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"It is better to be drunk with loss and to beat the ground, than to let the deeper things gradually escape."

- I. Compton-Burnett, letter to Francis King (1969)

"Cynical realism – it is the intelligent man’s best excuse for doing nothing in an intolerable situation."

- Aldous Huxley, "Time Must Have a Stop"

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Wednesday, 21 December 2005

Topic: Chasing the Zeitgeist

The National Script: Whose Story Makes Sense?

Two of the columnists for Just Above Sunset, the weekly magazine-style parent sit to this web log, are planning end-of-the-year columns, reviewing just what was significant from the year that is ending. We'll see what Our Man in London, Mike McCahill comes up with, and Bob Patterson, in his guise as the World's Laziest Journalist, will no doubt have something amusing to say. Our Man in Paris, Ric Erickson, will offer what he chooses, but probably not a year-end retrospective.

Andrew Sullivan, in Time magazine, calls 2005, at least in regard to national and international politics, The Year We Questioned Authority, and that'll do as a place marker for now. He calls 2005 the year we stopped going along -
We gave up blind trust and demanded real accountability. We finally had it with a war in which Bush's bromides didn't even begin to match the facts on the ground. We wanted answers and detail and a plan for victory. We began to get one in the past month or so, as the President finally started to give more candid speeches in front of general audiences, even taking unscripted questions! He acknowledged "setbacks" in Iraq and wrong prewar intelligence, predicted violence ahead, asked for persistence and cited tens of thousands of civilian Iraqi deaths.

It was a strange kind of relief, but relief it was. Some of us had wondered if this man, who had so steadfastly refused to match rhetoric with reality for so long, would ever finally hit a wall he couldn't deny, a fact he couldn't dismiss, a world he couldn't fully control. We wonder no more. Bush's signature second-term domestic agenda - Social Security reform - died a pitiless, lingering death in 2005, as the public simply refused to buy it. His gleeful opening of the fiscal spigot - the biggest increase in public spending since FDR - got deficit hawks squawking enough to force the first tiny potential cuts in pork, if nowhere near enough to control the looming debt. The Republican congressional guru, Tom DeLay, discovered that gerrymandering districts in Texas could lead to a Supreme Court challenge and that money-laundering campaign cash could lead to an indictment. Karl Rove lost some sleep over Patrick Fitzgerald. The President's argument that he didn't authorize torture but that he would veto any law that forbade it tanked so badly in the Congress that he had to capitulate and co-opt the McCain anti-torture amendment in full.
All this has to do with those moments when "the powerful were forced to concede the limits of their own clout and spin." Katrina was the turning point, "the moment when the extent of cronyism, incompetence and sheer smugness in Washington reached a level that even the White House couldn't ignore." Yep, we all saw Michael Brown was not doing a "heck of a job." Sullivan suggests a President who could say such a thing "obviously had no clue about what was going on in his own government."

Maybe so, and the year ends with evidence things are spiraling out of control, or that the script, the narrative we were all supposed to follow ("Act well your part; therein all honor lies." - Pope) is being tossed aside. Everyone's improvising, like this is some John Cassavetes' film from the sixties. Who gets to write the script, and who really needs one?

Evidence of this on Wednesday, December 21st, as the government tries to wrap everything up for the year - a federal judge on the secret FISA court, the folks who approve domestic spying if it must be done, issuing warrants, suddenly resigns in protest. His colleagues said he "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." And the remaining ten judges will meet sometime over the next two weeks to decide just what they want to do. A prominent attorney discusses the resignation here, but really, this wasn't in the script. Many are pointing to something from three years ago, this secret federal court issued a "public rebuke" to the administration, in this opinion - they charged "the government had misused the law and misled the court dozens of times." They thought the Attorney General then, John Ashcroft, had jerked them around. And maybe they're just as unhappy now. Who knows? But they're not following the script.

And the New York Times keeps messing up the narrative, as, on the same day, here they report that this Bush surveillance program spied on "purely domestic communications." But the White House said its own requirement was "that one end of the intercepted conversations take place on foreign soil." Drat. No one is paying attention to the narrative of the resourceful hero saving us all by bypassing the outdated and time-consuming rules. They're saying we're not getting the facts.

Of course you see how this is lining up. Those who subscribe to the hero-savior-cowboy model - the president is the man who does what it takes to keep us safe even if he does too much at times - are arguing those who don't see things this way are typical liberals, who don't do much of anything and argue with each other and argue about arcane laws. Who would you rather have running things? The opposition here may be sorry any of this ever came up. The original script may have holes in it that you can drive a truck through, as they say out here in Hollywood, but it's compelling - a winner at the box-office.

Holes in the script?

Here's a big one, and it regards the ever-changing script regarding Jose Padilla. He was the American citizen from Chicago we held for three years as an "enemy combatant" - the storyline was this fellow was conspiring with al Qaeda to set off a "dirty bomb" in America and irradiate tens of thousands of folks. So - no lawyer, no charges, no communication. Lock him up and throw away the key. That's what you do with such folks. The old rules don't apply.

Then we changed the script. Forget the "dirty bomb" stuff. That wasn't testing well. The idea was to move him from the military brig to a civilian jail and charge him with helping move money around overseas and chatting with the wrong people. This was a Hollywood rewrite - time for a new narrative.

So the administration filed a motion in the Padilla case to transfer the guy from military custody to civil authority. They asked the Fourth Circuit Court of Appeals to vacate its prior ruling that he was someone the president could hold forever because he was so very dangerous. The Fourth Circuit Court of Appeals, in a decision written by Michael Luttig, who was on the short list of nominees for the Supreme Court, didn't think much of the rewrite. You can't just change the narrative like that. On Wednesday, December 21, motion denied -
Because we believe that the transfer of Padilla and the withdrawal of our opinion at the government's request while the Supreme Court is reviewing this court's decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court, even if only by denial of further review, we deny both the motion and suggestion.
As noted here, the denial says only that the government's conduct "creates the appearance" that it is trying to duck review by the Supreme Court, while speculating that it might have legitimate reasons for its actions which it mysteriously refuses to articulate.

Maybe so, and perhaps "by avoiding the Supreme Court, Bush was hoping to preserve his imagined right to decide unilaterally what the law is, and the extent of his seemingly boundless Constitutional powers."

Whatever the motive, you just cannot keep changing the storyline. People actually do notice. "Say, honey, but wasn't he the mad bomber in the last episode? Did I miss something?"

And via you see everyone is getting into the act, trying to change the script -
Calling Bush The anti-American president, and rejecting the "Three Monkey argument", a Southern Baptist commentator argues that "Richard Nixon merely spied on his political opponents, while George Bush is spying on the American people.

Ruth Conniff finds Bush looking "more like Richard Nixon every day", while Earl Ofari Hutchinson argues that Bush Domestic Spying is Old News.
Seems there's a fight here over just what the narrative is. The "three monkeys" argument, by the way, seems to have something to do with saying something is okay because everyone is doing it. Yipes.

As Howard Fineman puts it - "We are entering a dark time in which the central argument advanced by each party is going to involve accusing the other party of committing what amounts to treason. Democrats will accuse the Bush administration of destroying the Constitution; Republicans will accuse the Dems of destroying our security."

That's about it.

Of course the overarching narrative we are told to accept is that things are turning around in Iraq. They had elections. That's a real turning point. Of course the previous turning points in the story had to be discarded - the fall of Baghdad with the fall of the famous statue, our displaying the mutilated bodies of Saddam Hussein's two nasty sons for the entire world to see and marvel at, the capture of Saddam Hussein, the handover of the joint to the interim government, the first elections to choose folks to write a constitution, the approval of the new constitution even if it wasn't exactly finished. At least in Hamlet you get one turning point - Hamlet stabs Polonius in his mother's bedroom. He was one guy before that, and a different guy after that. That changed everything. It seems in real life structured narratives are a little looser, as in improvisational theater.

But is this the big turning point? Well, there's this - "Votes along sectarian and ethnic lines mean Washington must do more to quell tensions and may have to forge ties with Shiite-led Iran." And there's this - "Sunni, Secular Groups Demand New Vote - Claims That Iraqi Ballot Was Rigged Threaten to Derail Government, Boost Insurgency." And you have Niall Ferguson in the Los Angeles Times with this - "... if the history of 20th century Europe is anything to go by, all the ingredients are now in place for the biggest conflagration in Middle Eastern history. The only good news is that the first thing to go up in smoke will be the theory of a democratic peace."

All this is not in the script. And Patrick Cockburn in the Independent opens his analysis with this - "Iraq is disintegrating."

Well, we'll see.

In any event, keeping people on script can be difficult. Wednesday, December 21, the senate was a mess. The Republicans control the place, but couldn't get a spending bill passed, what with a few in their own ranks not getting their lines right. Cheney, in his other role as President Pro Tem of the Senate, had to drop in to break a tie vote, so we could get more tax cuts and tighter limits on Medicaid, Medicare and student loans. But legislation to open the Arctic National Wildlife Refuge to oil drilling failed to overcome the Democratic filibuster, and attaching it to the bill that pays for our troops around the world just looked creepy. That was a narrative trap, of course. The idea was if you voted against the bill in order to save the refuge, or to protest gifts to the oil industry or whatever, the other side could say you hated the troops and all that. No one wanted to act in that episode of Who Really Hates The Troops any more.

And in the middle of the week there was all the stuff about the Patriot Act. Renewing it was hung up in the senate - filibustered by the Democrats and five or six Republican off script. Every time you cough the news on television the president was saying we'd all die if it was renewed, and others saying it needed some work, as they thought maybe it was still full of a lot of things that were pretty creepy and intrusive. The president said, renew it for many years - just do it. The opposition said let's extend it for three months and work out the problems. The president said no, he'd veto any extension - renew it all now for many years, or really, forever, or else.

It went something like this.

"We just want to fix it!"

"If you don't renew it with each and every one of the provisions for searches and snooping and all the rest, we'll all die and it'll be your fault for opposing my wishes."

"How about three months to work this out?"

"No - all or nothing, now, so just do it."

"Let's be reasonable and talk."

"No, you hate America and want us all to die because you don't understand terrorism and you're stupid and irresponsible."

"We don't want to get rid of it, we just want to extend it for three months so we can make it better."

"No you don't - you just want to make me look bad."

"No, we don't."

"Yes, you do."

"What's your problem?"

"What's your problem?"



It was like that. Late in the evening everyone agreed to a six-month extension. We'll see if the house agrees, but for now everything stays in place, just as it is, until next June. That's six months to discuss the provisions, each of them, and discuss the details. Guess who just hates details? Someone is seething.

Ah well, controlling the narrative is hard work - you want to make the other side come off as spineless cowards, and they end up looking reasonable and thoughtful and all that. How did that happen?

One of the hard things in controlling the narrative is, of course, getting everyone to see who the bad guys are. Only in the old westerns do the bad guys wear black hats and the good guys white ones. And that brings us to Canada, and the new effort, odd as it is, to make them the bad guys.


Note here Montana Senator Conrad Burns said Tuesday he "misspoke" when he claimed terrorists involved in the September 11 attacks entered the United States from Canada. Well, first you have to get your facts straight. Newt Gingrich had to apologize too (see this). But you see what's up. Fox News has been on the story - "Could our neighbors to the north soon be our enemies?" Well, you never know. The Washington Times warns here that "our once great friend is turning against us."

A frightened population will agree to almost anything to feel safe. We do get the bearded guys in robes out to kill us all just because "they hate our freedoms." Maybe PETA and Greenpeace are really terrorist groups, and maybe the two gay guys down the street living together want to destroy your marriage and make your sons listen to Barbara Streisand singing show tunes. Bird flu is a worry. But Canadians? The only time anyone successfully pitched that narrative we got a comedy. That one is hard to pitch. But they're working on it. People got tired of having to hate the French. The food, the wine, friends one makes with actual French folks, and too many of us have been there too many times. That just stopped working. They were too harmless, and annoyingly charming - and too far away. But the Canadians are NEXT DOOR! Boo!

Ah well. Fox News and the Washington Times may have, as they say in Hollywood, jumped the shark on that one.

The other narrative that didn't fly this same week was the whole notion that when teaching science one should, when one sees something complex that has not yet been explained, and verified by experiment, say that this gap is not something that awaits further investigation. One should say this complexity can only be attributed to the supernatural, as it is clearly the work of some intelligent designer, the mysterious maker of the universe. If you don't yet see how something complicated works, that proves, ipso facto, there is an intelligent designer.

But that one bit the dust this week, as in Judge Bars 'Intelligent Design' From Pa. Classes - "Intelligent design" cannot be mentioned in biology classes in a Pennsylvania public school district, a federal judge said Tuesday, ruling in one of the biggest courtroom clashes on evolution since the 1925 Scopes trial.

The 139-page ruling is here, and it is rather clear. This narrative is whacky, and the local school board, since voted out of office, had resorted to "breathtaking inanity" in pushing it.

Basically, Judge John Jones III decided that the board's policy violated the Establishment Clause of the First Amendment by endorsing a religious belief. - "In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents."

And this - "The breathtaking inanity of the board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources."

The Washington Post has a full analysis here, and you could go to the ACLU of Pennsylvania's website for more, or see this in the Chronicle of Higher Education.

Note here William Saletan says in this "intelligent design" case, federal district Judge John E. Jones "sets out to kill ID's scientific pretensions once and for all" -
After a six-week trial that spanned twenty-one days and included countless hours of detailed expert witness presentations, the Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area," he writes. Jones proceeds to tear ID limb from limb "in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial" on the same question.

Scientifically, Jones settles the issue. Culturally, he fails. And until we learn the difference, the fight over creationism in schools and courts will go on.

It seems the judge defined science too carefully. As in first, scientific explanations must be natural, not supernatural. Second, they must be testable. These criteria instantly kill this stuff as science. So teach it in some other class, maybe comparative religion. The other side defines science differently - "all scientific evidence which fails to support the theory of evolution is necessarily scientific evidence in support of creationism." The judge says that's not science. He calls this "contrived dualism." Of course it cannot be tested or proven, but they call it science. So does the Kansas school board.

Saletan -
ID theorists assume evidence against evolution is evidence for ID; Jones assumes any unscientific theory is religious and therefore forbidden.

Jones acts like it's no big deal to declare ID unscientific, since science is just one kind of learning. "Supernatural explanations may be important and have merit," he says. "ID arguments may be true," could have "veracity," and possibly "should continue to be studied, debated, and discussed." But if unscientific theories are religious, and religion can't be taught, it's unclear how notions related to ID could be debated in schools, or how their truth or merit could be entertained. And that's bad news for science, because it offers people with creationist sympathies - roughly half the American public - no outlet in the public education system outside of the science classroom.
And that's the problem. These folks feel threatened -
Is the pseudo-science of creationism ultimately being driven by religion? Or is this brand of religion, in turn, being driven by cultural anxieties? Is it possible to open a conversation with these folks and their kids, not in biology class but in, say, social studies?

According to Jones, the founder of the ID movement has written that evolution contradicts "every word in the Bible." Every word? You mean, including the part about not killing or stealing? No wonder so many people cling to creationism. And no wonder scientists and judges can't make it go away.
This isn't over.

Oh, and by the way, here's something just lost in the war for who controls the narrative.

Report - The Constitution in Crisis
By House Judiciary Committee Minority Staff
Tuesday 20 December 2005
The Downing Street minutes and deception, manipulation, torture, retribution, and coverups in the Iraq war.

Executive Summary
This Minority Report has been produced at the request of Representative John Conyers, Jr., Ranking Member of the House Judiciary Committee. He made this request in the wake of the President's failure to respond to a letter submitted by 122 Members of Congress and more than 500,000 Americans in July of this year asking him whether the assertions set forth in the Downing Street Minutes were accurate. Mr. Conyers asked staff, by year end 2005, to review the available information concerning possible misconduct by the Bush Administration in the run up to the Iraq War and post-invasion statements and actions, and to develop legal conclusions and make legislative and other recommendations to him.

In brief, we have found that there is substantial evidence the President, the Vice President and other high ranking members of the Bush Administration misled Congress and the American people regarding the decision to go to war with Iraq; misstated and manipulated intelligence information regarding the justification for such war; countenanced torture and cruel, inhuman and degrading treatment and other legal violations in Iraq; and permitted inappropriate retaliation against critics of their Administration.

There is a prima facie case that these actions by the President, Vice-President and other members of the Bush Administration violated a number of federal laws, including (1) Committing a Fraud against the United States; (2) Making False Statements to Congress; (3) The War Powers Resolution; (4) Misuse of Government Funds; (5) federal laws and international treaties prohibiting torture and cruel, inhuman, and degrading treatment; (6) federal laws concerning retaliating against witnesses and other individuals; and (7) federal laws and regulations concerning leaking and other misuse of intelligence.

While these charges clearly rise to the level of impeachable misconduct, because the Bush Administration and the Republican-controlled Congress have blocked the ability of Members to obtain information directly from the Administration concerning these matters, more investigatory authority is needed before recommendations can be made regarding specific Articles of Impeachment. As a result, we recommend that Congress establish a select committee with subpoena authority to investigate the misconduct of the Bush Administration with regard to the Iraq war detailed in this Report and report to the Committee on the Judiciary on possible impeachable offenses.

In addition, we believe the failure of the President, Vice President and others in the Bush Administration to respond to myriad requests for information concerning these charges, or to otherwise account for explain a number of specific misstatements they have made in the run up to War and other actions warrants, at minimum, the introduction and Congress' approval of Resolutions of Censure against Mr. Bush and Mr. Cheney. Further, we recommend that Ranking Member Conyers and others consider referring the potential violations of federal criminal law detailed in this Report to the Department of Justice for investigation; Congress should pass legislation to limit government secrecy, enhance oversight of the Executive Branch, request notification and justification of presidential pardons of Administration officials, ban abusive treatment of detainees, ban the use of chemical weapons, and ban the practice of paying foreign media outlets to publish news stories prepared by or for the Pentagon; and the House should amend its Rules to permit Ranking Members of Committees to schedule official Committee hearings and call witnesses to investigate Executive Branch misconduct.

The Report rejects the frequent contention by the Bush Administration that there pre-war conduct has been reviewed and they have been exonerated. No entity has ever considered whether the Administration misled Americans about the decision to go to war. The Senate Intelligence Committee has not yet conducted a review of pre-war intelligence distortion and manipulation, while the Silberman-Robb report specifically cautioned that intelligence manipulation "was not part of our inquiry." There has also not been any independent inquiry concerning torture and other legal violations in Iraq; nor has there been an independent review of the pattern of coverups and political retribution by the Bush Administration against its critics, other than the very narrow and still ongoing inquiry of Special Counsel Fitzgerald.

While the scope of this Report is largely limited to Iraq, it also holds lessons for our Nation at a time of entrenched one-party rule and abuse of power in Washington. If the present Administration is willing to misstate the facts in order to achieve its political objectives in Iraq, and Congress is unwilling to confront or challenge their hegemony, many of our cherished democratic principles are in jeopardy.

This is true not only with respect to the Iraq War, but also in regard to other areas of foreign policy, privacy and civil liberties, and matters of economic and social justice. Indeed as this Report is being finalized, we have just learned of another potential significant abuse of executive power by the President, ordering the National Security Agency to engage in domestic spying and wiretapping without obtaining court approval in possible violation of the Foreign Intelligence Surveillance Act.

It is tragic that our Nation has invaded another sovereign nation because "the intelligence and facts were being fixed around the policy," as stated in the Downing Street Minutes. It is equally tragic that the Bush Administration and the Republican Congress have been unwilling to examine these facts or take action to prevent this scenario from occurring again. Since they appear unwilling to act, it is incumbent on individual Members of Congress as well as the American public to act to protect our constitutional form of government.
No one noticed.

Posted by Alan at 21:58 PST | Post Comment | Permalink
Updated: Wednesday, 21 December 2005 22:07 PST home

Tuesday, 20 December 2005

Topic: The Media

Press Notes: Tuesday was pile-on day...

Tuesday, December 20th, was one of those "Now what?" days. The transit strike in New York got underway and just about everything ground to a halt. Mayor Bloomberg was on television and very angry, and since those striking are members of a public service union and not workers for any corporation, he said the strike was illegal and he would not negotiate with these folks until they returned to work, and they'd each be docked two days pay for each day they didn't work - and a judge decided it would be a good thing to fine the union one million a day for each day the strike continued. The last strike, in 1980, lasted eleven days. This one will last a while too, given all this. Everyone is angry and no one is talking.

"Our Man in Paris," Ric Erickson, editor of MetropoleParis, is amused. Such things are a matter of course over there. Who's on strike today? In the Métro shut down at the moment? He came across this on Craig's List - rideshare information for New Yorkers - and this, the union's site on exactly what's shut down and why and what the issues are. As a long-term resident of Paris he's on the case, but the high-powered Wall Street attorney with his office more then thirty floors above Battery Park, who is sometimes quoted in these pages, phoned from central New Jersey. He worked from home. Things were just fine somewhere between Rutgers and Princeton.

With all five boroughs of New York in a mess of course Tuesday was the day to pile on the New York Times. As mentioned elsewhere, late Monday here, Jonathan Alter of Newsweek had said this - "I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting, but one can only imagine the president's desperation."

Well, they ran the story, but after they had sat on it for a year - and there were scattered reports that there had been internal dissention at the Times, as some there felt it should have been run when they first had the story, before the presidential election - see the summary at Editor and Publisher here. That would have been interesting.

Tim Grieve here does a rant, with the obvious key points. When we all were preparing to vote thirteen months ago the Times knew the Bush administration had been lying about Scooter Libby's role in the outing of Valerie Plame. Judy Miller knew and she had discussed that with her editors and everyone agreed it was "protect your source" time. They didn't tell their readers about Scooter. At the same time it seems they also knew the Bush administration had been spying on American citizens in clear violation of an act of Congress. They didn't tell their readers - the administration told them that would compromise national security. They caved, or were patriotic, depending on your point of view. (But Grieve, to be fair, points out that the Washington Post and Time magazine also knew about White House involvement in outing that CIA agent, "but chose to let Scott McClellan's denials stand through Election Day in favor of protecting their sources.")

Grieve takes this position -
Would any of it have made a difference in November? We'll never know because journalists decided to keep the news to themselves until long after the voting was over. In the statement he released Friday, Keller said it's not the Times' "place" to "pass judgment on the legal or civil liberties questions" raised by Bush's secret spying plan. But it is the Times' place - it is a journalist's responsibility - to report the news, especially when that news involves the possibility that crimes were committed by the highest officials in our nation's government.
Yeah, and you do that and you get raked over the coals for undermining the war on terror and no Republican will ever speak to one of your reporters again. You will have no sources inside the party that holds the executive branch, both house of congress and most of the judiciary. No more scoops, but then, no more being spun and used. Gee, it's hard to decide whether you want to be the stenographer of those in power, or an outsider looking in. The Times seems caught between deciding whether to be the official historians of the Bush administration, or outsiders digging for truth, in the manner of the late Jack Anderson and the Knight-Ridder folks. Of course, the job of being the "court stenographer" of the Bush administration, has already been taken, by Bob Woodward, or so says Howard Fineman, wondering whatever happened to news reporting from the outside looking in.

Arianna Huffington is even more blunt than Tim Grieve is with this -
What else is the Times sitting on? How many other instances of Bush administration illegality has the Times been "satisfied" that we don't need to know. Could we at least have a rough estimate?

There's been much talk about the bubble that George Bush lives in, but if he ever finds that his model is too porous, he should check out the one that Sulzberger, Keller, and the Times have crafted for themselves.

Even after the Miller fiasco, it's clear that those in charge of the Times still haven't figured out the fundamental nature of the crisis that has arisen between the paper and its readers. So let me spell it out for them:

The paper is in grave danger of losing its relevance because the public can no longer trust that the very first instinct of the Times when it comes across a piece of news is, "Is this something important for our readers to know?" instead of, "Who might we piss off if we publish this?"

The future of the Times hinges on its ability to convince its readers that its loyalty flows to the public and not to the powers-that-be.

After the Supreme Court freed the Times to resume publication of the Pentagon Papers in 1971, Times managing editor Abe Rosenthal was asked whether some degree of antagonism between the government and the press was "a sign of good health in both parties." He replied: "I think it is. I don't think we'll ever see the day, nor should we see the day, when we're in bed together."

It's a tragedy that Abe's crystal ball gazing turned out to be so wrong.
That about sums it up. Some us would like a paper that has as its daily mission asking the question, "Is this something important for our readers to know?" But then you'd piss off your sources. It's a puzzle.

Would you go with something like this - in an interview with Wolf Blitzer, Secretary of State Condoleezza Rice saying that the president's decision to authorize domestic spying without any warrants was fine because he had cleared it with "The Highest Legal Authority In The Country," the Attorney General? As noted here, any veteran of an eighth grade civics class can tell you the highest legal authority in the country is the Supreme Court, and "Rice's position illustrates the problem with this administration - the belief that the power of the executive is unchecked."

Yeah, it's a minor thing. Rice keeps saying in these interviews, "I'm no lawyer, but...."

No kidding, Condi.

On the other hand, the Times sort of redeemed itself Tuesday, December 20th, with this item from Eric Lichtblau, sure to piss off the FBI - "Counterterrorism agents at the Federal Bureau of Investigation have conducted numerous surveillance and intelligence-gathering operations that involved, at least indirectly, groups active in causes as diverse as the environment, animal cruelty and poverty relief, newly disclosed agency records show."

The Times is reporting on the fruits of a series of Freedom of Information Act lawsuits brought by the American Civil Liberties Union. Now Bill O'Reilly of Fox News, pretty much the official voice of the Bush administration, has said the ACLU are terrorists - he thinks they're sort of Nazis. The Times, reporting this, now seems willing to incur the wrath of Roger Ailes' Fox News and the FBI and the rest of the administration by reporting on this. What's up with that?

Of course they do report that FBI said Monday that their investigators "had no interest in monitoring political or social activities and that any investigations that touched on advocacy groups were driven by evidence of criminal or violent activity at public protests and in other settings."

The rest of the item undermines that assertion -
After the attacks of September 11, 2001, John Ashcroft, who was then attorney general, loosened restrictions on the FBI's investigative powers, giving the bureau greater ability to visit and monitor websites, mosques and other public entities in developing terrorism leads. The bureau has used that authority to investigate not only groups with suspected ties to foreign terrorists, but also protest groups suspected of having links to violent or disruptive activities.

But the documents, coming after the Bush administration's confirmation that President Bush had authorized some spying without warrants in fighting terrorism, prompted charges from civil rights advocates that the government had improperly blurred the line between terrorism and acts of civil disobedience and lawful protest.

One FBI document indicates that agents in Indianapolis planned to conduct surveillance as part of a "Vegan Community Project." Another document talks of the Catholic Workers group's "semi-communistic ideology." A third indicates the bureau's interest in determining the location of a protest over llama fur planned by People for the Ethical Treatment of Animals.
The Times is entertaining the idea that the administration sometimes doesn't tell the truth? How odd. One suspects they need to regain some appearance of "investigative journalism" to remove the sense that they'd become administration stenographers. So for the last week the ACLU provided the Times with the goods, and they ran with it.

As you recall, the FBI had previously turned over a few documents on antiwar groups, showing their interest in investigating "possible anarchist or violent links" in connection with antiwar protests and demonstrations at the time of the nominating conventions. A little suspicious, and earlier this month, the ACLU Colorado chapter released other documents involving the FBI keeping files on people protesting logging practices at a lumber industry meeting three years ago. Damn, those terrorists are everywhere.

Times scoop is that the latest batch of documents, released Tuesday, shows the FBI has files on the animal rights group PETA, the environmental group Greenpeace and the Catholic Workers group - as they promote antipoverty things and "social causes."

And note the details -
One FBI document indicates that agents in Indianapolis planned to conduct surveillance as part of a "Vegan Community Project." Another document talks of the Catholic Workers group's "semi-communistic ideology." A third indicates the bureau's interest in determining the location of a protest over llama fur planned by People for the Ethical Treatment of Animals.
The FBI has been busy on the terrorism front, depending on how you define terrorism. Maybe spending money and manpower on the protest over llama fur is a stretch, but al Qaeda is devious. You never know.

Anyway, the Times is deadpan here and devastating. It's as good as the previous MSNBC scoop on the military, the Pentagon's field activities folks, keeping close watch on the educational group at the Quaker Meeting House in Lake Worth, Florida - those mothers and grandmothers having a potluck dinner to discuss how they felt about military recruiting at local high schools. Well, they might have been dangerous terrorists, no? The Defense Department refused to comment on how it obtained information on the Lake Worth meeting or why it considers a dozen or so anti-war activists a "threat." Mum's the word.

The Washington Post piled on too with their item on the ACLU files. They noted the FBI compiled a contact list of students and peace activists who attended a 2002 conference at Stanford University about ending sanctions then in place in Iraq. And they note the ACLU files showed the FBI was keeping files on the ACLU itself. Cool.

Those of us who grew up in Pittsburgh know the Post-Gazette is a thin excuse for a newspaper, but their editorial on the NSA domestic spying scandal on the 18th ended with a curious contention - "The idea that all of this is being done to us in the name of national security doesn't wash; that is the language of a police state. Those are the unacceptable actions of a police state."

That was before the ACLU released what the got from their FOIA requests. We'll see what they say next in Steel City.

But wait. There's more.

We see here that the Pentagon's anti-terror investigators labeled gay law school groups a "credible threat" of terrorism. Well, who would have imagined!

That's from the source document MSNBC obtained from the Pentagon, and note this -
Only eight pages from the four-hundred page document have been released so far. But on those eight pages, Sirius OutQ News discovered that the Defense Department has been keeping tabs NOT just on anti-war protests, but also on seemingly non-threatening protests against the military's ban on gay service members. According to those first eight pages, Pentagon investigators kept tabs on April protests at UC-Santa Cruz, State University of New York at Albany, and William Patterson College in New Jersey. A February protest at NYU was also listed, along with the law school's gay advocacy group "OUTlaw," and was classified as "possibly violent."

All of these protests were against the military's policy excluding gay personnel, and against the presence of military recruiters on campus. The Service Members Legal Defense Network says the Pentagon needs to explain why "don't ask, don't tell" protesters are considered a threat."
Well, these folks shouldn't ask. They won't be told.

But something is up here. The news organizations, even the New York Times, seem to be looking into some mighty odd things. And that fifth-rate paper in Pittsburgh may have actually nailed it.

Posted by Alan at 19:51 PST | Post Comment | Permalink
Updated: Tuesday, 20 December 2005 19:55 PST home

Monday, 19 December 2005

Topic: Backgrounder

Documentation and Observations: Filling in the Corners of the Domestic Spying Dispute

As elsewhere, a unanimous Supreme Court decision in 1971 held that President Nixon did not have the constitutional powers as Commander-in-Chief to override any law, statute or other provisions of the constitution in order to preserve and protect the constitution of the United States. There were rules against spying on American citizens - spying here being defined as, without a warrant or congressional oversight or any judicial review, wiretapping and bugging and all that, and keeping secret files and all the rest. That was a no-no, a violation of the Fourth Amendment regarding illegal search and seizure. This secret spying is, of course, different than criminal investigation, where you get a warrant to secretly, or at least discretely, investigate suspicious activity that my be connected to a crime, one that has been committed or is being planned. That's fine. You ask for permission and almost always get it - the Fourth Amendment doesn't to forbid the government from fighting crime. But you have to ask. You just can't tap the phone or plant the bug without permission. You do a legal search.

That was the controversy as of Monday, December 19th - but this time it was President Bush maintaining he had the constitutional power to override any law, statute or other provisions of the constitution to do this domestic spying. The flurry of opinion throughout that day was intense.

In the morning the president held a press conference where he said just that - Bush Says U.S. Spy Program Is Legal and Essential (NY Times). He did this without any warrant or review, and he planned to keep doing it.

A few hours earlier the Attorney General said on the Today Show that congress, when they approved the 2001 resolution giving the president the authority to use force to deal with the threat posed by al Qaeda and Iraq's weapons of mass destruction, implied with the words "by any appropriate means" that they were granting the president permission to work completely outside the law. That's how he saw it. Thus there was no problem and all the outrage was misplaced. That contention is reviewed (with links) here - Congress Gave President The Authority To Spy On Americans. In a press conference later in the day the Attorney General elaborated. Of course in the press conference he argued that Congress had already implicitly authorized such a warrant-free outside-any-law domestic spying program, and then also said the administration declined to seek explicit authorization because "we were advised that that was not likely to be - that was not something we could likely get." Huh? So Congress had already clearly authorized it - but he knew they really wouldn't authorize it. But they did authorize it. But they wouldn't if they knew what was going on. But they really did authorize it. Really.

Fine. Make of that what you will.

But what to make of this from Jonathan Alter in Newsweek just a few hours later - "I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting, but one can only imagine the president's desperation."

Somehow the word "busted" comes to mind. One can be fairly safe in assuming the bad guys know we do everything we can to intercept and evaluate all the communication of theirs we can get our hands on, or our ears on, or whatever. What could the Times be doing here that would aid the enemy? The enemy knows we're listening. The Times story was about who gets to ignore the law. Is there any other reason to ask the Times to spike it?

Well, maybe there is, and that leads to the first curious Monday document.

The administration says they consulted with congress on this. But it seems they consulted with only a few committee chairs, and swore them to secrecy - they couldn't even speak to their staff about what they'd heard - and as these few have pretty much all said, it was hardly a consultation anyway.

They were told the administration was doing this domestic spying and bypassing the special and secret panel, the FISA court, set up in 1978 to approve such things - even though this panel had never turned down a request and was okay with stuff done without asking, as long as they were told within seventy-two hours. This wasn't asking what they thought of bypassing the rules and safeguards - these select few were just being informed it was happening.

And that prompted one of these few, Senator Jay Rockefeller, to release a handwritten note he sent the Vice President over two years ago after one of these "consultations."

This is very odd. The image is here and the text is this:
July 17, 2003

Dear Mr. Vice President,

I am writing to reiterate my concern regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, and Chairman Roberts and our House Intelligence Committee counterparts.

Clearly the activities we discussed raise profound oversight issues. As you know, I am neither a technician nor an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.

Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.

I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication.

I appreciate your consideration of my views.

Most respectfully,

Jay Rockefeller
Now that's something you don't see every day, and it raises all sorts of questions.

The first is with " I am neither a technician nor an attorney." Why would he need technical knowledge?

Josh Marshall here says that "over the last couple days I've heard informed speculation from several knowledgeable sources that what is likely really at issue here is the nature of the technology being deployed - both new technology and technology which in the nature of its method of collection turns upside down our normal ways of thinking about what constitutes a reasonable or permissible search."
Those of us who have worked in the world of information technology and built "data warehouses" know all about data mining and things like Bayesian and Dependency Networks and Sequential Patterns and Time Series. The tools exist to scan the thousands of terabytes of emails out there on all the email servers in the country, daily, "in order to find previously unsuspected relationships, which are of interest or value." It's not just looking for keywords anymore. And yes, this really does "turn upside down" our normal ways of thinking about what constitutes a reasonable or permissible search. And it is something the NSA can do, as many have reported. As one of Marshall's readers noted, "No FISA authorization would be possible, since this sort of activity was not contemplated by that law." That may be what's going on here.

Is that a good thing? Maybe so, and maybe not. But perhaps some sort of rules to safeguard against abuse should regulate such massive digging around. This is not exactly analogous to a "fishing expedition," where you want to nail someone but you have nothing so you just poke around. But it's close to that. Is using "pattern recognition" software on a billion random emails something for which you need a warrant? The question had ever come up. Now it has, or will.

Marshall notes other comments about the Rockefeller memo, like this -
I am sure you've read enough bureaucratic communications to know what this memo says: "When this hits the fan, I am keeping a copy of this so you can't take me down with you." I hope you explicitly bring this out in one of your postings. The consulted senators knew this was ultimately going to go nuclear.
And this -
To read Sen. Rockefeller's feeble handwritten letter is like reading a note sent from a jailed political prisoner, isn't it? This must be the "oversight" Bush was talking about this morning - giving a Senator an iota of information regarding extra-legal executive branch activities, prohibiting him to even tell his own staff, and then refusing to respond in any meaningful way when he writes a handwritten letter of concern to the VP ...
Well, that's life in Washington, isn't it?

And Marshall also here wants to clarify one point that he believes "has become muddled a bit in the discussion of the White House's legal argument with these wiretaps." He says Bush and the Attorney General are not really arguing that the Afghanistan War Resolution gave them "the authority to override whatever laws or constitutional prohibitions exist against these warrantless searches/wiretaps." They are actually arguing is that the Resolution affirmed the president's inherent power as commander-in-chief to do these things - the president's powers as a wartime commander-in-chief are essentially without limits and that "he's simply not bound by the laws the Congress makes." He says what gave them that idea was this legal opinion from the Justice Department advisor at the time, John C. Yoo. That's the second odd document.

The third odd document is from one of our California senators, Barbara Boxer.

She has a question -
December 19, 2005

Washington, D.C.- U.S. Senator Barbara Boxer (D-CA) today asked four presidential scholars for their opinion on former White House Counsel John Dean's statement that President Bush admitted to an "impeachable offense" when he said he authorized the National Security Agency to spy on Americans without getting a warrant from a judge.

Boxer said, "I take very seriously Mr. Dean's comments, as I view him to be an expert on Presidential abuse of power. I am expecting a full airing of this matter by the Senate in the very near future."

Boxer's letter is as follows:

On December 16, along with the rest of America, I learned that President Bush authorized the National Security Agency to spy on Americans without getting a warrant from a judge. President Bush underscored his support for this action in his press conference today.

On Sunday, December 18, former White House Counsel John Dean and I participated in a public discussion that covered many issues, including this surveillance. Mr. Dean, who was President Nixon's counsel at the time of Watergate, said that President Bush is "the first President to admit to an impeachable offense." Today, Mr. Dean confirmed his statement.

This startling assertion by Mr. Dean is especially poignant because he experienced first hand the executive abuse of power and a presidential scandal arising from the surveillance of American citizens.

Given your constitutional expertise, particularly in the area of presidential impeachment, I am writing to ask for your comments and thoughts on Mr. Dean's statement.

Unchecked surveillance of American citizens is troubling to both me and many of my constituents. I would appreciate your thoughts on this matter as soon as possible.


Barbara Boxer

United States Senator
So what will the scholars say? Is President Bush is "the first President to admit to an impeachable offense?" This has "gone nuclear."

On the other hand, there is this charm offensive going on. The president gave four speeches in the run-up to the Iraq elections, gave an extended interview to Brit Hume on Fox News and one to Jim Lehrer on public television, gave his first speech from the Oval Office in years on Sunday night and Monday morning held a long press conference. He's suddenly all over the place, in what John Dickerson calls Bush's Long March to Candor.

As for the Oval Office speech -
This was only the latest display in Bush's month long march toward candor. Starting in late November, with the first of a series of speeches preparing the ground for the Dec. 15 Iraqi elections, the president started offering a little more reality and a little less spin. Likewise, in his Sunday night remarks, Bush tried to show he was "listening" to opposition lawmakers and his military commanders and reacting accordingly. He admitted mistakes and course corrections and leveled about the shaky future in Iraq. "We have learned from our experiences, and fixed what has not worked," he said, sounding fresh out of therapy. "We will continue to listen to honest criticism, and make every change that will help us complete the mission."

The promise of a more candid president is irresistible. It's insulting when Bush spins so wildly while claiming to be plainspoken. If he admits the obvious, the press can spend less time trying to make him do so and more on questions about future policy. Democrats might also be shamed into a more honest dialogue.

But should we believe that the president really has changed? Politicians and no-good boyfriends have traditionally used watery admissions to give the appearance of change without actually changing. Is Bush now listening and facing up to reality? Or is he saying he's listening, the better to tune out criticism and facts he doesn't want to hear?
Who knows? Dickerson has his views -
Bush still has a way to go with this whole candor thing. He says he's listening to his critics but then labels them as defeatists. Asked in his press conference Monday what he thought his biggest mistake was during his tenure and what he had learned from it, Bush didn't offer much. He saw the question as a trap, just as he did when I asked him the same question in April 2004. This time, he talked briefly about training the Iraqi civilian defense force poorly and moved on.

... Bush surely has the capability to be candid. Those of us who have talked to him off the record have seen it. White House aides have struggled for years to show that side of Bush to the public but always fail because Bush says things off the record that would get him crucified. It's not just rough language that he thinks would hurt him. Bush doesn't think he can speak plainly without his comments being taken out of context - without Democrats doing what the RNC is doing to them. Bush can say in private that he understands that the mere presence of U.S. soldiers helps feed the Iraqi insurgency, but in public he's never going to say anything that might look like he's undermining U.S. troops. If people think he's clueless because he won't speak this and others truths out loud, he's willing to suffer that.
It sounds like the man is trapped. And here Fred Kaplan suggests that in the Oval Office speech Bush close to delivering a frank and forthright speech "but in the crunch, he reverted to form and the by-now-predictable mix of fact, distortion, and fantasy."

Well, there's a lot of that going around, along with some odd documents.

Posted by Alan at 20:58 PST | Post Comment | Permalink
Updated: Monday, 19 December 2005 21:04 PST home

Topic: The Law

The Good Old Days Return

As reported by Nasser Karimi of the Associated Press, Monday, December 19, Iran's President Bans Western Music.

Mahmoud Ahmadinejad is at it again. Wasn't it just last week he said the Holocaust never happened, or was some sort of exaggeration? I think he called a myth. And didn't he also suggest Israel, if not wiped from the face of the map, should at least be removed from the Middle East and be reestablished in Europe? (Where? They have spare room in Slovenia?)

Now this - it's time to move the country back to the early days of the 1979 Islamic Revolution. Those were the good old days?

We're told that ditties like George Michael's "Careless Whisper," Eric Clapton's "Rush" and the Eagles' "Hotel California" have commonly accompanied Iranian broadcasts. Perhaps the "Hotel California" thing explains the seventy-six logons to Just Above Sunset from Iran in the last two years, and the two or more logons to the daily web log from Tehran each week - California Dreamin' and all that.

This ban is puzzling, but the AP item notes they had also played there a lot of tunes by the schlock jazz saxophonist Kenny G. You can get behind banning him. No problem.

In any event, the official daily paper over there said that Ahmadinejad, as head of the Supreme Cultural Revolutionary Council (think of Bill O'Reilly and the Christmas Wars), said this was now required - no more "indecent and Western music" on Islamic Republic of Iran Broadcasting. Enough is enough.

It seems western music, films and clothing are widely available in Iran, "and hip-hop can be heard on Tehran's streets, blaring from car speakers or from music shops." Who'd have guessed? And there seems to be a thriving black market for bootleg videos and DVD's of films banned by the state.

But they had an election. Ahmadinejad won convincingly, on a platform to clean things up. Of course Ayatollah Khomeini outlawed all music as "un-Islamic" back in the good old days, but then, after he was gone, you started to get a bit of light classical music on state radio and television. Things were slipping, and by the late eighties there were, of all things, a few public concerts. So this had to stop.

Ahmadinejad campaigned on a platform to confront "the Western cultural invasion" and promote Islamic values. And he won. So they move back to the good old days.

Well, the Fox News O'Reilly-Gibson effort to punish those who use "Happy Holidays" and not "Merry Christmas" in advertising and in the personal greetings of us all on the streets and in the offices and homes in America, and all the talk in congress about getting the FCC to expand its regulation of what we are allowed to see and hear beyond the pubic broadcast media to now include pay-for-access cable television and satellite radio (the new realm of Howard Stern), means we too want to return to the good old days. But that would be the Ozzie and Harriet fifties, not seventeenth-century Puritan New England, or so we all hope.

And that bring us to Martin Garbus, partner in the law firm of Davis and Gilbert. Time Magazine says he's "legendary" (in some circles) and "one of the best trial lawyers in the country." The National Law Journal says he's America's "most prominent First Amendment lawyer" - one of the country's top ten litigators. He's now involved a copyright infringement suit against that hip-hop fellow Eminem (Marshall Mathers). Garbus represents a composer, not the Mathers fellow. And yes, this cause would be moot in Iran.

He's also presently representing employees in a class action employment discrimination suit challenging Bush's "faith based" initiative, and flight attendants in a labor dispute against their union and American Airlines. He's busy. And there's much more at his bio - he represented Lenny Bruce against obscenity charges, handled the estates of Marilyn Monroe, Igor Stravinsky, John Cheever and Margaret Mitchell, and was the fellow who handled Mitchell case involving that parody of "Gone With the Wind." (He lost that one, as discussed in these page in 2003 here, and in 2004 here.) Along the way he's represented and advocated on behalf of Nelson Mandela, Vaclav Havel, Daniel Ellsberg and Andrei Sakharov. He's a big gun.

And he's worried about going back to the good old days. In an item co-written with Leonard Weinglass - one of the attorneys involved in the 1971 Nixon case where the administration then contended the president's powers as Commander-in-Chief at a time of even undeclared war overrode the privacy rights of citizens (domestic spying was necessary and legal) - he's say we're back there again.

That's here, and the New York Times headline from Monday, December 19, 2005 is, of course, Bush Says U.S. Spy Program Is Legal and Essential.

It's the same argument. "Both Presidents claim that their Constitutional powers as Commander-in-Chief include the right to override any law, statute or other provisions of the constitution in order to preserve and protect the constitution of the United States." Except Bush is winning this time.

Nixon lost -
A unanimous Supreme Court (the vote was 8-0, with Justice Rehnquist recusing himself because he was in the Justice Department legal counsel's office when the domestic spying program was formulated), with Justice Powell writing the opinion, in United States v. U.S. District Court, unambiguously rejected any such notion, articulating a clear-cut admonition to those who would diminish the import of the Fourth Amendment by suggesting that domestic spying at the whim of the president would be permitted under any circumstances.
So the Fourth Amendment, insofar as it protects us all from unreasonable search and seizure, seemed like a good thing then. As the fourth of the first ten amendments, the basic bill of rights, they didn't want to mess with it.

Then there was the exception -
... in a single aside, the court noted that previous presidents had engaged in domestic surveillance without securing warrants as part of ongoing efforts to secure foreign intelligence (mainly involving counter-espionage efforts directed against German and Italian embassies and counsulated by the Roosevelt Administration) and that the Court expresses no opinion on such efforts. That opening led to the enactment of Foreign Intelligence Surveillance Act (FISA) in 1978, a bill sponsored by Senator Ted Kennedy of Massachusetts with the blessing of the American Civil Liberties Union. FISA established for the first time in our history a "court" that existed outside the framework of the Fourth Amendment, a secret court that most Americans don't even know exists. It has a single function: to authorize by way of issuing warrants at the request of federal agents, surveillance within the United States on a minimal showing that the target is acting on behalf of a foreign power and that the foreign intelligence to be gathered is necessary for national security. The courtroom itself is in a vault-like chamber, a windowless room on the top floor of the Department of Justice, guarded by military security. There are seven rotating judges. The Court meets in secret, with no published opinions or public records. Nearly all of those spied upon never knew they were under surveillance.

No one, except the FISA judge involved and the Department of Justice knows what is done. No one, except the government and FISA judge knows who the warrants are aimed at. There is no review by anyone, neither the regular federal Appellate Courts nor the Congress, of its decisions. Over 15,000 search warrants, permitting eavesdropping, surveillance and break-ins, have been sought by the government and granted. Although the FISA court is required to determine if there are enough facts to justify a warrant, only eight times has it ever denied a warrant sought by the government. The FISA statute specifically gives the FISA Court the exclusive right to issue domestic spying warrants and that power has been generously exercised. There are more warrants issued by the FISA Court than by the over 1,000 district judges who sit throughout the United States in the Federal system.
So every administration since 1978 has had this super-secret court available to approve domestic spying. In the Times item above, reporting on the Monday the 19th Bush press conference, you'll note the president was asked why he felt he had to bypass this court. Heck, no one else had a problem with it. The president said it took too much time and speed was of the essence, or some such thing. Of course the law allows the spying, by wiretap or whatever, to take place without a hearing, as long as within seventy-two hours the court is notified about what was done and allowed to review what was done. What's the problem?

And it's not like these guys deny warrants, as you can see in this table (discussed here). They deny virtually nothing.

Something is up when this is not sufficient. Did Bush Domestic Spy Program Eavesdrop On American Journalists? That's possible.

Is this program, outside the law, being used to compile an "enemies list?" As Newsweek reported in their June 6 issue -
The bitter debate about John Bolton's nomination to the United Nations may have called unwelcome attention to the spying practices of the National Security Agency. Bolton told Congress last month that he asked the NSA for the names of Americans in raw intel reports. NSA rules prohibit the agency from spying on Americans; if electronic eavesdroppers inadvertently pick up American names, the NSA is supposed to black them out before forwarding reports to other agencies. But analysts and policymakers can make written requests to the NSA for U.S. names, which the State Department says Bolton did 10 times since 2001.

The Senate Foreign Relations Committee asked for more information about Bolton's requests, but the administration refused, leading to last week's vote to delay Bolton's nomination. Meanwhile, the Senate intelligence committee's chairman, Pat Roberts, and its top Democrat, Jay Rockefeller, got a closed-door briefing on Bolton's NSA dealings from the deputy intel czar, Gen. Michael Hayden. The senators agreed Bolton's initial NSA requests for U.S. names were legit. But the normally collegial Roberts and Rockefeller couldn't agree on whether Bolton handled the names appropriately once he received them. In dueling letters made public, the senators aired their differences. Senator Roberts argued that Democrats called unnecessary attention to intel "sources and methods" by raising Bolton's NSA dealings publicly. Rockefeller complained that Bolton sought out a State Department official whose name was supplied by the NSA "to congratulate him" - for unspecified reasons - which Rockefeller said was "not in keeping" with Bolton's request for the uncensored NSA report. Roberts said this charge was ill founded.
Something was up with that. There was lots of talk the Bolton was using the NSA intercepts to get back at people he didn't like, and who he thought were giving him and the administration grief. But the records weren't released and the matter disappeared. But now? Those people could be reporters or anyone who was making waves.

The senate did not confirm Bolton, partially because of this matter, so the president used a "recess appointment," while the senate was out of town, to name Bolton to the UN post, where he will serve, with no possible review, until after the 2006 mid-term elections, when we have a newly formed senate and it is seated. Very odd, isn't it?

But none of this matters. As of Monday, December 19th, the president is saying he will continue doing just what he as been doing, bypassing any judicial review of this domestic spying, not bothering with warrants, in order to keep us safe and free. It's for our own good. Things have changed.

Martin Garbus -
What is really happening is that the Bush Administration is seeking this moment to reverse the Nixon case and gather unto itself an unrestricted and unreviewable right to engage in domestic spying. The Supreme Court that decided United States v. U.S. District Court included Justices Douglas, Brennan, Marshall, Stewart and Powell. The Court that hears the Bush challenge will have Roberts, Scalia, Thomas, Alito and Kennedy, all of whom have shown in their previous cases great deference to the expansion of Presidential powers.

Nothing that has gone on before in this post 9-11 period, including the Patriot Act, will so drastically alter the rights of Americans to be free of governmental intrusion than a reversal of that landmark decision prohibiting government surveillance without a warrant.
But a reversal of the Nixon decision gets us back to the good old days. Nixon was piker compared to these folks.

As for Roberts, Scalia, Thomas, Alito and Kennedy deferring to the idea of an executive branch that should not be subject to the law, well, the new nominee, Alito, has already ruled in the Sixth Circuit that the president is kind of special in a way. Congress may pass the laws, but the president was inherently protected "from congressional pilfering." (That nomination had little to do with Roe v Wade, as you see.)

Besides, Congress Gave President The Authority To Spy On Americans - the Attorney General said so on the Today Show on Monday, December 19th, so it must be so.

Of course that's news to one senator -
Sen. Russell Feingold (D-Wis) responded to Gonzales' comments in an NBC interview this morning. "This is just an outrageous power grab," he said. "Nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror, including myself who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States. "There's two ways you can do this kind of wiretapping under our law. One is through the criminal code, Title III; the other is through the Foreign Intelligence Surveillance Act. That's it. That's the only way you can do it. You can't make up a law and deriving it from the Afghanistan resolution. "The president has, I think, made up a law that we never passed," said Sen. Russell Feingold (D-Wis.).
Yep, he has, but what are you going to do about it, Russ? The game is over. The good old days (before Nixon's attorneys blew it) are back.

Posted by Alan at 14:51 PST | Post Comment | Permalink
Updated: Monday, 19 December 2005 14:59 PST home

Sunday, 18 December 2005

Topic: Announcements

Wrapping it all up and adding photographs...

The new issue of Just Above Sunset, the weekly magazine-style parent site to this daily web log, is now online. This is Volume 3, Number 51 for the week of Sunday, December 18, 2005 - and contains extended and corrected versions of what first appears here, along with a wealth of new materiel. Think of it as a "week in review" - with new columns from London and Paris and lots of snazzy photography.

This has been an extraordinary week, from the major national and international stories, to some seasonal and local. The elections in Iraq went extraordinary well, even if the speeches explaining everything were dreary, but that was balanced by word of some odd things - the military keeping files on those who disagree with the administration, the sudden change in our policy on torture, the Patriot Act going down is flames (although it may rise again, Phoenix-like), and the president saying, flat out, he ordered an agency to ignore the existing and quite clear law and spy on Americans in America. There's much here on the legal theory that is being used to justify that.

Here in California we had an execution the stirred up a great deal of controversy, and the final life and death decision was in the hands of one man, the former movie star from all those films about vengeance and death. That's odd, but we put him in office. Nationally the "Christmas Wars" raged on, such is they are, and this last week they turned oddly Germanic, as in the Germany of the late thirties. That too was peculiar. There's lots of detail here.

The International Desk? This week from London Mike McCahill writes on both that extraordinary fire and the political fires smoldering there, while Ric Erickson provides two photo essays from Paris, one intimate (the little accordion shop) and one scenic (what's new at the Place de la Concorde).

Bob Patterson returns with a flurry of droll year-end questions from the World's Laziest Journalist, along with some thank-you notes, and in his role as Book Wrangler muses on the relationship of age and writing talent.

This week's photography has no overarching theme or single location, but you get a hummingbird caught in flight, and, for the season, some streets and vistas unlike those anywhere else in the world (well, it's Hollywood), and a bouquet of extraordinary blooms.

Given all that happened in the last seven days, it was hard to resist offering an array of entertaining quotes about politicians, so no resistance was offered, and that's what you get this week.

Direct links to specific pages -

Current Events ______________________

Lame Guesses: Teeing Up the Week - Which of these news stories will you be talking about tomorrow?
The Passing Parade: Incremental Changes and More of the Same
The Night of the Full Moon: Giving In When You're Looking Good
Governance: The Founding Fathers Superceded by John C. Yoo
Saturday Showdown: The Illegal Is Justified

Other Matters ______________________

Jurisprudence and Prudence: Justice in the State Governed by Former Movie Stars
The Christmas Wars: The Jewish Problem

The International Desk ______________________

Our Man in London: Roasting Chestnuts, and An Open Fire
Our Man in Musical Paris: Time for Chili
Our Man in the Heart of Paris: Cold Wheels

Bob Patterson ______________________

WLJ Weekly: from the desk of the World's Laziest Journalist - Fact Finding Isn't As Easy As It Seems
Book Wrangler: You're Never Too Young (Or Too Old) To Start A Writing Career

Southern California Photography ______________________

Hummingbirds: Motion Capture
Christmas Streets
Botanicals: Roses and More

Quotes for the week of December 11, 2005 - On Politicians

And that hummingbird in flight -

Posted by Alan at 15:39 PST | Post Comment | Permalink
Updated: Sunday, 18 December 2005 15:43 PST home

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