Not Telling the Truth Posted by Morton H. Halperin

Leon Sigal begins his essential book on the government and the press (Reporters and Officials: The Organization and Politics of Newsmaking) by quoting from a high official of the Foreign Office (and I paraphrase):  If you think we lie to the public you are mistaken; but if you think we tell the truth you are equally mistaken.

And so we have the Bush Administration's dealings with what it now refers to as the NSA program which the President has described.  Before the program was revealed in the New York Times, the President and the Attorney General, in discussing the authority to conduct warrantless surveillance, may not have lied, but they certainly did not tell the truth.

No fair-minded listener open to the arguments of each side could reach any conclusion but that they were following the requirements spelled out in FISA.  We now know they were not.

More on FISA Posted by Morton H. Halperin

Michael Signer and I seem to have reached agreement. Progressives need to make clear that they recognize the serious terrorist threat and the need for surveillance; the lawless program needs to be condemned, but we should recognize that there might be a case to permit more surveillance.

Before we can decide that, however, we need to know more about precisely what the administration is doing.  It is now increasingly clear that there are two different programs: One, which administration officials refer to as the program which the President described, and the other, which we still know almost nothing about.

The program which the President described and which General Hayden explained in some detail does not, as he said, involve any new technology or reviewing masses of data for key words  - that is the other program. So first, what more is there to say about the program the President described?

More on NSA and Posner Posted by Michael Signer

This is a response to Mort's response to my discussion of Richard Posner's sort-of defense of the NSA wiretapping.  One of the benefits of the Democracy Arsenal crowd is we have folks like Mort who can write things like the following:

I worked hard to get FISA passed in the 1970s because I believed that the government needed to conduct electronic surveillance for intelligence purposes and that it should be done pursuant to a statute and with the court involved as appropriate.   The Ford and Carter administrations identified four situations in which a warrant should not be necessary (emergency, war for 15 days, certain embassy taps, and testing) and they were all included in the bill.

The most I could say along these lines is that, while in my short pants, I considered the implications of the downfall of a President whose second inauguration occurred in the month of my birth.  Mort concludes:

It is impossible to tell if some additional authority is needed since the administration not only did not ask for, but affirmatively said it did not want it.   If after 9/11 NSA needs more authority under FISA or even some additional emergency warantless authority it should say so and we should have that debate.

We cannot have it until we know what they want.  In the meantime we must insist that the law and the constitution be obeyed.

Well, I agree.  I was citing Judge Posner's argument, really, for the sake of argument.  Obviously, laws can't be broken -- and you don't even have to add the modifier "with impunity."  They just can't be broken.  That's what the rule of law is all about. 

Perhaps even more powerfully, you cannot have the executive branch of government making decisions about when the rule of law applies unilaterally, without judicial review or legislative pre-approval.  It's a gross violation of almost every principle of American constitutionalism.  So, yes, it appears to be against the law.  This may well rise to the level of impeachability.

However.

No Trust? No Effective Government Posted by Morton H. Halperin

Co-Authored with Michael Fuchs

A new Los Angeles Times/Bloomberg poll reveals that 47% percent of the country does not believe that Bush is “honest and trustworthy,” against 46% that believe he is.   

Forget for a moment that the Bush administration has broken the law by disregarding FISA in its domestic spying program.  The efficacy of government is being threatened because we can no longer believe the administration when it speaks in public.

Effective policies can only be maintained when the public and Congress trust the government.  On Iraq’s WMD, on torture and now on domestic spying, Bush administration officials have been caught lying again and again, eroding that trust. 

Response to Another View Posted by Morton H. Halperin

One would have expected a federal judge to be able to distinguish between what is lawful and what one might want to ask Congress to make lawful if the constitution permits.

I worked hard to get FISA passed in the 1970s because I believed that the government needed to conduct electronic surveillance for intelligence purposes and that it should be done pursuant to a statute and with the court involved as appropriate.   The Ford and Carter administrations identified four situations in which a warrant should not be necessary (emergency, war for 15 days, certain embassy taps, and testing) and they were all included in the bill.

It is impossible to tell if some additional authority is needed since the administration not only did not ask for, but affirmatively said it did not want it.   If after 9/11 NSA needs more authority under FISA or even some additional emergency warantless authority it should say so and we should have that debate.

We cannot have it until we know what they want.  In the meantime we must insist that the law and the constitution be obeyed.

Wiretapping -- Another View Posted by Michael Signer

One gets the feeling of a rising hysteria on both sides of the NSA debate -- yes, Democrats are right that a rule of law has probably been broken, and that legal and political consequences should follow.  This analysis, however, is separate from the issue that unfortunately is the sword upon which the American left is impaling themselves again and again -- a failure to evince sufficient conviction on most matters of national security and homeland protection. 

On the other hand, the President's audacious Rove-led political offensive of the last week or so affirms, as always, the essential shamelessness of this team's willingness to politicize issues of national security.  Not only does politics not stop at the water's edge -- it takes over the entire ocean, as we saw when they staged the Iraq vote three weeks before the 2002 midterm elections.   

Politics or Security? Posted by Morton H. Halperin

Of all the ways in which the Bush administration's actions actually reduce American security, none is more dangerous or more irresponsible then its effort to turn legitimate debates about how to combat terrorism into political campaign issues.

Starting with the Patriot Act right after 9/11 and continuing with its belated support of a Homeland Security Department and now with its response to reports of warrantless NSA surveillance,  President Bush has allowed Karl Rove to set the tone and to use the issue to attack Democrats rather than to seek a consensus about how to deal with terrorist threats while protecting civil liberties.

The administration response to the New York Times account of the NSA warrantless surveillance program is a textbook case of irresponsible behavior.  After conducting the program in secret, the President lashed out at the Times for publishing the story. He first said that any debate would harm national security.  Now he says he welcomes a debate.  He asserts that he only wants to listen to al Qaeda talking to Americans and his critics object to that.

This is of course total nonsense.

Why Not Just Pass a Bill? Posted by Michael Signer

Kevin Drum reasons through the Administration's current rationale for the NSA program and finds it unpersuasive, to say the least:

Administration apologists have argued that the White House couldn't seek congressional approval for this program because it utilized super advanced technology that we couldn't risk exposing to al-Qaeda. Even in secret session, they've suggested, Congress is a sieve and the bad guys would have found out what we were up to.

But now we know that's not true. This was just ordinary call monitoring, according to General Hayden, and the only problem was that both FISA and the attorney general required a standard of evidence they couldn't meet before issuing a warrant. In other words, the only change necessary to make this program legal was an amendment to FISA modifying the circumstances necessary to issue certain kinds of warrants. This would have tipped off terrorists to nothing.

So why didn't they ask Congress for that change? It certainly would have passed easily. The Patriot Act passed 99-1, after all. Hell, based on what I know about the program, I probably would have voted to approve it as long as it had some reasonable boundaries.

So there must be more to this.  But what?

Can anyone say "unitary executive"?

Scare Tactics Posted by Michael Signer

On the President's claim that disclosure of the NSA's domestic spying hurts national security, I couldn't agree more with Atrios:

No one has yet managed to explain how revealing that the administration illegally spies on American citizens without obtaining warrants, instead of legally spying on people after obtaining such warrants, damages national security.

I'm less disturbed by the blunt-object nature of the President's claim than by the notion that the tortured logic hasn't raised more ire, more outrage.  You CANNOT use fear this overtly as a tactic to suppress valid inquiry about governmental practices vis-a-vis the Bill of Rights. 

Libertarians RIP Posted by Lorelei Kelly

With all the discontent among conservatives--and among Republicans on Capitol Hill--you would think that libertarians would feel emboldened to take a stand for the rule of law and excoriate the administration's domestic surveillance policy that allows listening in on Americans' phone conversations.  Libertarians have provided a key ally to the right over the past 30 years.  Yet this self-appointed administration policy violates a key libertarian value, that of privacy rights.  You would think these lovers of individual freedom would be bug-eyed. Not so, for the most part.  The mothership of libertarians is CATO--where the surveillance issue rates below Alito.  Ten years ago, Michael Lind wrote about this peculiarity in Up From Conservatism,

Libertarian ideologues, true to their classical liberal principles, wish to abolish government subsidies both for corporations and for poor Americans.  Yet  Republican strategists have selectively raided this body of thought, looking for ways to reduce government programs that benefit wage earners and the poor, while leaving the interests of the rich and US corporations unscathed. (With the tragedy in West Virginia in mind, check out this labor site on the Bush administration's cuts in the Mine Safety and Health Administration) Meanwhile, organizations like Cato play down the unconservative views of its intellectuals on drug policy, gay rights and abortion.  Now, it seems, we can add privacy rights to that list.

Yet the Alito/surveillance nexus does present an opportunity for those who want to fight for American democracy.  The upcoming Alito Supreme Court hearings could provide a much needed showdown with the administration to uphold representative government.