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Bush and his thugs make the world safe for wiretaps

On Tuesday, former Deputy Attorney General James Comey related his Shakepearean tale of George Bush's thugs and the botched hospital/wiretap caper. Bush's two hardnosed consiglieri—Al "Recollections" Gonzales and Andy "Screws" Card—descended on a comatose John Ashcroft to extract legal indulgences for their NSA sins, and only the FBI could fend them off.  But then something about the wiretap program was changed (sorry, can't tell you what, it's secret) to something else (sorry, also secret) to keep Ashcroft and Comey from resigning. Nevertheless, Bush continued to break the law and ignore the Constitution. (Marty Lederman tells the tale in full here.)

Today, Bush appeared at a mutual-admiration "press availability" with Tony Blair, and Kelly O'Donnell of NBC News asked him about Comey's story. He stonewalled, as usual. Did not answer the direct question about his involvement. Changed the subject to the necessity of the NSA warrantless-wiretap program. Security, you know. 9/11, 9/11, 9/11. Terrorists, terrorists, terrorists. We have nothing to fear but the diminution of fear. The actual words:

Q [O'Donnell] There's been some very dramatic testimony before the Senate this week from one of your former top Justice Department officials, who describes a scene that some senators called "stunning," about a time when the wireless -- when the warrantless wiretap program was being reviewed.  Sir, did you send your then Chief of Staff and White House Counsel to the bedside of John Ashcroft while he was ill to get him to approve that program?  And do you believe that kind of conduct from White House officials is appropriate?

PRESIDENT BUSH:  Kelly, there's a lot of speculation about what happened and what didn't happen; I'm not going to talk about it.  It's a very sensitive program.  I will tell you that, one, the program is necessary to protect the American people, and it's still necessary because there's still an enemy that wants to do us harm.

And therefore, I have an obligation to put in place programs that honor the civil liberties of the American people; a program that was, in this case, constantly reviewed and briefed to the United States Congress. And the program, as I say, is an essential part of protecting this country.

And so there will be all kinds of talk about it.  As I say, I'm not going to move the issue forward by talking about something as highly sensitive -- highly classified subject.  I will tell you, however, that the program is necessary.

Q [O'Donnell] Was it on your order, sir?

PRESIDENT BUSH:  As I said, this program is a necessary program that was constantly reviewed and constantly briefed to the Congress.  It's an important part of protecting the United States.  And it's still an important part of our protection because there's still an enemy that would like to attack us.  No matter how calm it may seem here in America, an enemy lurks.  And they would like to strike.  They would like to do harm to the American people because they have an agenda. They want to impose an ideology; they want us to retreat from the world; they want to find safe haven.  And these just aren't empty words, these are the words of al Qaeda themselves.

And so we will put in place programs to protect the American people that honor the civil liberties of our people, and programs that we constantly brief to Congress.

There were no followups. Bush speaks of "a lot of speculation." No, not speculation, it was sworn testimony by a well-regarded Justice official, and if Bush has contrary information, he should correct the record. But he stonewalls instead. He knows that Comey is speaking the truth, and therefore he changes the subject. O'Donnell's question is about Bush's involvement and appropriate conduct for government officials. His response is a canned appeal to fear and a hypocritical pledge to support civil liberties and openly brief Congress.

The NSA program is not transparent, even to those members of Congress who are trying to conduct proper oversight. And it is deeply inimical to civil liberties. But O'Donnell's question did not concern the NSA program. She asked Bush whether he sent the thugs and whether he approves of thuggery. We may infer from his silence that the answers are yes and yes.

NM-01 House Election: Bush and Eavesdropping

New Mexico 1: Albuquerque and suburbs (map)
Democrat: Patricia Madrid, state attorney general
Republican: Heather Wilson, incumbent since 1999 (2004: won 54%–46%)
Poll D +9: Madrid 53%, Wilson 44% (10/29)
Outlook: leans Democratic ▲ (from tossup)
Post updated: November 1
Final result (11/21): Republican 50.4%, Democrat 49.6%

Albuquerque, New Mexico, is an unlikely home for a Republican representative. Both John Kerry and Al Gore won in this 1st District, and the population is 43% Latino, 4% Native American, and 3% African American—not fertile ground for the GOP. But Heather Wilson has held this seat for 8 years by appearing to be less rigidly partisan than George Bush, with a few judiciously non-Republican moves, and in this campaign she is trying to maintain some distance between herself and the unpopular George Bush by tacking slightly left on a few issues.

Wilson, an ex–Air Force officer,  is faced this year with a formidable opponent in Patricia Madrid (photo), the well-regarded state attorney general. And Madrid has some real issues to use against the incumbent: Wilson says she questioned the Iraq War but voted for it anyway, supported a pharma-friendly prescription drug plan, and failed to use her post on the House Intelligence Committee to investigate NSA wiretapping. Wilson has also accepted $65,000 in tainted campaign contributions from groups linked to lobbyist Jack Abramoff and indicted congressmen Duke Cunningham and Tom DeLay.

No Hereditary Kings

Judge Anna Diggs Taylor ruled today that the Bush administration's NSA wiretapping is unconstitutional. Congress established the FISA court, from which warrants can be readily obtained when required, and the National Security Agency has that legal avenue available to combat terrorists or any other enemies of the US. But Judge Taylor pointed out (complete PDF here) that wiretapping without court approval is illegal according to the FISA act, and unconstitutional according to the First and Fourth amendments:

It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court's duty to ensure that power is never "condense[d] … into a single branch of government."…

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all "inherent powers" must derive from that Constitution.

The decision will be appealed, and the reactionary Sixth Circuit Court seems likely to overturn it. But if the Supreme Court then hears the case, it may well agree with Judge Taylor, given its recent Hamdan decision, which considered some of the same issues of untrammeled executive power. Glenn Greenwald has a brief summary at Salon and a more thorough analysis at Unclaimed Territory, where he writes that the decision

is rather straightforward -- and sometimes eloquent -- in its almost always unequivocal rejection of the Bush administration's arguments:…

[T]he court rejected the administration's assertion of the "state secrets" doctrine.…

[T]he court ruled … that warrantless eavesdropping violates the Fourth Amendment's prohibition on unreasonable searches and seizures … that the NSA program violates the plaintiffs' First Amendment rights … that the Executive's powers in the national security area do not entitle him to act beyond the law or the Constitution, and that courts are empowered under our Constitution to enjoin and restrict the exercise even of national security powers, even in times of war, when the President's conduct violates the law or the Constitution.

Finally, and really quite extraordinarily, the court (a) declared the NSA program to be in violation of FISA, the First Amendment and Fourth Amendment and (b) issued a permanent injunction enjoining the Bush administration from continuing to eavesdrop in violation of FISA.

Jack Balkin is more concerned than Greenwald that there may be some legal and logical holes in the decision, though he agrees with the outcome. And at SCOTUSblog, Lyle Denniston examines some of the findings in detail:

In her rulling on the 1978 law governing electronic eavesdropping of foreign intelligence, Taylor said that the law provides the "exclusive means" for such wiretapping of U.S. individuals -- it must be done with a warrant. While she noted that the law involves a number of concessions to Executive Branch needs, she said those "have been futile.…"

In finding that the NSA program of intercepts of domestic communications is also unconstitutional, the judge remarked: "The President of the United States, a creature of the same Constitution which gave us these [First and Fourth] Amendments, has undisputedly violated the Fourth by failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment rights of these plaintiffs as well."

Taylor also found that the NSA program violates the constitutional concept of separation of powers.…

"In this case, the President as acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress.… [T]he separation of powers doctrine has been violated.... These secret authorization orders [for the NSA program] must ... fall."

This is not the first judicial setback for the administration on its claims of presidential power, but it is certainly the most strongly worded. In the Washington Post, Dan Eggen and Dafna Linzer write:

The ruling is the latest courtroom setback for the Bush administration's controversial anti-terrorism and detention policies, which have frequently relied on broad assertions of presidential power. In a landmark case in June, the Supreme Court rejected Bush's claims of executive power, ruling 5 to 3 that special military trials for terrorism suspects were not authorized under federal law and ran afoul of the Geneva Conventions.…

Senate Minority Leader Harry M. Reid (Nev.) and other leading Democrats hailed the ruling as a welcome check on the Bush administration. The decision shows that "no one is above the law," Sen. John F. Kerry (D-Mass.) said.

ACLU Executive Director Anthony D. Romero called the decision "another nail in the coffin" of the Bush administration's anti-terrorism strategies.

A clear case for impeachment. That will be the first order of business when Democrats assume control of Congress in a few months.

Office of Professional Irresponsibility

What was Alberto Gonzales thinking today when he failed to cover up for George Bush? Doesn't he know that his job as attorney general is to deflect any responsibility, any possible culpability from his boss? He must have forgotten, because when he testified before the Senate Judiciary Committee, he pointed a finger right at Bush, saying that it was the president's decision to keep his illegal NSA spy program under wraps. In the words of Neil A. Lewis in the New York Times, Gonzales said that Bush "personally decided to block the Justice Department ethics unit from examining the role played by government lawyers in approving the National Security Agency’s domestic eavesdropping program."

The Office of Professional Responsibility in the Justice Department is the organization charged with determining whether the lawyers in the department are acting legally and ethically. But when OPR lawyers attempted a review of the National Security Agency's warrantless wiretapping program, they were denied the necessary level of security clearance. That decision, we learn today, was made by Bush himself. Here's the exchange between Senator Arlen Specter and Gonzales:

SPECTER: Now when you had the first line of review, Mr. Attorney General, by OPR, why wasn’t OPR given clearance as so many other lawyers in the Department of Justice were given clearance?

GONZALES: Mr. Chairman, you and I had lunch several weeks ago, and we had a discussion about this. And during this lunch, I did inform you that the terrorist surveillance program is a highly-classified program. It’s a very important program for the national security of this country –

SPECTER: Highly-classified, very important, many other lawyers in the Justice Department had clearance. Why not OPR?

GONZALES: And the President of the United States ultimately makes decisions about who ultimately is given access –

SPECTER: Did the President make the decision not to clear OPR?

GONZALES: As with all decisions that are non-operational in terms of who has access to the program, the President of the United States makes the decision because this is such an important program –

SPECTER: I want to move on to another subject. The President makes the decision and that’s that.

Specter seemed almost embarrassed that Gonzales would place the responsibility on Bush, and he moved the discussion along to other topics. Specter's avoidance of the subject is not surprising, since he is complicit. He capitulated to Bush last week by agreeing to submit a bill that would allow a one-time review of the NSA program by the Foreign Intelligence Surveillance Act Court, but at the price of allowing the program to continue without oversight. Some journalists depicted Specter's agreement with Bush as a compromise, but the Washington Post editorial board enumerated the dangers:

The bill's most dangerous language would effectively repeal FISA's current requirement that all domestic national security surveillance take place under its terms. The "compromise" bill would add to FISA: "Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers." It would also, in various places, insert Congress's acknowledgment that the president may have inherent constitutional authority to spy on Americans. Any reasonable court looking at this bill would understand it as withdrawing the nearly three-decade-old legal insistence that FISA is the exclusive legitimate means of spying on Americans. It would therefore legitimize whatever it is the NSA is doing -- and a whole lot more.

Bush has said that he has repeatedly approved the unconstitutional NSA program, and now we learn that he also halted any internal investigation. New name for Oval Office: the Office of Professional Irresponsibility.

Update, 7/19: Dan Froomkin of the Washington Post points out that Bush's move "comes in stark contrast to the enthusiastic way in which security clearances were dished out to a different group of attorneys: Those charged with finding out who leaked information about the program to the press." He adds:

It is not common for a president to personally intervene to stop an investigation of his own administration. The most notorious case, of course, was the Saturday Night Massacre of 1973, during which President Richard Nixon ordered the firing of Archibald Cox, the special prosecutor who had been appointed to investigate the Watergate scandal. Among the many major differences, however: In that case, Attorney General Elliot Richardson and Deputy Attorney General William D. Ruckelshaus resigned rather than follow Nixon's order.

Bush's action is also another example of what I have previously noted is a consistent White House modus operandi: That time and time again, Bush and his aides have selectively leaked or declassified secret intelligence findings that served their political agenda -- while aggressively asserting the need to keep secret the information that would tend to discredit them.

When it comes to subverting the Constitution, Nixon was a piker compared with Bush, who has no shame going for broke in the power stakes. It is true that Nixon had to deal with members of Congress, including some members of his own party, who didn't like the idea of one-man rule. No Republicans today seem to have that courage.

No Man a King

Huey Long's motto, which inspired his struggling Depression-era listeners, was "Every man a king." But the Kingfish of  Louisiana didn't quite get it right. The deeply resonant American idea on this subject—part of the country's political DNA since 1776—is that all citizens are equal in the eyes of the law, that no person has the royal prerogative to choose whether to follow the law simply by virtue of his wealth or position. The motto should be: "No man a king."

George Bush doesn't get it. He has broken the law many times, but when he is caught, as with his authorization of domestic NSA surveillance without warrant, he claims that he must break the law to protect Americans from dangerous terrorists. He claims, in fact, that his authority is unlimited—whatever laws Congress may pass, whatever decisions the courts may issue, he is above the law. Until last week, with the Supreme Court's Hamdan decision, the other branches of government have not been very forceful in disabusing him of his monarchical notion. But that opinion is clear and unambiguous: The president "may not disregard" Congress or the Supreme Court.

Glenn Greenwald has been cataloging Bush's royalist tendencies nearly every day since he started his blog Unclaimed Territory last October. As a nonpolitical lawyer, liberal on some issues and conservative on others, he was comfortable that the US government's system of checks and balances would shield us from any power grab. Until recently, that is. When José Padilla, a US citizen, was arrested and imprisoned but not charged or tried or even allowed to see a lawyer for years, Greenwald realized that something out of the ordinary was going on, and he was shaken out of his complacency. He came to believe that:

a creeping extremism has taken hold of our federal government, and it is threatening to radically alter our system of government and who we are as a nation. This extremism is neither conservative nor liberal in nature, but it is driven by theories of unlimited presidential power that are wholly alien, and antithetical, to the core political values that have governed this country since its founding.

Greenwald has written a powerful book—How Would a Patriot Act?—that is a succinct, eloquent summary of the legal and political history of presidential power and a  recounting of the ways that the Bush administration has ignored the law and broken historical bounds. As the subtitle has it, he is "defending American values from a president run amok." That's American values, he stresses, not liberal or conservative values: No man a king.

After explaining his new-found sense of urgency, Greenwald examines the most blatant instance of presidential lawbreaking, NSA eavesdropping on domestic phone and data communication. The Foreign Intelligence Surveillance Act (FISA) Act of 1978 was amended in 2001 to allow additional authority to the executive branch, since the attacks of 9/11 seemed to require it, but the president was still required to obtain warrants from a special FISA court before eavesdropping within the US. Bush decided not to ask for such warrants and unlawfully initiated extensive domestic surveillance, repeatedly renewing his authorization. When the New York Times made his actions public in December 2005, he admitted the reports were correct but claimed that he had the right to do so, despite the fact that the FISA law specifically states that such actions, whether in peacetime or wartime, are federal felonies, punishable by up to $10,000 in fines and 5 years in prison for each offense.

In short, Bush broke the law, then bragged about it. Greenwald draws this conclusion:

The National Security Agency eavesdropping scandal is not an isolated act of lawbreaking. It is an outgrowth of an ideology of lawlessness that has been adopted by the Bush administration as its governing doctrine. Others include the incarceration in military prisons of U.S. citizens who were not charged with any crime or even allowed access to a lawyer, the use of legally prohibited torture techniques, and the establishment of a military detention center in Guantanamo Bay, a no-man's-land that the administration claims is beyond the reach of U.S. law. In the media and the public mind, these issues have been seen in isolation, as though they are unconnected.

In fact, all of these controversial actions can be traced to a single cause, a shared root. They are grounded in, and are the by-product of, an unprecedented and truly radical theory of presidential power that, at its core, maintains that the president's power is literally unlimited and absolute in matters relating to terrorism or national security.

Using the 2001 terrorist attacks as the justification, the Bush administration has embraced theories, generated by ideologues in its Justice Department, that are simply alien to the American system of government. The administration has claimed—and has repeatedly asserted and applied the principle—that any presidential actions relating to terrorism or security cannot be limited by Congress, the courts, or the American people. Decisions about such matters are, to quote the principal Bush administration document that legitimized these theories, "for the President alone to make."

Greenwald's brief treatment of each instance of presidential overreach is well worth reading, even for those of us who have been following the scandalous revelations all along. He unravels many of the often tangled narratives on the subject: torture, Guantánamo and Abu Ghraib, the cases of Padilla and Hamdi and Hamdan, congressional attempts to address the issues, and the media's bungled reporting. He also provides concise historical information on the framers of the Constitution and on previous presidential attempts to test the bounds of authority, and how the courts and Congress checked Truman's and Nixon's power grabs. Greenwald continues to discuss these issues daily in his blog, including extensive analysis of the Hamdan decision (here and here), which was released after the book went to press.

In the book's epilogue, Greenwald mentions another potential instance of Bush's overreaching: the threatened war on Iran, which Seymour Hersh examined in the New Yorker last April. Hersh has just published another article on Iran, which raises the question of whether Bush's latest overtures toward Iran were merely "laying the diplomatic groundwork for future military action." The only heartening information from Hersh is that the US military is pushing back against the notion of attacking Iran—and has fortunately convinced him to take the nuclear option off the table.  However, Bush clearly thinks he has the authority to attack any nation at will, so Iran continues to be in great danger. After all, he's the King of the United Kingdom of America.

Water, Water, Everywhere

This weekend the surf around Santa Cruz has not been particularly high, but that  hasn't discouraged the surfers. And the on-and-off rain hasn't either. What's a little water coming down from the sky when you're looking for large walls of water to ride? At every likely point along the central California coast, they float in packs like lolling sea lions right out where the waves are born, waiting patiently for just the right wall of seawater to carry them happily, effortlessly shoreward. From Steamer Lane to Pleasure Point, the wet-suited pleasure-seekers jockey for position, becoming one with the swell until the right moment arrives.

The surfers choose to immerse themselves again and again, for the thrill and for the sense of becoming one with nature. They love it. (For a wonderful description of the psychology and sociology of surfing, read Dan Duane's book Caught Inside, drawn from a year in the waves around Santa Cruz.)

There is another combination of board and water in the news these days, and it is far less benign. Waterboarding is an unusually sadistic form of torture imposed on American prisoners at Guantánamo, Bagram, Abu Ghraib, and throughout the secret prisons of the terror gulag. It is despicable, first, because it is imposed unwillingly. And second, because it is a most exquisite combination of physical and psychological torture, making a prisoner feel that he is drowning, over and over again. Andrew Sullivan describes exactly how waterboarding works:

It involves strapping a human being to a wooden board, tipping the board so that the victim's face is at a lower level than his feet, putting a cloth over his mouth and nose and pouring water over it to simulate drowning. It was a technique used by the Japanese in the Second World War and, famously, by the French in Algeria. In the old days, before Dick Cheney became vice-president, American soldiers found guilty of such a practice were court-martialed. No longer.

This issue is particularly relevant now because the Senate is considering George Bush's nominee for director of the CIA, General Michael Hayden, and on Friday Senator Dianne Feinstein asked him whether this variety of torture is an acceptable interrogation technique. He refused to answer, requesting instead that any discussion be deferred to private, closed session of the committee.

This refusal to disavow waterboarding (and, by extension, many other kinds of torture) is part of the broader Bush approach to secrecy, presidential power, and lawlessness. As the Washington Post editors write, "[W]hy couldn't Gen. Hayden say clearly that the technique is now off-limits?" Sullivan knows:

The executive branch views itself beyond the law, is committing war-crimes, has endorsed and practised torture and abuse, and refuses to change. I don't see how any senator can vote for a nominee who can defend that position.

This is the same man who, as head of the National Security Agency, was too ready to follow White House orders and initiate the antiterrorist eavesdropping program that led to warrantless wiretapping of domestic phone calls, in clear contravention of the Fourth Amendment to the Constitution. Hayden is willing to do what Bush and Cheney want him to do, even if it is illegal, misleading, and ineffectual. Seymour Hersh in this week's New Yorker explains the history and the significance of Hayden's actions. He quotes ex-Senator Bob Kerry, who says, "[Hayden is] willing to politicize intelligence and use false information to help the President.” Hersh writes:

[T]he N.S.A. began, in some cases, to eavesdrop on callers (often using computers to listen for key words) or to investigate them using traditional police methods. A government consultant told me that tens of thousands of Americans had had their calls monitored in one way or the other. "In the old days, you needed probable cause to listen in," the consultant explained. "But you could not listen in to generate probable cause."…

One unexamined issue [at last week's Senate hearings] was the effectiveness of the N.S.A. program. "The vast majority of what we did with the intelligence was ill-focussed and not productive," a Pentagon consultant told me.

It's the Bush pattern: break the law, keep the illegal actions secret, ignore effectiveness, and focus on loyalty to the president and to his policy of concentrating power in the White House. Michael Hayden was willing to follow that pattern at the NSA, and he appears ready to follow it again at the CIA.

Senators should deny him the opportunity, by denying him the position. Leave water and boards to the surfers.

Cheney in Chains

That's where Dick Cheney belongs—in prison, in chains. The most lawless vice president in history has failed to uphold the Constitution or the laws of the United States. The two most recent pieces of evidence concern spying on American citizens and outing a CIA officer for political reasons. Here are the details:

1. Just after the 9/11 attacks, Cheney argued that the National Security Agency should begin to intercept domestic phone calls and email messages without court warrants. Scott Shane and Eric Lichtblau report in the New York Times:

[The] strong-willed vice president and his longtime legal adviser, David S. Addington,… believed that the Constitution permitted spy agencies to take sweeping measures to defend the country. Later, Mr. Cheney would personally arrange tightly controlled briefings on the program for select members of Congress.…

As in other areas of intelligence collection, including interrogation methods for terrorism suspects, Mr. Cheney and Mr. Addington took an aggressive view of what was permissible under the Constitution, the two intelligence officials said.

If people suspected of links to Al Qaeda made calls inside the United States, the vice president and Mr. Addington thought eavesdropping without warrants "could be done and should be done," one of them said.

One odd aspect of this story is that—by blaming Cheney—it seems to exonerate General Michael Hayden, Bush's nominee for CIA chief, from the worst excesses of  NSA spying. Perhaps this represents the Bush administration's new tactic: since Cheney is already universally despised, let him take the rap for everything, and leak information to the Times to support that idea. Hayden good cop, Cheney bad cop. Cheney doesn't care, since he's effectively acting as president and doesn't plan to run for another office (we presume and hope). And if the story makes Hayden look good, he has a better chance of winning Senate confirmation.

But in any case, the NSA domestic spying is clearly illegal, and Cheney wanted to start it sooner and allow it to be more inclusive than anyone else did.

2. Cheney was involved from the beginning with Scooter Libby's attempt to discredit Joseph Wilson. In fact, he was probably running the whole nefarious operation. After Wilson reported privately to the CIA that Saddam Hussein did not acquire uranium from Niger, George Bush said publicly that he did, in order to ratchet up the scare meter for the invasion of Iraq.

Wilson then wrote an op-ed in the New York Times to rebut Bush publicly. Cheney read the piece and scribbled questions in the margin, probably as instructions to his now-indicted aide Libby, and the prosecutor has now made clear Cheney's involvement, as R. Jeffrey Smith writes in the Washington Post:

The filing by special prosecutor Patrick J. Fitzgerald is the second that names Cheney as a key White House official who questioned the legitimacy of Wilson's examination of Iraqi nuclear ambitions. It further suggests that Cheney helped originate the idea in his office that Wilson's credibility was undermined by his link to [Wilson's wife, CIA officer Valerie] Plame.…

Fitzgerald does not allege in his filing that Cheney ordered Libby to disclose Plame's identity. But he states that Cheney's note to Libby helps "explain the context of, and provide a motive for" many of the later statements and actions by Libby. Libby was indicted last year for making false statements to FBI agents, obstruction of justice and perjury, mostly based on Libby's testimony that he did not confirm Plame's involvement in conversations with the two journalists.…

"Have they done this sort of thing before?" Cheney wrote. "Send an amb[assador] to answer a question? Do we ordinarily send people out pro bono to work for us? Or did his wife send him on a junket?"

Fitzgerald's filing states that Libby learned of Plame's name from Cheney.… Fitzgerald asserts that those conversations -- and earlier ones sparked by a May 2003 column about the trip in the Times -- help demonstrate that Libby's "disclosures to the press concerning Mr. Wilson's wife were not casual disclosures."

There was nothing casual about Cheney's actions, and he should receive appropriate punishment. As ex-president George H. W. Bush said in a 1999 speech to the CIA: "I have nothing but contempt and anger for those who betray the trust by exposing the name of our sources. They are, in my view, the most insidious of traitors."

Life imprisonment in SuperMax sounds right to me, in the cell next to Zacarias Moussaoui.

Quote of the Week: Arlen Specter

Senator Arlen Specter, Republican of Pennsylvania, was frustrated with his fellow Republican George Bush this last week. He couldn't get a straight answer about the National Security Agency's extensive wiretapping program, which is supposed to protect Americans against terrorists but seems instead to be directed against Americans who are opposed to Bush. I say "seems" because Bush refuses to tell anybody anything about the NSA. His mantra is: "Trust me." His stance is: "I am above the law."

On Thursday, Specter threatened to use the only power he still has, the power of the purse, and deny funding to the NSA until Bush is more forthcoming. Specter said:

Institutionally, the presidency is walking all over Congress at the moment. If we are to maintain our institutional prerogative, that may be the only way we can do it.…

It is true that we have no assurance that the president would follow any statute that we enact.

In other words, implies a prominent Republican senator, the president believes he is above the law, and there may now be nothing we can do to stop him from assuming dictatorial powers. Specter's shocking final sentence, all but conceding Bush's blatant disregard for law and Constitution, did not get wide coverage in the American media. Most stories about Specter's frustration did not include it, and I would have missed it myself if my brother Frank had not alerted me to it. I quoted it in a note on Thursday, but it seems to have nearly disappeared elsewhere, so I decided to highlight it again today.

The sentence was included in update 3 of an Associated Press story by Laurie Kellman headlined "Sen. Specter Threatens to Block NSA Funds," but later updates of the story omitted it, and by Friday (except for other blogs) I could find it in only three places on the web: an MSNBC version, a Forbes version, and a Guardian version of Kellman's article. I did not conduct a LexisNexis search, so there may be a few other instances, but the principal US national newspapers and other TV networks apparently censored it. Did they do so because they failed to see the significance of Specter's statement? Or were they threatened by the Bush administration? Or were they merely careless?

In October 2003, historian Kevin Baker, writing in Harper's, expressed the concern that "we are not far from the day when, like the Roman Senate in 27 BC, our Congress will take its last meaningful vote and turn over power to a military dictator." If Specter is right, that day may be sometime in AD 2006.

Update: I have learned that on Thursday the Washington Post apparently included the "no assurance" sentence in an early version of an article by Walter Pincus and Charles Babington (headlined "Specter Wants More Debate on Spying") but omitted the sentence in later versions. A commenter to Joel Achenbach's Thursday blog on the Post website  ("Bush the Worst President?") quotes the sentence and references the URL to the Pincus-Babington article. If you follow that URL, you will no longer find the offending statement. Clearly, the Post thought the sentence was too hot to handle and removed it by Friday's edition. It's either censorship or extremely poor editorial judgment.

Quote of the Week: Louis Brandeis

Let us stipulate that George Bush and Dick Cheney are not hypocrites, that in their heart of hearts (no jokes, now) they want only the best for the citizens of the United States—peace, freedom, health, prosperity. Let us stipulate, to take it one step further, that they want only the best for human beings everywhere.

I admit that there is abundant evidence to the contrary, but suspend your disbelief for a moment. Their intentions are pure, we shall suppose. Only the best, for everyone.

It would not be enough. Here's what Justice Louis Brandeis had to say about that:

Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.

Whether Bush and Cheney's mad policies and destructive actions stem from a pleasure in doing evil, from a Machiavellian love of power, or (as stipulated) from a misplaced idealism, the effects are equally pernicious, equally murderous. Corruption, warmongering, illegality, injustice, lying. That's what they do, this week and every week, and it doesn't matter if they mean well. By their fruits ye shall know them.

So the Brandeis quote is applicable to current events, though it was written in 1928. Channel-surfing, I came across the venerable Birch Bayh speaking on C-SPAN. One-time Democratic senator from Indiana, Bayh in his time was instrumental in the adoption of Title IX, requiring equal treatment in sports for women, and Constitutional Amendment 26, lowering the voting age to 18.

Bayh quoted the famous Supreme Court dissent by Brandeis in the case Olmstead v. United States, in which Chief Justice (and former president) William Howard Taft found for the majority that the government was justified in wiretapping the telephones (all eight of them! with separate lines!) belonging to suspected bootlegger Roy Olmstead and his many Seattle-area associates. It was the era of Prohibition, remember, and many of the intercepted calls were to Vancouver, BC (long-distance calls! to foreigners!), from which the nefarious liquor was shipped. Taft, originalist that he was, knew that the Fourth Amendment stricture on warrantless search could not possibly apply to telephones, because Thomas Jefferson didn't have a telephone.

Brandeis disagreed, though the case was not reversed until 1967. But you see the relevance. In 2006, the  National Security Agency is conducting warrantless surveillance (maugre the Fourth Amendment!) on thousands or tens of thousands of telephones and other electronic devices (with computers! of which Thomas Jefferson had zero!), and Bush has admitted that he repeatedly approved this blatant illegality (more than 30 times!).

You'd almost think Brandeis was speaking directly to Bush—man of zeal, well-meaning, but without understanding.

Unless, of course, Bush is not well-meaning. In which case sentence number two of the quote is operative.

Exodus of Experts

A gang that can't shoot straight doesn't want any expert marksmen around to criticize. The very presence of a competent person casts a shadow on the incompetent.

That's why the Bush administration has been getting rid of those people who know what they're doing, at an unprecedented rate. Some are fired, some are driven away, some are threatened into silence. They may have expressed an uncomfortable truth, or suggested a better way of doing things, or merely indicated insufficient loyalty to the Mayberry Machiavellis who continue to run the government.

Loyal cronies, many without experience or training, are hired to fill the slots. And when they commit epic blunders, like Iraq or Katrina, they are rewarded with medals or complimented with presidential heck-of-a-jobs. Finally, the blunders, avoidable though they were, are depicted as the inherent and predictable shortcomings of government itself, which we must now drown in a bathtub to take it out of its misery.

The scattershot misery is real, and it does not belong solely to the government experts who lose their jobs. There is a much wider circle of victims:

• American citizens, doomed to three more years of mission-accomplished propaganda and lethal incompetence, thanks to our own electoral ignorance
• non-Americans everywhere, who must defend themselves against the unpredictable, blundering empire
• the 1,321 people who died, and the 2 million who were displaced, as a result of Katrina and the FEMAtose response
• the 2,267 American soldiers and 100,000 Iraqis who have died as a result of Bush's arrogant adventurism and lack of planning in Iraq

The misery is a direct result of placing politics before policy, loyalty before competence, power before stewardship. And now that the US has become the most feared, most hated nation on earth, it is particularly crucial to retain experts who are able to protect against the inevitable retaliatory terrorist attacks, experts (for example) in the Central Intelligence Agency. Even that essential minimum, however, is too much for Mr Bush and his hand-picked CIA lackey, Porter Goss. In the London Times, Sarah Baxter and Michael Smith report (via Andrew Sullivan):

The CIA’s top counter-terrorism official was fired last week because he opposed detaining Al-Qaeda suspects in secret prisons abroad, sending them to other countries for interrogation and using forms of torture such as “water boarding”, intelligence sources have claimed.

Robert Grenier, head of the CIA counter-terrorism centre, was relieved of his post after a year in the job. One intelligence official said he was “not quite as aggressive as he might have been” in pursuing Al-Qaeda leaders and networks.

Vincent Cannistraro, a former head of counter-terrorism at the agency, said: “It is not that Grenier wasn’t aggressive enough, it is that he wasn’t ‘with the programme’. He expressed misgivings about the secret prisons in Europe and the rendition of terrorists.”

Grenier also opposed “excessive” interrogation, such as strapping suspects to boards and dunking them in water, according to Cannistraro.…

Since the appointment of Goss [as director], the CIA has lost almost all its high-level directors amid considerable turmoil.

AB “Buzzy” Krongard, a former executive director of the CIA who resigned shortly after Goss’s arrival, said the leaks were unlikely to stop soon, despite proposals to subject officers to more lie detector tests.

Krongard said it was up to President George Bush to stop the rot. “The agency has only one client: the president of the United States,” he said. “The reorganisation is the way this president wanted it. If he is unwilling to reform it, the agency will go on as it is.”

“History will judge how good an idea it was to destroy the teams and the programmes that were in place.”

History will have plenty of data for making its judgment, because Grenier is but one of many experts to leave the government in the last few years. At TomDispatch, Nick Turse has been keeping score, and he has so far totted up 243 "top officials as well as beleaguered administrators, managers, and career civil servants who quit their government posts in protest or were ridiculed, defamed, threatened, fired, forced out, demoted, or driven to retire by Bush administration strong-arm tactics, cronyism, and disastrous policies."

This "war with the bureaucracy" shows no signs of waning. Here are a few of the cases Turse describes:

Jack Goldsmith: A former assistant attorney general who, after working in the general counsel's office at the Pentagon, was tapped to head the Justice Department's powerful Office of Legal Counsel (OLC) -- known as the "mini Supreme Court" of the executive branch. There, his opinions against torture, among other principled stands, brought him into direct conflict with David Addington, formerly counsel (now chief of staff) to Vice President Dick Cheney. He became "a rallying point for Justice Department lawyers who had legal qualms about the administration's stance" that the President had near-absolute power and "the central figure in a secret but intense rebellion of a small coterie of Bush administration lawyers." All of this eventually led him to leave "his post in George W. Bush's Washington to become a professor at Harvard Law School." Resigned, Summer 2004.

James Comey: A former prosecutor and Bush nominee who served as deputy attorney general from 2003-2005. In December 2003, after then-U.S. Attorney General John Ashcroft recused himself from a probe into the leak of CIA officer Valerie Plame's identity (meant to discredit her husband, Joseph C. Wilson IV, a former diplomat who challenged White House justifications for the Iraq war), Comey appointed dogged special prosecutor Patrick J. Fitzgerald. Then, during Ashcroft's hospitalization in March 2004, as acting Attorney General -- and on the advice of his national-security aide Patrick Philbin as well as Goldsmith -- he further endeared himself to the administration by refusing to reauthorize the President's illegal spying program, angering White House figures from Addington to President Bush (who began referring to Comey with various "put-down nicknames"). Resigned, Summer 2005.

Russell Tice: A former intelligence agent with the National Security Agency and the Defense Intelligence Agency (DIA), Tice worked at the NSA up until May of 2005 when, he notes, he was "given [his] walking papers and told [he] was no longer a federal employee." Tice, who worked on "special access" programs, what he and other insiders called "black world programs and operations," publicly blew the whistle on illegal NSA spying on U.S. citizens that began in 2002. As he put it, "We need to clean up the intelligence community. We've had abuses, and they need to be addressed." Tice also made charges about possible espionage within the Defense Intelligence Agency and incompetence by the FBI. As a result, he said, "retaliation came down on me like a ton of bricks." Fired, May 2005.

Turse lists many other experts and top officials who have been forced out or fired or threatened or (in one sad case) driven to suicide. Career civil servants are in revolt, sometimes in open revolt, against a system that punishes truth-tellers and rewards sycophants. Soon there will be no one left who knows how to shoot straight.