Breaking everywhere the past week: 29-year-old former CIA IT guy and defense contractor Edward Snowden reveals to Glenn Greenwald that the NSA has been indiscriminately collecting everyone’s phone records and gouging into the data networks of Apple, Google, Facebook, and other mainstays of today’s social media. “The Prism program allows the NSA, the world’s largest surveillance organisation, to obtain targeted communications without having to request them from the service providers and without having to obtain individual court orders.”
Sadly, this isn’t all that surprising. There have been intimations that the NSA has been up to no good — even beyond the warrantless wiretap fiasco under Dubya — since that weird visit to John Ashcroft’s hospital bed. Nor, sadly, is it all that surprising that — despite saying exactly the opposite in 2007 — our current President is both fine with these surveillance practices and authorizing them. (And at least from my perspective, the idea that getting the rubber stamp approval of a secret FISA court that never says no makes it all ok does not hold water.)
This is exactly what I was talking about last update. Obama acts tortured about continuing all of Dubya’s most terrible civil liberties violations, but then goes ahead and does them anyway. For Crom’s sake, he’s even picked James Comey, the guy who approved warrantless wiretaps back in 2006, to be the new FBI chief. And because this president and this administration is so brazenly two-faced about their anti-terror policies, you end up with disturbing polls like this:
For example, in the Senate: On one hand, we have Ron Wyden, Mo Udall, and Jeff Merkley calling out Obama for continuing with this extra-legal, ginormous-net approach to surveillance. “‘As far as we can see, all of the useful information that it has provided appears to have also been available through other collection methods that do not violate the privacy of law-abiding Americans in the way that the Patriot Act collection does,’ Udall and Wyden said.”
On the other hand, here’s ostensibly Democrat Dianne Feinstein yesterday going full Body Snatcher about Snowden: “‘I don’t look at this as being a whistle-blower,’ Sen. Dianne Feinstein (D-Calf.) said. ‘I think it’s an act of treason.‘” (FWIW, John Boehner and Lindsey Graham were right there with her.) Of course, it’s never “treason” when Feinstein continually does it, and, in any case, this wasn’t breaking news either: The senior Senator from California has long been a quintessential “symbol of the worthless Beltway Democrat.”
This revealing breeze stirred by the NSA revelations is coursing through media outlets too. On one hand, Slate‘s Fred Kaplan has — quite correctly — called for James Clapper’s resignation, given that he flat-out lied to Congress: “We as a nation are being asked to let the National Security Agency continue doing the intrusive things it’s been doing on the premise that congressional oversight will rein in abuses. But it’s hard to have meaningful oversight when an official in charge of the program lies so blatantly in one of the rare open hearings on the subject.” Spot on.
Meanwhile, TPM’s Josh Marshall, who likes to pretend his blog is a font of independent thinking, hems and haws about it all in classic pusillanimous Village-think fashion, all the while making sure never to say anything that might harm his establishment respectability. “I’ve made clear that I don’t see Manning as a hero or a whistleblower or really anything positive at all…Pretty early I realized that to his supporters Manning was a whistleblower who was being persecuted by the government, almost like a political prisoner or prisoner of conscience.” No, Josh, it doesn’t “seem” that way “to his supporters” — That is in fact what is %#%@ happening.
In any case, so as not to fall into the same trap, I’ll just say it outright: First, if Snowden and Manning are traitors, then so is Daniel Ellsberg and so, for that matter, is Dianne Feinstein and any other politician or government official who leaks when it’s convenient. (Also, sorry, folks. there is no substantive difference between revealing secrets to the criminal Julian Assange or to the venerable Bob Woodward. But please do let me know when Richard Armitage is put in a sweatbox for 23 hours a day.)
Second, this vast surveillance apparatus NSA has been constructing is both obviously overkill and clearly legally and constitutionally repugnant, and if this president lived up to even half the rhetoric he continually espoused before he was elected, he would have ended it years ago. Quite frankly, the doubletalk from him, and from so many other Democrats about these revelations so far, is both inexcusable and out-and-out pathetic.
“Our previous opinions make clear that customary international law is not federal law and that the president is free to override it at his discretion,” said the memo written by John Yoo, who was then deputy assistant attorney general for the Office of Legal Counsel.” (Nor, apparently, does the Fourth Amendment apply.) An unsettling memorandum by Dubya stooge John Yoo which advocates both dictatorial rule and the legality of torture is released to the public, five years later. “‘The whole point of the memo is obviously to nullify every possible legal restraint on the president’s wartime authority,’ Jaffer said. ‘The memo was meant to allow torture, and that’s exactly what it did.‘”
And, just in case anyone was under the impression that this sort of thing only happened in the dark days of 2003, witness Attorney General Mukasey last week getting publicly verklempt and making up 9/11 tales as he goes along, all to help preserve the NSA’s warrantless wiretaps. At this point, Chuck Schumer has a lot to answer for.
“I think what I said was that we could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion.” The honeymoon is way over. In congressional testimony yesterday, Attorney General and theoretical straight-shooter Michael Mukasey announces he won’t look into waterboarding, won’t look into the warrantless wiretaps, and won’t enforce the persecuted prosecutor contempt citations. His rationale for all this? If the Justice Department says it’s ok, it’s not illegal. “That would mean that the same department that authorized the program would now consider prosecuting somebody who followed that advice.” Sigh…it’s enough to make one miss Alberto Gonzales. Ok, not really.
“The grim truth is, not much has changed. The Bush administration continues to limit our basic freedoms, conceal its own worst behavior, and insist that it does all this in order to make us more free.” As a follow-up to her 2006 list of civil liberties violations, Slate‘s Dahlia Lithwick surveys The Bush Administration’s Top 10 Stupidest Legal Arguments of 2007.
“James B. Comey, the straight-as-an-arrow former No. 2 official at the Justice Department, yesterday offered the Senate Judiciary Committee an account of Bush administration lawlessness so shocking it would have been unbelievable coming from a less reputable source.” By way of Medley, the WP blanches at a ridiculous attempt by then-White House counsel Alberto Gonzales to secure warrantless wiretaps against the will of the Justice Department. “Having failed, they were willing to defy the conclusions of the nation’s chief law enforcement officer and pursue the surveillance without Justice’s authorization. Only in the face of the prospect of mass resignations — Mr. Comey, FBI Director Robert S. Mueller III and most likely Mr. Ashcroft himself — did the president back down.“
“Whenever the courts push back against the administration’s unsupportable constitutional ideas…the Bush response is to repeat the same chorus louder: Every detainee is the worst of the worst; every action taken is legal, necessary, and secret. No mistakes, no apologies. No nuance, no regrets. This legal and intellectual intractability can create the illusion that we are standing on the same constitutional ground we stood upon in 2001, even as that ground is sliding away under our feet.” Slate‘s Dahlia Lithwick surveys the top ten most outrageous civil liberties violations of 2006.
“It’s something that’s been bothering me for quite some time, the direction in which the party has been going more and more toward big government and disregard toward privacy and civil liberties.” Staunch conservative, defender of civil liberties, and Borat cameo Bob Barr leaves the Republican Party (for the Libertarians.) Now if only Susan Collins and Olympia Snowe would follow his example…
“We should see the administration’s bill for what it is: a shattering assault on our constitutional system of checks and balances. It seeks to inaugurate an age of presidential supremacy over fundamental rights, without effective control by Congress or the courts. The Senate should reject it decisively when it comes to the floor in the coming weeks.” Yale professor Bruce Ackerman decries Dubya’s recent wiretapping bill, which recently passed out of committee on a party-line vote. (Thanks, Arlen.)
“Despite the Administration’s stonewalling, the Judiciary Committee, which knows even less about the program than the Intelligence Committee, today approved legislation that would not only legalize a program that the Committee does not understand but would also completely gut the FISA law…Expanding executive power at the request of a president who has shown such deep disrespect for the rule of law is exactly the wrong thing to do.” Checks and balances? Bah, humbug. At Dubya’s mandate — and despite Democratic attempts to limit the damage — Spineless Specter and the GOP members of the Senate Judiciary Committee approve legislation legalizing the NSA’s warrantless wiretap program. As the ACLU summed it up: “Today, the Senate Judiciary Committee acted as a rubber stamp for the administration’s abuse of power.” For shame.
After fierce debate among the neocons, Dubya comes clean about the CIA’s secret prisons (outed by the Post last November) and moves the detainees held therein to Gitmo. But don’t think this moment of clarity means King George is playing it straight just yet: He’s also asking Congress to sidestep recent court decisions and grant him power to continue wiretapping without warrants and to torture alleged evildoers with impunity. And even moderate Republicans and military lawyers have issues with his recent attempts to deny suspected terrorists due process.
Update: Slate‘s Dahlia Lithwick has more: “The speech teemed with all the rhetorical wizardry you might expect of a do-over. Bush justified torture and extraordinary rendition while denying that they exist. He stuck a fork in the eye of the Supreme Court while agreeing to be bound by the majority’s decision. He conceded that Congress should play a role in creating military tribunals while demanding that it greenlight his plan.“
“This report raises serious concerns crucial to the survival of our democracy…If left unchecked, the president’s practice does grave harm to the separation of powers doctrine, and the system of checks and balances that have sustained our democracy for more than two centuries.” Then, again, I could be sold on the merits of bar associations…if they continue to call out Dubya for trampling on our Constitution.
“If another nation’s leader adopted such positions, the United States would be quick to condemn him or her for violating fundamental tenets of the rule of law, human rights, and the separation of powers. But President Bush has largely gotten away with it, at least at home, for at least three reasons. His party holds a decisive majority in Congress, making effective political checks by that branch highly unlikely. The Democratic Party has shied away from directly challenging the president for fear that it will be viewed as soft on terrorism. And the American public has for the most part offered only muted objections. These realities make the Supreme Court’s decision in Hamdan v. Rumsfeld, issued on the last day of its 2005-2006 term, in equal parts stunning and crucial.” In related news, as seen at both Salon and Mother Jones (as well as the New York Review of Books), author and law professor David Cole underlines the importance of the Hamdan decision in preserving the rule of law and throttling Dubya’s unchecked power grabs of late.
“[I]f Specter’s bill prevails, it will amount to a White House masterstroke, precisely what James Madison had in mind when he described the dangers of unchecked rule by one branch of government: ‘the very definition of tyranny.’” Having read the legislation in full, author and wiretap expert Patrick Radden Keefe discovers, perhaps not surprisingly, that Specter’s recent NSA “compromise” is a complete capitulation to executive power. And, in very related news, file this under “repeated injuries and usurpations“: Attorney General Alberto Gonzales testified under oath this week that it was Dubya’s personal decision to close down the Justice Department’s probe into the NSA’s warrantless wiretaps (the one, you may recall, that couldn’t get the security clearances to do its job.)
Meanwhile, in another recent reversal — one likely precipitated by both the Hamdan case and pending lawsuits by the ACLU and others — the Dubya White House agrees to a deal put forth by Arlen “paper tiger” Specter that would put the NSA warrantless wiretaps to a constitutional review by the FISA court. But the trick, as many Dems have pointed out, is under this deal the FISA court would only do a general review of the wiretap program, rather than conduct the individual case-by-case reviews that the law has always demanded: “Sen. Russell Feingold (D-Wis.) criticized the agreement, saying he will oppose ‘any bill that would grant blanket approval for warrantless surveillance of Americans, particularly when this administration has never explained why it believes that current law allowing surveillance of terrorist suspects is inadequate.’“