Category Archives: War on Terror

Truce, Shmoose

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If it weren’t for the fact it was released on al Jazeera, I’d wonder if the new bin Laden tape hadn’t been fabricated in the White House basement. The last time we heard from him, I believe, was on the eve of the 2004 elections. And here he is again, just when Georgie needs a diversion from this little Fourth Amendment problem.

On the tape, bin Laden suggests a truce in Iraq. To which I say, whoop-di-doo. Only 7 percent of the people we’re fighting in Iraq are affiliated with al Qaeda, according to authoritative sources, and we don’t know how many of the 7 percent actually take orders from bin Laden. Osama’s talkin’ out of his butt, says I.

Our little altercation in Afghanistan may have started out as a conflict between al Qaeda and supporters versus Afghan freedom fighters with western military support. And the scuffle in Iraq may have been conceived as one between BushCo and anti-western Islamic terrorism. But it seems to me that the violence in both countries is spinning out of control and is in the hands of more conflicting factions than you can shake a kufie at. It’s way past the point where two sides can shake hands and make a deal, even if they both wanted to. We’re not in control over there, but neither is Osama bin Laden.

I’m not sayin’ that’s the way I want it. That’s just the way it is.

Osama says he is preparing new attacks on the U.S., which isn’t exactly a big surprise, either.

ObL wanted to talk to Americans because increasing numbers of Americans want to pull out of Iraq. Naturally this touched off fury among the die hards of the Right who believe ObL is the real mastermind behind Moveon.org. For an example of crushing non-logic, check out this post. Osama says most Americans would be willing to leave Iraq. Moveon.org says most Americans would be willing to leave Iraq. The blogger lets this astonishing coincidence stand on its own, as if it self-evidently proved something.

I got news for you, toots; a majority of Americans think invading Iraq was a mistake and think we ought to be working real hard at getting out. That’s what polls say. Facts is facts.

If both Osama bin Laden and George W. Bush remark that the sky is blue, what does that tell us? (a) ObL and GWB are secretly in cahoots, or (b) the sky is blue.

Work on it, son.

Whether today’s message has any real significance, or whether it’ll prove to be something the Right will wank over for a while and then forget … well, your guess is as good as mine. Is there anything we should be doing differently because of this tape? Possibly beefing up security in major cities, but given the general waste of space the Department of Homeland Security seems to be, the cities are on their own. There’s no meaningful hope for a truce, unfortunately.

Staggering Incompetence

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Today’s New York Times story by Lowell Bergman, Eric Lichtblau, Scott Shane and Don van Natta Jr. — “Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends,” is not the first to question whether the once-secret NSA wiretapping program was effective. On January 4 Mark Hosenball posted a Newsweek web exclusive that asked the same question — illegal or not, did it work?

Hosenball writes,

Did the National Security Agency’s controversial eavesdropping program really help to detect terrorists or avert their plots? Administration officials have suggested to media outlets like The New York Times–which broke the story–that the spying played a role in at least two well-publicized investigations, one in the United Kingdom and one involving a plan to destroy the Brooklyn Bridge.

But before the NSA’s warrantless spying program became public, government spokesmen had previously cited other intelligence and legal tactics as having led to major progress in the same investigations. In the Brooklyn Bridge case, officials indicated that the questioning of a captured Al Qaeda leader had led to investigative breakthroughs in Ohio. In the British case, Justice Department officials told NEWSWEEK a year ago that investigators had made progress by using a controversial provision of the Patriot Act which allows authorities to monitor potentially suspicious activities in public libraries.

In other words, if next week we learn the White House has been getting intelligence from a Ouija board, expect the Bushies to claim the Ouija board helped save the Brooklyn Bridge.

NEWSWEEK reported extensively on these cases when government investigations were coming to fruition. In both instances, officials originally indicated that key investigative developments came from sources other than NSA electronic eavesdropping–then still a closely guarded secret.

And if we’d had that Ouija board before 9/11 — the WTC towers would be standing today.

In the New York Times story linked above, Bergman et al. report that the FBI found the NSA “intelligence” to be a nuisance — “tips” that required a lot of legwork to check out but led to dead ends.

F.B.I. field agents, who were not told of the domestic surveillance programs, complained that they often were given no information about why names or numbers had come under suspicion. A former senior prosecutor who was familiar with the eavesdropping programs said intelligence officials turning over the tips “would always say that we had information whose source we can’t share, but it indicates that this person has been communicating with a suspected Qaeda operative.” He said, “I would always wonder, what does ‘suspected’ mean?”

“The information was so thin,” he said, “and the connections were so remote, that they never led to anything, and I never heard any follow-up.”

More critically, Bergman et al. reveal that the NSA did too snoop on communications that were entirely within the United States.

Officials who were briefed on the N.S.A. program said the agency collected much of the data passed on to the F.B.I. as tips by tracing phone numbers in the United States called by suspects overseas, and then by following the domestic numbers to other numbers called. …

… in bureau field offices, the N.S.A. material continued to be viewed as unproductive, prompting agents to joke that a new bunch of tips meant more “calls to Pizza Hut,” one official, who supervised field agents, said.

I’m assuming nobody was ordering pizza from Pakistan.

The New York Times article raises several more questions. One, was the NSA program in fact counterproductive because it wasted FBI time and resources playing Trivial Pursuit?

In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.

But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

F.B.I. officials repeatedly complained to the spy agency that the unfiltered information was swamping investigators.

And, of course, we are still arguing over the legality of warrantless snooping on American citizens. One argument from the Right is that the nature of data mining makes warrants too cumbersome. On last night’s Hardball someone with expertise in FISA regulations (transcript not yet available) said that it has always been understood that warrants are not necessary for keyword searches, because they don’t involve people. But once the keyword search identifies a “U.S. person,” then law clearly requires a warrant. Seems to me that the process of applying for a warrant, as time consuming as that might be, would have forced the NSA to distinguish dead ends from genuine risks, thereby saving the FBI considerable time. Sort of the old “measure twice, cut once” principle.

Further, it is obvious the NSA program was not limited, or controlled, as the White House claims. We’re being lied to again. I’m shocked, shocked I tell you …

FBI Leak Threatens National Security!

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Treasonous FBI officials leaked to the even more treasonous ABC News that it was investigating purchases of disposable cell phones by Middle Eastern terrorists in Texas and California.

The leak will no doubt hinder the FBI’s investigation into terrorist disposable-cell-phone-buying rings and allow members of terrorist cells to slip away.

Carelessly, and probably treasonously, numerous rightie bloggers have repeated this story all over the Internets. If the terrorists missed the broadcast of the original ABC News story, they no doubt have heard about it now. This guy even let it be known that the disposable phone sales “led the FBI to known terror cells in Texas and California.” Way to go, genius. Now the terrorists are safe until somebody reports a spike in the purchase of carrier pigeons.

Mysteriously, some treasonous Fifth Columnist (a liberal?) in the Midland, Texas, police department leaked an internal memo revealing that one cell-phone-purchase ring is connected to a terrorist cell. Bill Vanderland, head of the Midland, Texas, FBI office (and who knew podunk Midland has its own FBI office?), in an obvious attempt at damage control, put out a statement that the cell phone purchasers were not, in fact, linked to any known terrorist cell. But the toothpaste was out of the tube.

Just to show how diabolically clever the cell phone-purchasing terrorists were, they made their large quantity purchases in a California Target and a Texas Wal Mart. As alert readers of Tbogg pointed out, they could have purchased these phones without drawing attention to themselves by going through “foreign”-owned bodegas in any large city and/or making several smaller purchases instead of trying to buy as many as 150 phones at once. But no doubt the FBI monitors bodegas for cell phone purchases by Middle Eastern men; the terrorists must’ve decided they’d better take care of all their cell phone purchases in one transaction and then get out of Dodge. Or Midland, as it were.

ABC News reported that disposable phones “are widely used by criminal gangs and terrorists” because they are difficult to track. Oh, great, ABC News. Now all the criminal gangs and terrorists who hadn’t already learned to use disposable phones from watching Law & Order will be using disposable phones. Jebus.

On last night’s Countdown, known terrorist sympathizer Keith Olbermann called the timing of the FBI leak suspicious:

Meantime, late in the same week that an NSA whistleblower suggests the illicit tapping of American phones is thousands of times larger and thousands of times less focused than the President claims, suddenly we have FBI sources linking stories about Middle Easterners trying to buy vast quantities of untraceable, disposable American cell phones from K-Marts and Target stores. Which, if true, makes the wiretapping look like a good idea and its leakers look like they’ve already helped terrorists outsmart the eavesdropping. Boy, you can’t buy timing like that. I mean it. I’m asking seriously, you can’t buy timing like that, right? Reassure me it only looks too convenient to be believed….

…Federal officials telling ABC News that they have launched an investigation because of two shopping sprees in the past month. In one of them, six would-be cell phone shoppers at a Wal-Mart store in Midland, Texas, last month arrested after store employees became suspicious. The men were said to be of Middle East origin. The police report in the arrest identifying the six individuals as linked to a terror cell, but several independent counterterrorism experts think any terror connection is only in the imagination of those officials….

…Last point, the timing of that FBI cell phone investigation story, we’ll never know for sure if that is or is not just an amazing coincidence that it falls right after the whole NSA whistleblower issue comes up, but, as we had pointed out here before, the administration sure gets a lot of these breaks. Their position is challenged, and then suddenly there is a hazy story about something that seems to at least tangentially justify that position.

(BTW, the transcript above comes from Newsbusters, a blog dedicated to the proposition that all news that puts George Bush or other Republicans in a bad light, true or not, is evidence of liberal media bias. Newsbusters will not rest until liberals like Olbermann are driven from mass media, so that only the true light of Bill O’Reilly can shine forth undimmed. I guess sometimes speech can get a little too free, if you know what I mean.)

Olbermann’s implication that the FBI leaked news of an ongoing terrorist investigation in order to justify President Bush’s NSA warrantless wiretap activities is, of course, unpatriotic. Imagine our government leaking sensitive information just to manipulate public opinion. Oh, wait …

Update: Somebody’s a tad twitchy. But do not ask on whom the hammer falls …

Update update: Glenn Greenwald: “We’re all (Paranoid, Imbalanced) Homeland Security Agents now!”

Update update update: Terrorists targeting Hemet, California? Speaking as one who was in lower Manhattan on 9/11 — this cracks me up.

Take the Cannoli

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“In the past, presidents set up buffers to distance themselves from covert action,” said A. John Radsan, assistant general counsel at the CIA from 2002 to 2004. “But this president, who is breaking down the boundaries between covert action and conventional war, seems to relish the secret findings and the dirty details of operations.”

It’s sooo much fun pretending to be president. Oh, wait …

The paragraph above is from an article by Dana Priest in today’s Washington Post, “Covert CIA Program Withstands New Furor: Anti-Terror Effort Continues to Grow.” Priest describes a CIA program called “GTS,” which has “grown into the largest CIA covert action program since the height of the Cold War.”

GST includes programs allowing the CIA to capture al Qaeda suspects with help from foreign intelligence services, to maintain secret prisons abroad, to use interrogation techniques that some lawyers say violate international treaties, and to maintain a fleet of aircraft to move detainees around the globe. Other compartments within GST give the CIA enhanced ability to mine international financial records and eavesdrop on suspects anywhere in the world.

Over the past two years, as aspects of this umbrella effort have burst into public view, the revelations have prompted protests and official investigations in countries that work with the United States, as well as condemnation by international human rights activists and criticism by members of Congress.

Still, virtually all the programs continue to operate largely as they were set up, according to current and former officials. These sources say Bush’s personal commitment to maintaining the GST program and his belief in its legality have been key to resisting any pressure to change course.

Covert torture programs are even more fun than executions! Our president seems to relish the secret findings and the dirty details of operations! No buffers! But you know what this means? This means …

No plausible deniability.

Heh.

Priest continues,

The administration contends it is still acting in self-defense after the Sept. 11 attacks, that the battlefield is worldwide, and that everything it has approved is consistent with the demands made by Congress on Sept. 14, 2001, when it passed a resolution authorizing “all necessary and appropriate force against those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks.”

“Everything is done in the name of self-defense, so they can do anything because nothing is forbidden in the war powers act,” said one official who was briefed on the CIA’s original cover program and who is skeptical of its legal underpinnings. “It’s an amazing legal justification that allows them to do anything,” said the official, who like others spoke on the condition of anonymity because of the sensitivity of the issues.

Extreme times call for extreme lawyering:

“The Bush administration did not seek a broad debate on whether commander-in-chief powers can trump international conventions and domestic statutes in our struggle against terrorism,” said Radsan,[*] the former CIA lawyer, who is a professor at William Mitchell College of Law in St. Paul, Minn. “They could have separated the big question from classified details to operations and had an open debate. Instead, an inner circle of lawyers and advisers worked around the dissenters in the administration and one-upped each other with extreme arguments.”

* A. John Radsan, assistant general counsel at the CIA from 2002 to 2004.

One way the White House limited debate over its program was to virtually shut out Congress during the early years. Congress, for its part, raised only weak and sporadic protests. The administration sometimes refused to give the committees charged with overseeing intelligence agencies the details they requested. It also cut the number of members of Congress routinely briefed on these matters, usually to four members — the chairmen and ranking Democratic members of the House and Senate intelligence panels.

So, the CIA has been free to develop new procedures, such as:

The CIA has stuck with its overall approaches, defending and in some cases refining them. The agency is working to establish procedures in the event a prisoner dies in custody. One proposal circulating among mid-level officers calls for rushing in a CIA pathologist to perform an autopsy and then quickly burning the body, according to two sources.

Nasty stuff. But Bush has forgotten the Michael Corleone buffer rule, as explained in Godfather II:

Senator Pat Geary: Mr. Cici, was there always a buffer involved?
Willi Cici: A what?
Senator Pat Geary: A buffer. Someone in between you and your possible superiors who passed on to you the actual order to kill someone.
Willi Cici: Oh yeah, a buffer. The family had a lot of buffers!

This will make the eventual prosecution at The Hague soooo much easier.

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.

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.

Real Resolve

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Resolve is one of President Bush’s favorite words. You can choose any of his speeches on the war on terror, or Iraq, and you’ll find that the transcript is larded with the R word.

A random example, Bush’s speech from December 12:

I’ve come to discuss an issue that’s really important, and that is victory in the war on terror. And that war started on September the 11th, 2001, when our nation awoke to a sudden attack.

Like generations before us, we have accepted new responsibilities. We’re confronting dangers with new resolve. We’re taking the fight to those who attacked us and to those who share their murderous vision for future attacks.

We will fight this war without wavering, and we’ll prevail.

But what the hell does “confronting dangers with new resolve” mean? What has actually been asked of us? With the exception of the sacrifices made by our soldiers and Marines … nothing. We go on with our lives just as before. We are not buying liberty bonds, growing victory gardens, knitting socks or rolling bandages for the troops. As illustrated by the World War I-era posters, in past wars citizens were asked to at least give up some extravagances for the war. Today the president and the Republicans in Congress won’t even consider raising taxes to pay for their war. Instead, they’ll shift the burden to the future. Our children will thank them, Im sure.

So what is Bush asking of us, except to trust him? Is that what we’re supposed to be “resolved” about?

All over the Right Blogosphere today the righties argue that Bush must be allowed unprecedented presidential powers because we are fighting terrorists. And terrorists are scary. They killed people on 9/11. They might kill more people, like me. I’ll gladly trade some civil liberties for safety.

In today’s Boston Globe, H.D.S. Greenway writes that fear is distorting our judgment.

I have no doubt that one day the Bush administration’s curtailment of civil liberties, especially the torture of prisoners, will be looked back on as a national shame. I never would have thought I would live to see the day when the president of the United States would threaten to veto a bill in Congress to ban torture, or when the vice president would spend his days lobbying Congress in favor of torture. That little shop of horrors, the vice president’s office, seems to be the place where fear regularly gains ascendancy over good judgment.

The Bush administration’s predilection to torture was clearly a result of mind-clouding fear caused by the greatest terrorist attack in history on Sept. 11th, 2001. The same can be said of the excesses of the Patriot Act, and, too, the decision to use the National Security Agency to spy on American citizens without benefit of warrant as required by the Foreign Intelligence Surveillance Act.

The Bush administration has shamelessly used fear to get its way. Both the president and vice president have tried to picture a withdrawal from Iraq as resulting in an Al Qaeda takeover of Iraq, and an Al Qaeda-led Caliphate stretching across the Muslim world. In reality al Qaeda hasn’t the remotest chance of taking over Iraq, not with 80 percent of the population either Kurdish or Shi’ite, and a timely end to American occupation might sooner lead to an Iraqi-Sunni disenchantment with foreign terrorists.

Today, righties are frantically patching together byzantine legal arguments in favor of trusting Bush. In every case, when you read deeply, you see their concern is not for the integrity of the Constitution, but the integrity of their skins. Here’s an example; keep reading to the conclusion —

I’m just guessing here, but I suspect that we have technology in place that allows us to begin intercepting phone calls within a matter of minutes after we learn of a phone number being used by an al Qaeda operative overseas. My guess is that there is a system into which our military can plug a new phone number, and begin receiving intercepts almost immediately. I hope so, anyway; and I’m guessing that the disclosure of this system to al Qaeda is one of the reasons why President Bush is so unhappy with the New York Times. If we do have such a technology, it certainly would help to explain the remarkable fact that the terrorists haven’t executed a successful attack on our soil since September 2001. And the disclosure of such a system, by leaking Democrats in the federal bureaucracy and the New York Times, makes it more likely, by an unknowable percentage, that al Qaeda and other terrrorist organizations will launch successful attacks in the future.

Translation: I don’t know what Bush is doing, but I want him to keep doing it to protect me from the terrorists.

This is not “resolve,” people. This is cowardice. This is being a herd of frightened beasts stampeding off a cliff.

My dictionary says resolve means “Unwavering firmness of character, action, or will.” I say that real resolve is not letting fear gut the Constitution.

Last June Lance Mannion wrote, “[t]hat’s why the Right hates the Left these days. We aren’t as afraid as they are. They hate us for our freedom from fear.” And now the righties are waxing hysterical because the jihadists are here! These little niceties about warrants and laws are a luxury we don’t have!

To which I say, first, no one is saying that we shouldn’t conduct surveillance on suspected terrorists. But the Bush Administration has yet to explain (to anyone’s satisfaction but a terrorized rightie’s) why it bypassed FISA, or if there was a problem with FISA why it didn’t go to Congress to make new provisions for oversight. So the argument that insisting on these constitutional niceties will make us more vulnerable to terrorist attacks just doesn’t wash. We are not choosing between safety and liberty; we are choosing between tyranny and liberty.

But what if, in some remote stretch of possibility, putting some limits on The Emperor Bush actually did increase risk of terrorist attack? I do not believe this is true, but let’s pretend. Isn’t standing on principle, even in the face of danger, the very essence of resolve? Shouldn’t we be facing terrorism with “unwavering firmness of character, action, or will” intead of running to Big Brother for protection?