Category Archives: Congress

Not Too Swift

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Via Glenn Greenwald: Bryan Bender writes in today’s Boston Globe that, um, the program to track terrorists through financial transactions, was not exactly a secret secret.

News reports disclosing the Bush administration’s use of a special bank surveillance program to track terrorist financing spurred outrage in the White House and on Capitol Hill, but some specialists pointed out yesterday that the government itself has publicly discussed its stepped-up efforts to monitor terrorist finances since the Sept. 11, 2001, attacks….

…a search of public records — government documents posted on the Internet, congressional testimony, guidelines for bank examiners, and even an executive order President Bush signed in September 2001 — describe how US authorities have openly sought new tools to track terrorist financing since 2001. That includes getting access to information about terrorist-linked wire transfers and other transactions, including those that travel through SWIFT.

“There have been public references to SWIFT before,” said Roger Cressey, a senior White House counterterrorism official until 2003. “The White House is overreaching when they say [The New York Times committed] a crime against the war on terror. It has been in the public domain before.”

Victor D. Comras , a former US diplomat who oversaw efforts at the United Nations to improve international measures to combat terror financing, said it was common knowledge that worldwide financial transactions were being closely monitored for links to terrorists. “A lot of people were aware that this was going on,” said Comras, one of a half-dozen financial experts UN Secretary General Kofi Annan recruited for the task.

“Unless they were pretty dumb, they had to assume” their transactions were being monitored, Comras said of terrorist groups. “We have spent the last four years bragging how effective we have been in tracking terrorist financing.”

Indeed, a report that Comras co-authored in 2002 for the UN Security Council specifically mentioned SWIFT as a source of financial information that the United States had tapped into. The system, which handles trillions of dollars in worldwide transactions each day, serves as a main hub for banks and other financial institutions that move money around the world. According to The New York Times, SWIFT executives agreed to give the Treasury Department and the CIA broad access to its database.

I can hear the righties now — the UN Security Council are traitors, too.

Dan Froomkin tells more:

SWIFT, the Society for Worldwide Interbank Financial Telecommunication, is the international banking cooperative that quietly allowed the Treasury Department and the CIA to examine hundreds of thousands of private banking records from around the world.

But the existence of SWIFT itself has not exactly been a secret. Certainly not to anyone who had an Internet connection.

SWIFT has a Web site, at swift.com .

It’s a very informative Web site. For instance, this page describes how “SWIFT has a history of cooperating in good faith with authorities such as central banks, treasury departments, law enforcement agencies and appropriate international organisations, such as the Financial Action Task Force (FATF), in their efforts to combat abuse of the financial system for illegal activities.”

(And yes, FATF has its own Web site, too.)

Yet yesterday press secretary Tony Snow said he was “absolutely sure” terrorists didn’t know about SWIFT. Sure.

As explained by Ron Suskind on Monday’s Hardball, some time back terrorist organizations deducted that their financial transactions were giving them away.

MATTHEWS: Well let me just tell you what you said. “Eventually not surprisingly,” and we‘re talking about electronic transfer surveillance, “our opponents figured it out. It was a matter really of deduction. Enough people got caught and a view of which activities had in common provides clues as to how they may have been identified and apprehended. We were surprised it took so long,” said one intelligence official.

So in other words, the bad guys figured out how we were catching them.

SUSKIND: Right, it‘s a process of deduction. After a while, you catch enough of them, they‘re not idiots. They say, “Well, we can‘t do the things we were doing.” They‘re not leaving electronic trails like they were.

Matthews was quoting from page 279 of Suskind’s new book, The One Percent Solution. If you start reading on the previous page, you see that Suskind was writing about all manner of “electronically traceable activities — from satellite phone calls to bank account withdrawals.”

And that’s largely how we managed, from early 2002 to late 2003, to know a great deal about al Qaeda, get a sense of who was connected to whom, and capture quite a few suspects, most of whom have vanished into overseas U.S. prisons or similar, maybe worse destinations inside Yemen, Pakistan, Saudi Arabia, Jordan, or Egypt. …

Eventually, and not surprisingly, our opponents figured it out. It was a matter, really, of deduction. Enough people get caught and a view of which activities they had in common provides clues as to how they have have been identified and apprehended.

“We were surprised it took them so long,” said one senior intelligence official. …

…The al Qaeda playbook, employed by what was left of the network, its affiliates and imitators, started to stress the necessity of using couriers to carry cash and hand-delivered letters. This slows the pace of operations, if not necessarily their scale, and that was, indeed, a victory. …

Incarnations of terror cells, meanwhile, were taking shape. Stealthy, diffuse, and largely unconnected to a centralized network, these were self-activated, often self-funded, and ready to download key operational guidance from an explosion of jihadist Web sites. There was no money to trace; no calls up and down the chain of command they needed to make …

There’s been some speculation about why the White House doesn’t seem interested in going after who in government leaked the program to the New York Times. Maybe it’s because there was no leaker.

Yet the pile-on continues. The Hill reports that House Republicans leaders are expected to introduce a resolution condemning the New York Times for “leaking” information about the SWIFT program. Howie Kurtz concedes —

President Bush calls the conduct of the New York Times “disgraceful.” Vice President Cheney objects to the paper having won a Pulitzer Prize. A Republican congressman wants the Times prosecuted. National Review says its press credentials should be yanked. Radio commentator Tammy Bruce likens the paper to Julius and Ethel Rosenberg.

Even by modern standards of media-bashing, the volume of vitriol being heaped upon the editors on Manhattan’s West 43rd Street is remarkable — especially considering that the Los Angeles Times and Wall Street Journal also published accounts Friday of a secret administration program to monitor the financial transactions of terror suspects. So, in its later editions, did The Washington Post.

That’s because this isn’t about national security. It’s about politics. Republicans are out to smear everybody who stands still long enough to get smeared in order to deflect public dissatisfaction away from themselves. And if GOP party operatives plus the usual useful idiots like Tammy Bruce keep repeating the story that media is the enemy, that will make future propaganda efforts sooo much easier. Although it’s not as if media were getting in the way of the propaganda catapults up to now.

War in Washington

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When I first heard about the FBI raid on Rep. William J. Jefferson’s office it didn’t occur to me there might be a constitutional issue involved. But now — surprise! — House Speaker Dennis Hastert told President Bush yesterday that he thought the raid was unconstitutional, according to Patrick O’Connor at The Hill. And House Majority Leader Boehner wasn’t happy, either.

Calling the Saturday-night raid an “invasion of the legislative branch,” House Majority Leader John Boehner (R-Ohio) predicted the case would eventually be resolved in the Supreme Court and hinted that Congress would take further action. The majority leader said Hastert would take the lead on the issue because he is the chief constitutional officer in the House.

“I am sure there will be a lot more said about this,” Boehner said.

The problem is that the FBI raid on Jefferson’s office amounted to a raid by the executive branch on the legislative branch. An editorial in today’s New York Times explains the constitutional issue:

The court-authorized search of the Congressional office of Representative William Jefferson by federal agents was as unprecedented in the 217-year history of Congress as it was alarming to lawmakers of both parties. Critics instantly suggested that Congressman Jefferson, the Louisiana Democrat suspected of accepting hundreds of thousands of dollars in bribes, should have been spared the raid under some broad interpretation of the Constitution’s separation of executive and legislative powers.

Fuming lawmakers claim that the Constitution’s Speech and Debate Clause — which protects a lawmaker from politically motivated criminal harassment in the course of official business — should extend to making Mr. Jefferson’s office inviolable. …

…It’s hard to remember when the issue of separations of powers has arisen under such an explosive combination of political circumstances: an all-night search on a quiet weekend during an election-year session that has already been roiled by separate corruption investigations.

The “speech and debate” clause is in Article I, section 6, first paragraph:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

(I believe this is the same clause cited on behalf of Rep. Patrick Kennedy when he crashed his car into a traffic barrier a few days ago. It was argued that Kennedy couldn’t be arrested, and he wasn’t. However, the accident occurred at 3 a.m., and Congress was not in session at the time.)

The Findlaw annotations for this clause are here. And that takes us to the SCOTUS decision in United States v. Johnson, 383 U.S. 169 (1966), in which Justice Harlan wrote,

The language of that Article, of which the present clause is only a slight modification, is in turn almost identical to the English Bill of Rights of 1689: [383 U.S. 169, 178] “That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.” 1 W. & M., Sess. 2, c. 2.

This formulation of 1689 was the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. 8 Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature. See, e. g., Story, Commentaries on the Constitution 866; II The Works of James Wilson 37-38 (Andrews ed. 1896). In the American governmental structure the clause serves the additional function of reinforcing the separation of powers so deliberately established by the Founders. As Madison noted in Federalist No. 48:

    “It is agreed on all sides, that the powers properly belonging to one of the departments, ought not to be directly and completely administered by either of the other departments. It is equally evident, that neither of them ought to possess directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating therefore in theory, the several classes of power, as they may in their nature be legislative, [383 U.S. 169, 179] executive, or judiciary; the next and most difficult task, is to provide some practical security for each against the invasion of the others. What this security ought to be, is the great problem to be solved.” (Cooke ed.)

The legislative privilege, protecting against possible prosecution by an unfriendly executive and conviction by a hostile judiciary, is one manifestation of the “practical security” for ensuring the independence of the legislature.

The Times editorial says that invoking the Speech and Debate clause in the Jefferson raid is a stretch, and maybe it is. Yesterday Jeralyn Merritt wrote,

In Rep. Jefferson’s case, however, “separation of powers” just won’t cut it if the affidavit for the search warrant shows probable cause to believe that evidence would be found in his office. The same would apply to the President, the Vice President, their staffs, and the judiciary: If there is probable cause linking the place to be searched with an alleged crime, the search has the imprimatur of the law, is presumptively valid under the Fourth Amendment, and that is all that will be required to defeat a separation of powers claim. His private papers concerning his thoughts and votes are not off limits to a search warrant if the allegation in the affidavit is that the vote was paid for. That is bribery of a Member of Congress, and no Congressman is immune from that. Ask former Rep. Duke Cunningham.

I don’t think anyone is saying that Rep. Jefferson should be immune from the criminal justice system altogether, though. And I do not doubt the FBI had plenty of probable cause. The issue, seems to me, is whether the “speech and debate” clause creates a higher burden than standard probable cause for obtaining a search warrant for a congressman’s office. And if so, did the FBI’s warrant meet that burden? I hope one of our other fine blogosphere legal experts, like Scott Lemieux or Glenn Greenwald, will help us out.

It does seem that the raid on Jefferson’s office after months of leaving, for example, Tom DeLay and Randy Cunningham alone, smacks of political exploitation. First, as the Times editorial says, the Abramoff and Cunningham cases “suggest a pervasive, systemic form of corruption that does not seem to be at play in the Jefferson inquiry.” The FBI says it has a videotape of Jefferson accepting a $100,000 bribe, and that they found $90,000 of that bribe in his freezer. Seems to me they already had plenty of evidence for a prosecution. Could it be that the White House ordered the raid because the Bushies wanted Jefferson’s alleged corruption to get big headlines? Dumb question, huh?

According to CNN,

FBI agents searched Jefferson’s office in the Rayburn House Office Building from Saturday evening to early Sunday afternoon, bureau spokeswoman Debra Weierman said. One government official told CNN the search marked the first time FBI agents have searched a lawmaker’s Capitol Hill office.

Weierman would not comment on what agents removed from Jefferson’s office. But in the papers released Sunday, investigators stated they were searching for faxes, notes, telephone records and other forms of communication, as well as ledgers and computer files related to meetings and travel.

In an earlier statement, [Jefferson’s lawyer Robert] Trout called the search of Jefferson’s office “outrageous” and said it was not necessary.

“There were no exigent circumstances necessitating this action. The government knew that the documents were being appropriately preserved while proper procedures were being followed. We are dismayed by this action — the documents weren’t going anywhere and the prosecutors knew it,” he said.

However, a redacted copy of the search warrant and affidavit stated that federal investigators were unable to obtain the records relevant to the investigation inside Jefferson’s office and, “left with no other method,” proceeded with the search.

I’m no lawyer, but it seems to me that if this goes to the SCOTUS the FBI will have to argue that there was something Jefferson was hiding in his office that they really, really needed for an indictment and prosecution, and that they had exhausted other methods of obtaining this something. Had Rep. Jefferson refused to honor a subpoena, for example? [Update: Jefferson had refused to comply with a subpoena, according to the Associated Press.] I don’t know if the “speech and debate” clause renders a congressman’s office inviolable, but I would think the clause places a burden on the executive branch to show that the raid was not frivolous or politically motivated.

Carl Hulse wrote in yesterday’s New York Times that the raid seems to be part of a pattern:

Lawmakers and outside analysts said that while the execution of a warrant on a Congressional office might be surprising — this appears to be the first time it has happened — it fit the Bush administration’s pattern of asserting broad executive authority, sometimes at the expense of the legislative and judicial branches.

Pursuing a course advocated by Vice President Dick Cheney, the administration has sought to establish primacy on domestic and foreign policy, not infrequently keeping much of Congress out of the loop unless forced to consult.

“It is consistent with a unilateral approach to the use of authority in Washington, D.C.,” Philip J. Cooper, a professor at Portland State University who has studied the administration’s approach to executive power, said of the search.

“This administration,” Dr. Cooper said, “has very systematically and from the beginning acted in a way to interpret its executive powers as broadly as possible and to interpret the power of Congress as narrowly as possible as compared to the executive.”

But Republicans in Congress have been pretty much OK with being stomped on by the executive branch. Why are they fighting back now? Laura Rozen writes:

In a city that has become so hyper, Beria-like politicized, House GOP leaders have overwhelmingly sided with a House Democrat looking at face value pretty vulnerable to corruption charges in protesting the unprecedented FBI weekend raid on Rep. Jefferson’s office as a sign of what lawmakers claim is executive overreach. But the strange thing is, lawmakers would ostensibly have total oversight responsibility for the FBI, through the power of the purse, the power of writing legislation, subpoena power, confirming nominees, etc. If they’re concerned about alleged FBI overreach, they can haul in to testify not just FBI director Mueller, but his boss Alberto Gonzales. So what is really going on here? Perhaps a shot across the bow? Or is it panic?

But I can’t believe Bush’s boy Alberto would allow the FBI to raid Republican offices looking for incriminating evidence. Not when they are so desperate to win elections this November and keep Congress in Republican hands.

The Mother of all Budget Deficits

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Ron Brownstein writes at the Los Angeles Times that the biggest cause of our whopping budget deficit is not congressional pork but Bush’s tax cuts.

Maybe the most valuable earmark reform Congress could consider would be to offer more pork-barrel projects to legislators who vote against unaffordable tax cuts.

OK, that’s slightly facetious. Excessive earmarks are a real problem. But they don’t pose nearly as great a threat to the federal government’s finances as the massive tax cuts President Bush and Congress continue to enact. …

… As a strategy for reducing Washington’s huge budget deficit, fighting earmarks while promoting tax cuts is incoherent. It ignores the biggest near-term threat to the budget to concentrate on a second-tier problem. It’s like a bank security guard arresting a pickpocket in the lobby while a gang of thieves loots the vault below.

Actually, that might understate the problem. The emphasis on earmarks, unless attached to a broader program, could set back action against the real threats to the federal budget: in the short term, the cost of Bush’s tax cuts; in the long term, the rise in entitlement spending for the elderly.

Not being a whiz on any topic involving numbers and money, I looked up earmarks. According to a document on the Senate Budget Committee web site,

An earmark refers to funds set aside within an account for a specified purpose. Sometimes earmark refers to any congressional set-aside for a specified program, project, activity, institution, or location. At other times, the term more narrowly refers to set-asides for individual projects, locations, or institutions. For example, an appropriations bill including $100 million for a construction account may set aside $10 million of the construction funds for a particular project. In addition to setting aside funds, the earmark might also provide spending floors by stating that not less than $10 million must be used for the specified project.

Back to Ron Brownstein:

The focus on earmarks “throws the public off,” says Robert Bixby, executive director of the Concord Coalition, a nonpartisan fiscal watchdog group. “It distorts the nature of the problem. It is hard to get people focused on the big policy choices when they hear so much about these earmarks that they think that is the problem.”

Individual legislators slip earmarks into budgets to pay back their campaign contributors and to impress voters back home through projects like the famous Alaskan “bridge to nowhere.” A group called Citizens Against Government Waste calculates that in 1994, the last year Democrats controlled Congress, Congress approved $7.8 billion in earmarks. Under Republicans that number has risen. This year’s earmarks totaled $29 billion.

Not all earmarks are wasteful, Brownstein writes, but even if they were, “earmarks represent little more than a rounding error compared to Bush’s tax cuts or the long-term cost of entitlements.”

The Tax Policy Center, Brownstein says,

… calculated that extending all of Bush’s first-term tax cuts and adjusting the alternative minimum tax to blunt its impact on the middle class would cost about $300 billion a year over the next decade.

That means the cost of Bush’s tax agenda exceeds the cost of all earmarks, even under the most expansive definition, by about 10 to 1. The cost of Bush’s tax agenda in one year alone will exceed the total spent on earmarks, by any definition, in the past decade.

Yet Republican politicians who yell and scream about pork cheerfully support the irresponsible tax cuts. That may be the real purpose of the pork — it gives them something beside tax cuts to blame for the deficit. Crusading for earmark reform, Brownstein says, “allows politicians to suggest they are seriously confronting the deficit while supporting unaffordable tax cuts that deepen the deficit.”

Over at BOP News, Hale Stewart blogs mightily against the insanity of the Bush tax cuts. See, for example, “Republicans Give Millionaires $42,000 Tax Break” — “People who make $1 million or more in annual income get a $41,977 tax break, while people who make $50,000 — 74,999 get a whopping $110 break and $403. Wow. Color me impressed.”

Republicans still say that tax cuts, especially tax cuts for the well-to-do investor class, are growing the economy out of the deficit. To this Hale says,

First, the Republican completely ignore the 2001 tax cuts. They simply forget them. Why? Because nothing really important happened after them – the economy didn’t turn-around in a big way. Republicans also forget that interest rates were historically low during this expansion. Real interest rates – interest rates minus inflation – were negative for at least a year: lower interest rates to those levels and everyone borrows money to spend. In fact, the relationship between interest rates and GDP growth was long established as economic fact long-before the “tax cuts pay for themselves” canard became part of the Republican lexicon. The relationship is simple: lower rates, grow the economy; increase rates, slow the economy. It’s that simple.

So, the Republicans lie to get tax cuts for their big contributors. Wow – there’s something new.

In “They’re NOT Tax Cuts; They’re Tax DEFERRALS, Hale writes,

The Republican Congress recently passed an extension of Bush’s tax cut package. Here’s something the Republicans forget to tell everybody. These aren’t tax cuts. Instead they are tax deferments. Eventually, someone will have to pay for these cuts. As the Center on Budget and Policy Priorities demonstrates, lower income taxpayers will suffer the most.

First, here is a brief summary of the Republican Congress’ “fiscal responsibility.” First, they have cut taxes twice – in 2001 and 2003. The Republicans want everyone to forget about 2001 because nothing happened after those tax cuts – job growth didn’t increase, GDP growth was lackluster and tax revenues decreased for two straight years (indicating tax cuts don’t pay for themselves). In fact, tax revenue at the end of 2005 was still 6.7% below the level of tax revenue from individuals in 2001.

At the same time, the Republican’s increased discretionary spending from $649 billion to $967 billion. This created a gap between government revenues and expenditures which was filled by a 43% in government debt outstanding from $5.8 trillion to $8.3 trillion. In other words, the “fiscally responsible” party whipped out the national credit card to pay for their tax cuts, passing the cost onto the next generation (clearly violating their personal responsibility motto).

The links in Hale’s post lead to some really interesting tables. See also “The Ultimate Burden of the Tax Cuts” from the Center on Budget and Policy Priorities.

Related links: “Bankrupted by Voodoo Economics” by Jonathan Chait; “Don’t Feed the Beast” by Sebastian Mallaby and Mahablog, “The Beast That Won’t Starve.”

The Beast That Won’t Starve

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Sebastian Mallaby has questions; I have answers.

In today’s Washington Post, Mallaby points to two foundational rightie myths: (1) Tax cuts pay for themselves; and (2) Cutting taxes forces the government to cut spending. Of the first, he says, “It’s been a long time since honest believers argued that tax cuts pay for themselves.” I’m glad Mallaby added that qualifier honest, as it saves me the trouble of ranting about what planet he lives on.

Of the second, Mallaby cites a study conducted by William Niskanen, an economist who worked in the Reagan White House and now chairs the Cato Institute.

Niskanen has crunched the numbers between 1981 and 2005, testing for a relationship between tax cuts and government spending, and controlling for levels of unemployment, since these affect spending and taxes independently. Niskanen’s result punctures his own party’s dogma. Tax cuts are associated with increases in government spending. The best strategy for forcing cuts in government is actually to raise taxes.

(Mallaby doesn’t say if the study breaks down taxing and spending behavior by party. I wandered over to the Cato Institute but couldn’t find the Niskanen study online. I did, however, find a cool “white paper” called “Power Surge: The Constitutional Record of George W. Bush” that looks like a good read, but off topic for this post. You can read more about the Niskanen study in the June issue of Atlantic Monthly. Or, rather, I can read more since I’m a subscriber. Sometimes there are subscription firewalls at Atlantic Monthly, so good luck reading the article.)

Mallaby has two questions. His first question is, why would this be true? Niskanen and Mallaby speculate that cutting taxes makes legislators feel that they’ve done something to make government cheaper, so buying stuff with government money seems like a bargain. It’s like finding tube socks on sale; tube socks may not have been on your shopping list but you are compelled to toss a few into the cart because they’re such a good buy. But if you don’t exercise some restraint you might end up with a garage full of tube socks and not enough money to pay the mortgage.

Is he saying that legislators are stupid? Because that seems like, y’know, a real stupid way to run a government. Stupidity would explain a lot about Congress, certainly. But it also seems like self-deception. It’s like ordering a diet soft drink with the super-size burger and fries, or sticking to the meal plan all day long and then rewarding yourself with a big piece of cheesecake. You’re not being honest with yourself about how many calories you’re really consuming. (This is an example I can relate to, and I don’t think I am stupid. Righties will, of course, disagree.) Or maybe it’s like the alcoholic who persuades himself that just one little drink won’t matter. Or a shop-a-holic with a new credit card.

An editorial in today’s New York Times provides an example of self-deceptive spending pathology, and not just in Congress.

President Bush is trying to score unearned points for fiscal rectitude by railing against the Senate’s outsize $109 billion supplemental spending package, which includes money for the wars in Iraq and Afghanistan as well as hurricane relief. But the real scandal is Mr. Bush’s own preference for financing much of the cost of the Iraq war outside the normal budget process. That is convenient for the administration, which does not have to count the money when it is pretending to balance the budget. But Iraq is not some kind of unexpected emergency, like Hurricane Katrina. It is a highly predictable cost, now amounting to about $100 billion a year, or just under 20 percent of total military spending.

Moving the war’s financing off budget is no mere technical distinction. For one thing, it subjects the military’s spending requests to less careful Congressional committee scrutiny than they would receive during the usual budget process. More important, this fiscal sleight of hand makes it that much easier for the Pentagon to duck the hard choices it desperately needs to be making between optional and costly futuristic weapons and pressing real-world needs.

Entire libraries could be filled by the commentaries on Bush v. reality. I’m not going to add any more to that volume of literature today. I’m just saying that we seem to be electing people to Congress who exhibit dissociative thinking patterns. Maybe we should screen candidates with personality tests.

Back to Mallaby and the second question:

But the really interesting question isn’t why the starve-the-beast theory is 180 degrees wrong. It’s how Republicans will react to this finding.

Oh, that’s easy. They’ll ignore it. And if forced to acknowledge it, righties will just trot out their universal, sure-fire, one-size-fits-all rebuttal to challenges — Niskanen must be a liberal. Therefore, what Niskanen says is self-evidently false.

Congressmen Arrested

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This just happened today … Jim Doyle of the San Francisco Chronicle reports,

Five members of Congress, including Rep. Tom Lantos (D-San Mateo) were arrested today when they blocked the front entrance at the Embassy of Sudan in Washington, D.C. Their protest and civil disobedience was designed to embarrass the military dictatorship’s ongoing genocide of its non-Arab citizens.

All told, 11 people were arrested outside the Sudanese embassy on Massachusetts Avenue, including six activists as well as representatives Sheila Jackson Lee (D-Houston), Jim McGovern (D-Worcester, Mass.), Jim Moran (D-Virginia) and John Olver (D-Massachusetts). They were held in a jail cell for about 45 minutes and then released.

Good for them! I boldfaced the names in case you want to email and thank them.

Lantos, 78, was first elected to Congress in 1981. Two years later, he founded the Congressional Human Rights Caucus. As the only Holocaust survivor ever to serve in Congress, he has pressed the Bush administration to take steps to deter the state-sanctioned murder and rape of hundreds of thousands of people in Sudan’s Darfur region.

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.

Democrats

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Today’s headlines — “Democrats Beat Quick Retreat on Call to Censure President“; “Feingold Draws Little Support for Censure“; “Democratic leaders shy away from censure plan” — tell the familiar story of one brave Dem sticking his neck out — for truth, justice, and the American Way — followed by the rest of the party running for the bomb shelters.

ReddHedd at firedoglake (which is having technical problems today, but it’s on this archive page somewhere) quoted this quote from Donna Brazile in today’s Roll Call (Subscription required):

The message from the left-leaning blogosphere is clear: Democrats should understand the real issue. The point is not censure or impeachment; it is Congress’s lack of oversight and its failure to hold anyone accountable for major mistakes or missteps. And especially, it’s about clearly misleading the American public. From faulty pre-war intelligence to the negligent response to Hurricane Katrina and the unjustified cost for Medicare prescription drug benefits, there has been no meaningful oversight by the GOP-controlled Congress. It is doubtful whether they would be willing to hear evidence against the president. While the Feingold resolution is not going anywhere given the full Republican control of Washington, D.C., a change in leadership in the fall would make this a ripe item for conversation and action in 2007 and beyond…. Oversight is a fundamental responsibility of Congress, which until the Republicans took over was a coequal branch of government. It’s long past time for the Republican Congress — and in particular the House and Senate Intelligence committees — to stop protecting the administration and start doing more to protect the American people. The 2006 political campaign season, which is under way across America, will truly come down to a test of wills. If my party’s leaders, whom I admire and respect, cannot figure out three things this electoral season that the GOP will use as wedge issues to distract and divide — Iraq, the war on terror and national security, and cultural issues like abortion and same-sex marriage — then my party finally will have earned its minority status.

A few days ago a commenter to Mahablog said, in effect, that reading about the awfulness of the Bush Administration is entertaining, but when are you going to do something to get rid of him? Well, here’s something we can do. We can support Russ Feingold by sending him our thanks. We can let our Democratic senators know we expect them to support Russ Feingold. We can send our senators the Donna Brazile quote by fax and email and carrier pigeon. We can promise them we have long memories.

And while you’re at it, help send Joe Lieberman into retirement and send a campaign contribution to Ned Lamont.

Announcements

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ReddHedd of firedoglake urges “action steps” to support Russ Feingold’s proposed senatorial censure of President Bush. Today, call your senators. You can contact the US Senate via the switchboard at (202) 224-3121, and they will connect you with any Senator’s office. Or you can find your particular Senator’s direct dial here.

ReddHedd will be tracking the comments, so once you’ve called send her an email or leave a comment on the post linked above.

One other thing: Yesterday on another blog I saw some comments critical of Senator Feingold because he proposed a censure instead of impeachment. The Constitution says that impeachment of a president has to originate in the House, not the Senate. A censure is the strongest measure the Senate can take. I believe the ony President to have ever been censured by the Senate is Andy Jackson.

Also: Because Wampum was having server issues over the weekend, voting for Koufax has been extended to midnight tonight! So if you haven’t voted yet, you’ve got another chance!

The Mahablog has been nominated in these categories:

Best Blog (nonprofessional)

Best Writing

Most Deserving of Wider Recognition

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