

All the King’s Men

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Former Senator Tom Daschle writes in today’s WaPo,

In the face of mounting questions about news stories saying that President Bush approved a program to wiretap American citizens without getting warrants, the White House argues that Congress granted it authority for such surveillance in the 2001 legislation authorizing the use of force against al Qaeda. On Tuesday, Vice President Cheney said the president “was granted authority by the Congress to use all means necessary to take on the terrorists, and that’s what we’ve done.”

As Senate majority leader at the time, I helped negotiate that law with the White House counsel’s office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.

Now, was that so hard, Tom? Why couldn’t you have talked like that while you were still in the Senate?

I can see from WaPo‘s handy-dandy “Who’s Blogging” links that the spineless, potty-mouth cowards known as “Bush supporters” are arguing that the Senate authorized warrantless wiretaps when the Senate “all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided” the attacks of 9/11.

So, the word force includes ” warrantless surveillance.” I wouldn’t have known that, would you? I even looked it up in the dictionary. Nope, not there.

Reminds me of what Humpty Dumpty told Alice:

‘I don’t know what you mean by “glory,”‘ Alice said.

Humpty Dumpty smiled contemptuously. ‘Of course you don’t — till I tell you. I meant “there’s a nice knock-down argument for you!”‘

‘But “glory” doesn’t mean “a nice knock-down argument,”‘ Alice objected.

‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

‘The question is,’ said Alice, ‘whether you CAN make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master – – that’s all.’

So righties can fudge the meanings of words to change the meaning of legislation and cause the Senate to approve of something they hadn’t intended. There’s glory for you. By which I mean “righties are sniveling cowards who will destroy everything America ever stood for to save their own skins, and call it ‘patriotism.'”

The “Clinton Did It” Alabi

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In this Washington Times article, Charles Hunt claims “One of the most famous examples of warrantless searches in recent years was the investigation of CIA official Aldrich H. Ames, who ultimately pleaded guilty to spying for the former Soviet Union. That case was largely built upon secret searches of Ames’ home and office in 1993, conducted without federal warrants.”

Judd at Think Progress debunks the Hunt article here, but doesn’t mention Ames specifically.

Hunt provides no documentation that the search of Ames’s office and home were without warrants. But this document from the Senate Select Committee on Intelligence begins,

On February 21, 1994, agents from the Federal Bureau of Investigation (FBI) arrested a 52-year old employee of the Central Intelligence Agency (CIA), Aldrich Hazen Ames, outside his Arlington, Virginia residence, on charges of conspiracy to commit espionage on behalf of Russia and the former Soviet Union. According to the affidavit supporting the arrest warrant, these activities had begun in April 1985, and continued to the time of the arrest. Ames’s wife, Maria del Rosario Casas Ames, was arrested inside the residence on the same charges shortly after her husband was taken into custody. …

… The Senate Select Committee on Intelligence (hereinafter “the Committee”) received its initial briefing regarding the case on the day the arrests were publicly announced. The facts contained in the affidavit supporting the arrest and search warrants were summarized by representatives of the FBI.

Later in the document we learn —

Under applicable Attorney General guidelines, this meant that the FBI was able to seek authority under pertinent laws and Justice Department guidelines to employ a full array of investigative techniques against Ames. For instance, the Foreign Intelligence Surveillance Court issued orders authorizing electronic surveillance of Ames’s office and residence.

This is a long and sometimes vague document, and maybe I missed it, but I don’t see “warrantless searches” in there anywhere. I found other documents regarding Ames linked on this Department of Justice page, but I didn’t find mention of the searches in them.

I’m not sure who initiated the story that Ames’s house and office were searched without warrants, but it may have started with Republican attorney Victoria Toensing during a call-in to CNN’s Situation Room with Wolf Blitzer. Today a number of rightie commenters and bloggers repeat this story as gospel. So far, I have seen no documentation whatsoever. Maybe there is such documentation, but so far it has remained uncited. The claim that Clinton ordered warrantless physical searches of Ames’s house and office is just repeated on rightie sites as gospel truth.

Much of today’s confusion regarding FISA during the Clinton Administration stems from the fact that FISA regulations were changed after the Ames searches and arrests —

When Gorelick testified before the House Intelligence Committee in 1994 that the president had the “inherent authority to conduct warrantless physical searches,” FISA did not apply to physical searches for foreign intelligence purposes, as Media Matters for America has noted. A year later, Congress — with Clinton’s support — amended FISA to require court orders for physical searches. The Clinton administration thereafter never argued that any “inherent authority” pre-empted the new warrant requirements for physical searches under FISA.

The Bush administration, on the other hand, has argued that it had the authority to authorize the National Security Agency (NSA) to eavesdrop on domestic communications without warrants, despite FISA’s clear restrictions on warrantless electronic eavesdropping.

Toensing’s use of the Aldrich Ames case is similarly misleading. The joint CIA/FBI investigation of Ames, a CIA analyst ultimately convicted of espionage, also took place prior to the 1995 FISA amendment requiring warrants for physical searches. Therefore, when the Clinton administration ordered investigators to go “into Aldrich Ames’s house without a warrant,” they did not — as Toensing argued — “carry out their authority” to bypass the FISA requirements, because FISA did not cover such searches.

And, the SSCI document says that electronic searches complied with FISA. The Media Matters article linked above provides other documentation of compliance with FISA.

Of the physical searches, the only ones mentioned in the SSCI document are:

On June 25, 1993, the FBI conducted a search of Ames’s office at the CIA. Approximately 144 classified documents were located in his work area, most of which did not relate to his official duties. …

Do the feds need a search warrant to search other feds? I honestly don’t know.

…On September 15,1993, a search of Ames’s trash disclosed a torn note in Ames’s handwriting which appeared to relate to a clandestine meeting planned for Bogota, Colombia on October 1, 1993. …

… On October 6, 1993, a search of Ames’s trash turned up a typewriter or printer ribbon which contained two documents which Ames appeared to have prepared in 1992. Among other things, these documents discussed CIA personnel, access to classified information, and classified operational matters.

I believe I learned from Law & Order that you don’t need a warrant to search trash if it’s out on the curb to be picked up.

On October 9, 1993, FBI agents conducted a search of Ames’s residence in Arlington. Among other things, this search yielded (1) a typewriter ribbon which contained a note Ames had written to his KGB contact regarding a meeting in Caracas, Venezuela in October 1992; (2) a computer document which identified a mailbox at 37th and R Streets in Washington, D.C. as a signal site, and (3) a series of computer documents regarding Ames’s relationship with the KGB. These computer documents included information on clandestine communications, classified CIA operations, classified CIA human assets, and information regarding the payments previously made to Ames. …

… The searches of Ames’s office and residence conducted after the arrests yielded additional evidence of his relationship with the KGB and, since 1991, with its successor intelligence service, the SVR.

It may be the October 9 search that righties are claiming was conducted without a warrant, but it’s not clear from the SSCI document that there was no warrant. The document just says the FBI “was able to seek authority under pertinent laws and Justice Department guidelines to employ a full array of investigative techniques against Ames,” whatever that means.

By October 1993 the FBI had been watching Ames for a long time, and there was copious evidence he was up to something. So, surely, the FBI could have obtained a warrant. If it didn’t — far from a verified fact, IMO — I believe that was wrong.

I have noticed that righties of late like to argue that if Bill Clinton did so-and-so, then it’s OK if Bush does it. That argument doesn’t work for me — if it’s wrong, it’s wrong, no matter who does it — but it’s wonderfully persuasive to righties. Very odd.

Also: “Where’s the Outrage?“

Not Knowing When to Quit

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This evening on MSNBC I saw the “Clinton did it too” defense of Bush’s secret wiretapping knocked down by Andrea Mitchell, believe it or not, who is guest hosting Hardball, and by Alison Stewart, who is guest hosting Countdown.

Seriously. There were actual experts who patiently explained that presidents Clinton and Carter followed FISA regulations regarding wiretapping, which is way different from what Bush is doing. And for the most part these people were allowed to speak at length without being interrupted by a rightie goon. I was astonished.

This hasn’t stopped the VRWC echo chamber from pumping out the now utterly debunked lie that President Clinton believed he had an “inherent authority” to order warrantless wiretaps of American citizens. Today’s new twist is the “Gorelick Myth,” which Judd at Think Progress takes apart here. I assume the Faux News crew and the radio righties are going along with the program, so that people getting most of their news from O’Reilly, Limbaugh, et al. will never hear the debunking. And, of course, rightie bloggers are obediently falling into line.

And according to Atrios, people watching CNN this evening didn’t hear the debunking either.

This means we’re at Stage 3 of the Daou Dynamics of a Bush Scandal, and we’re rapidly moving into Stage 4.

For the next few days the Right will work hard to continually repeat their storyline, or narrative, or excuse, or whatever you want to call it, over and over, often enough that most people will hear it and believe it to be true. The fact that it’s a flat-out lie will not, of course, discourage them.

However, for the most part, tonight two MSNBC programs got it right. Better than nothing.

Powers and Presidents

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Kevin Drum makes a good point here about presidential war powers. There is general agreement (accept maybe among hard-core libertarians) that in times of war and extreme emergency, presidents can take on expanded powers, à la Lincoln and FDR.

But the next question is, what is war? “War powers” have always been considered extraordinary, to be used only in case of emergency. But if you count “hot wars,” the U.S. has been at war for about 20 of the past 65 years. And if you count the Cold War, then we’ve been at war for 50 of the past 65 years. If we consider ourselves to be in a state of war nearly all the time, the extraordinary becomes ordinary. If we assume the president is allowed expanded powers for 50 out of 65 years, the checks and balances of the Constitution are effectively nullified.

Kevin writes,

Somehow we need to come to grips with this. There’s “wartime” and then there’s “wartime,” and not all armed conflicts vest the president with emergency powers. George Bush may have the best intentions in the world — and in this case he probably did have the best intentions in the world — but that still doesn’t mean he has the kind of plenary power Abraham Lincoln and Franklin Roosevelt exercised during their wars.

During a genuine emergency, the president’s powers are at their most expansive. The rest of the time they’re more restricted, whether he considers himself a wartime president or not. Right now, if George Bush needs or wants greater authority than he currently has, he should ask Congress to give it to him — after all, they approve black programs all the time and are fully capable of holding closed hearings to debate sensitive national security issues. It’s worth remembering that “regulation of the land and naval forces” is a power the constitution gives to Congress, and both Congress and the president ought to start taking that a little more seriously.

We need to be clear about whether global terrorism is an extraordinary threat that can be defeated, or whether it’s part of a new phase of human history in which war is not between nations but between sects. I strongly suspect the latter is true, and that the threat of global terrorism will hang over civilizations for generations. Even if the Islamic jihadists were to surrender their fight in our lifetime — highly unlikely, IMO — the world is full of other groups with different agendas who might very well resort to the same tactics.

Horrible though they were, “declared” wars like World Wars I and II had a certain clarity to them. The wars had a sharply defined beginning and end –e.g., the World War I cease fire on the eleventh hour of the eleventh day of the eleventh month. Everybody understood who their enemies were. Soldiers wore uniforms and were (supposed to) operate within certain rules.

But the “war on terror” is so hazily defined that Americans disagree among themselves what it is, or exactly who our enemies are. Regarding Iraq (which may or may not be part of the war on terror, depending on who’s talking), the President only recently acknowledged that the people we are fighting aren’t all “terrorists,” even though he doesn’t seem to be able to get the word “insurgency” out of his mouth. Yet others tell us the al Qaeda affiliates make up less than 10 percent of the people we are fighting in Iraq.

I think the Iraq War is less about fighting al Qaeda, or reshaping the Middle East, or even oil, than it is about the Right’s collective emotional need for a conventional enemy. Iraq is a proxy war standing in for the old-fashioned “glorious little war” the righties desire. But glorious little wars no longer apply to geopolitical reality. Although certainly military actions will be part of the effort to combat terrorism, talk of “fronts” — as in “central front of the war on terror” — seems to me as anachronistic as mounted saber charges.

And the righties seem to think we are in a state of emergency, and have been continually since 9/11. If you’ve ever worked for someone who can’t set priorities, you may know what I’m talking about — when everything’s a priority, nothing is a priority. And when we’re always in a state of emergency, we’re never in a state of emergency. As a nation we need to take a deep breath and understand that we’ve got a lot of long, hard, and mostly not glorious work ahead of us to face the challenge of global terrorism. But we’ve got to understand this is how the world is going to be for the foreseeable future, probably the rest of our lives. And that means fighting terrorism is not an “emergency.” It’s the norm. And all constitutional restrictions apply.

Tainted

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Carol D. Leonnig and Dafna Linzer write in today’s Washington Post that a judge on the FISA court has resigned.

A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush’s secret authorization of a domestic spying program, according to two sources.

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court’s work.

According to colleagues, Robertson was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants.

“They just don’t know if the product of wiretaps were used for FISA warrants — to kind of cleanse the information,” said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. “What I’ve heard some of the judges say is they feel they’ve participated in a Potemkin court.”

Meanwhile, James Risen and Eric Lichtblau of the New York Times report that the NSA program did too include surveillance of purely domestic communications.

A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.

The officials say the National Security Agency’s interception of a small number of communications between people within the United States was apparently accidental, and was caused by technical glitches at the National Security Agency in determining whether a communication was in fact “international.”

Telecommunications experts say the issue points up troubling logistical questions about the program. At a time when communications networks are increasingly globalized, it is sometimes difficult even for the N.S.A. to determine whether someone is inside or outside the United States when making a cellphone call or sending an e-mail message. As a result, people that the security agency may think are outside the United States are actually on American soil.

The blogosphere is, of course, seeing two different realities. The righties have made up their minds that presidents Clinton and Carter also ordered warrantless searches, which (1) isn’t true, and (2) wouldn’t make it right, even if it were true. But you know that won’t make any difference to cowards. There are terrorists out there! Quick, throw the Bill of Rights overboard!

[Update: See more debunking of “warrantless” searches by Clinton and Carter by Georgia10 at Kos.]

Just call them cowards. That’s what they are. I was in lower Manhattan on 9/11 and saw the worst that terrorism can do, and I am not crawling around under rocks screaming that we must compromise everything America stands for to keep us safe. And I’ve never considered myself especially brave; just put me in a dentist’s chair, and I’ll confess to anything. But as I wrote yesterday, righties are so terrified of the jihadist boogeymen they’ll make excuses for anything Big Brother does, in the opinion — unjustified, I say — that Big Brother is keeping them safe. And they call themselves patriots. It’s too pathetic.

And the White House has yet to demonstrate that taking the path to tyranny has made us any safer. For example, Josh Meyer of the Los Angeles Times writes that at least one of Bush’s arguments is bogus.

In confirming the existence of a top-secret domestic spying program, President Bush offered one case as proof that authorities desperately needed the eavesdropping ability in order to plug a hole in the counter-terrorism firewall that had allowed the Sept. 11 plot to go undetected.

In his radio address Saturday, Bush said two of the hijackers who helped fly a jet into the Pentagon — Nawaf Alhazmi and Khalid Almihdhar — had communicated with suspected Al Qaeda members overseas while they were living in the U.S.

“But we didn’t know they were here until it was too late,” Bush said. “The authorization I gave the National Security Agency after Sept. 11 helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities.”

But some current and former high-ranking U.S. counter-terrorism officials say that the still-classified details of the case undermine the president’s rationale for the recently disclosed domestic spying program.

Indeed, a 2002 inquiry into the case by the House and Senate intelligence committees blamed interagency communication breakdowns — not shortcomings of the Foreign Intelligence Surveillance Act or any other intelligence-gathering guidelines.

See also “Bush’s Bogus Analogy” by Daniel Benjamin in Slate.

And of course it didn’t help that the President and National Security Adviser were told that “Bin Laden determined to strike in US” and made no attempt to shake trees, rattle cages or otherwise follow up.

But I digress.

Douglas Jehl writes in today’s New York Times that

The limited oral briefings provided by the White House to a handful of lawmakers about the domestic eavesdropping program may not have fulfilled a legal requirement under the National Security Act that calls for such reports to be in written form, Congressional officials from both parties said on Tuesday.

The White House has refused to describe the timing and scope of the briefings, except to say that there were more than a dozen. But among the small group of current and former Congressional leaders who have attended the high-level gatherings conducted by Vice President Dick Cheney at the White House, several have described them as sessions in which aides were barred and note-taking was prohibited.

Dick is warning senators that investigating the NSA program could be bad for their careers. Ron Hutcheson and James Kuhnhenn write for Knight Ridder,

Senators of both parties on Tuesday demanded a congressional investigation into President Bush’s domestic-surveillance program, even as Vice President Dick Cheney warned that the president’s critics could face political repercussions. …

… Cheney forcefully defended the previously secret spying program – disclosed last Friday by The New York Times – and said that Bush’s critics could pay a political price.

But at the moment the question is not whether there will be an investigation — there will be an investigation — but how the investigation will be conducted.

Five members of the Senate Intelligence Committee – two Republicans and three Democrats – called for a joint investigation by their panel and the Senate’s Judiciary Committee, saying revelations that Bush authorized spying on U.S. residents without court approval “require immediate inquiry and action by the Senate.”

Senate Majority Leader Bill Frist, R-Tenn., said he was discussing the possibility of hearings with various committee chairmen, but he didn’t pledge to hold any. Democratic leader Harry Reid of Nevada said he preferred for each committee to conduct independent inquiries.

David Ignatius at WaPo is encouraged by a revolt of the professionals.

The national security structure that the Bush administration created after Sept. 11, 2001, began to crumble this month because of a bipartisan revolt on Capitol Hill. Newly emboldened legislators forced the administration to accept new rules for the interrogation of prisoners, delayed renewal of the Patriot Act and demanded an investigation of warrantless wiretapping by the National Security Agency.

President Bush has bristled at these challenges to his authority over what has amounted to an undeclared national state of emergency. But the intelligence professionals who have daily responsibility for waging the war against terrorism don’t seem particularly surprised or unhappy to see the emergency structure in trouble. They want clear rules and public support that will allow them to do their jobs effectively over the long haul, without getting second-guessed or jerked around by politicians. Basically, they don’t want to be left holding the bag — which this nation has too often done with its professional military and intelligence officers.

The President needs to do what he often talks about, which is provide strong leadership, says Ignatius. The way Bush works to get his way isn’t leadership; it’s bullying. And when bullying doesn’t work, he lies, and bypasses Congress and the courts and the Constitution and anyone else he doesn’t want to bother about actually leading. Real leadership is haaaarrd work, you know.

See also Bruce Ackerman,” The Secrets They Keep Safe” in Slate.