Progress Report: Warrantless Spying Apologetics Continue

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Wed, 21 Dec 2005 06:56:12 -0800

Progress Report: Warrantless Spying Apologetics Continue

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AMERICAN PROGRESS ACTION FUND

The Progress Report

by Judd Legum, Faiz Shakir, Nico Pitney

Amanda Terkel and Payson Schwin

 

www.progressreport.org

12/21/2005

 

For news and updates throughout the day, check out our new blog at

ThinkProgress.org.

 

NATIONAL SECURITY

Warrantless Spying Apologetics Continue

 

Concern over President Bush's warrantless domestic spying program is

growing. U.S. District Judge James Robertson, one of 11 members of the

secret FISA Court, took the extraordinary step of resigning on Monday

" in protest of President Bush's secret authorization of a domestic

spying program. " Associates of Judge Robertson, who was appointed to

the court by late Chief Justice William Rehnquist, said he had

" privately expressed deep concern that the warrantless surveillance

program authorized by the president in 2001 was legally questionable

and may have tainted the FISA court's work. " Also yesterday, a

bipartisan group of senators, including Chuck Hagel (R-NE) and Olympia

Snowe (R-ME), called " for a joint investigation by the Senate

judiciary and intelligence panels into the classified program. "

 

Meanwhile, the Bush administration and its supporters in Congress

continue to mount defenses of the President's activities. Some are

simply rhetorical flourish: Sen. John Cornyn (R-TX) said on Monday,

" None of your civil liberties matter much after you're dead. " Sen.

Russ Feingold's (D-WI) retort, borrowed from Patrick Henry, was

fitting: " Give me liberty or give me death. " But other defenses of the

program require deeper analysis: President Bush has argued that his

authority to spy on Americans without a court order derives from the

Authorization for the Use of Military Force (AUMF) passed by Congress

after September 11. Others have issued defenses that boil down to the

claim, " President Clinton did it too. " None are accurate.

 

DEBUNKING THE WAR RESOLUTION MYTH: President Bush said on Monday that

he did not have to secure warrants to spy on Americans because " after

September the 11th, the United States Congress also granted me

additional authority to use military force against al Qaeda. " Attorney

General Alberto Gonzales made the same case, in greater detail. But

Congress clearly did not intend for the AUMF passed after 9/11 to

authorize such activities. When the authorization was debated on

September 14, 2001, members of Congress were extremely clear about the

limited authority it gave the President. Rep. James McGovern (D-MA)

noted that it provided " no new or additional grant of powers to the

President. " Sen. Ted Stevens (R-AK) argued, " Some people say that is a

broad change in authorization to the Commander in Chief of this

country. It is not. It is a very limited concept. " Several additional

statements here.

 

DEBUNKING THE EXECUTIVE ORDER MYTH: Conservative activist Matt Drudge

yesterday posted the following headline on his popular website:

" Clinton Executive Order: Secret Search on Americans Without Court

Order. " This is false. Drudge highlights one sentence from an

executive order issued by President Clinton in February 1995: " The

Attorney General is authorized to approve physical searches, without a

court order. " But the order also includes the following text:

" Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign

Intelligence Surveillance] Act (FISA), the Attorney General is

authorized to approve physical searches, without a court order, to

acquire foreign intelligence information for periods of up to one

year, if the Attorney General makes the certifications required by

that section. " That section of FISA requires the Attorney General to

certify that the search will not involve " the premises, information,

material, or property of a United States person. " That means U.S.

citizens or anyone inside of the United States. In stark contrast,

Bush's program permits, for the first time ever, warrantless

surveillance of U.S. citizens and other people inside of the United

States. Neither Clinton's 1995 executive order, nor President Carter's

1979 executive order (which Drudge also claims allows warrantless

searches of Americans) authorizes that.

 

DEBUNKING THE GORELICK MYTH: A related argument was made yesterday by

Byron York in a National Review article titled " Clinton Claimed

Authority to Order No-Warrant Searches. " The article cites then-Deputy

Attorney General Jamie Gorelick's July 14, 1994 testimony that " the

President has inherent authority to conduct warrantless physical

searches for foreign intelligence purposes. " Sen. Cornyn cited the

testimony several times yesterday. What York obscures is that, at the

time of Gorelick's testimony, physical searches were not covered under

FISA. It's not surprising that, in 1994, Gorelick argued that physical

searches were not covered by FISA. They weren't. With Clinton's

backing, the law was amended in 1995 to include physical searches. The

distinction is clear. The Clinton administration viewed FISA, a

criminal statute, as the law. The Bush administration viewed FISA as a

set of recommendations they could ignore.

 

DEBUNKING THE ECHELON MYTH: Another variation of the " Clinton did it "

argument involves a top-secret surveillance program employed by the

Clinton administration, code-named Echelon. The conservative outlet

NewsMax presents the basic case: " During the 1990's under President

Clinton, the National Security Agency monitored millions of private

phone calls placed by U.S. citizens and citizens of other countries

under a super secret program code-named Echelon…all of it done without

a court order, let alone a catalyst like the 9/11 attacks. " This is

false. The Echelon program complied with FISA. Before any

conversations of U.S. persons were targeted, a FISA warrant was

obtained. Then-CIA director George Tenet testified to this before

Congress on 4/12/00: " We do not collect against U.S. persons unless

they are agents of a foreign power as that term is defined in the law.

We do not target their conversations for collection in the United

States unless a FISA warrant has been obtained from the FISA court by

the Justice Department. "

 

BUDGET

Congress's Holiday Shenanigans

 

As the Senate prepares to vote on the federal budget, members turned

to manure metaphors to describe the situation. " It all hits the fan

tomorrow, " Sen. Gordon Smith (R-OR) warned, and Sen. Arlen Specter

(R-PA) said about the budget, " It's a bill to hold one's nose and let

it go through. " The Detroit Free Press agreed with their assessment:

" ome of the methods used to get things done [in Congress] just reek

to high heaven. " What stinks so badly in Washington, D.C. today?

First, Vice President Cheney is set to cast the tiebreaking vote on a

budget that hurts the poor, helps special interest lobbies, and does

not address budget deficits. Second, Sen. Ted Stevens (R-AK) has hit a

new low with his efforts to attach a provisions allowing drilling in

the Arctic National Wildlife Refuge onto a defense spending bill. Not

only are the ends foul, but the means by which conservatives plan on

implementing their policies are truly unsavory. " The American people

will see this for what it is, a cynical approach to legislating that

will further erode public confidence in the federal government, " Sen.

Olympia Snowe's (R-ME) spokeswoman said. We hope she's right.

A BUDGET ONLY SCROOGE COULD LOVE: The budget in its current from

" would cause considerable hardship among low-income families and

people who are elderly or have disabilities. " The budget would

increase Medicaid co-pays and premiums, and some who are now paying

$3 for hospital services would later pay upwards of $100 for the same

service. Elderly and disabled persons on Medicare will face higher

premiums. Meanwhile, new Temporary Assistance for Needy Families

(TANF) provisions would encourage states to " exclude poor two-parent

families from assistance. " Child support enforcement is also on the

chopping block. Students, " who already borrow an average of $18,000 to

finance their college educations, " would face a $12.7 billion cut in

education aid. The United States Student Association says the cuts

would add thousands of dollars to student loan interest payments.

(More on budget priorities here.)

CONGRESS LEAVES MILK AND COOKIES FOR SPECIAL INTERESTS: Roll Call

reported yesterday that Senate Majority Leader Bill Frist (R-TN) and

Speaker Dennis Hastert (R-IL) placed language into the Defense

spending bill " to insert controversial language that protects vaccine

manufacturers from product liability claims in the event of a viral

pandemic " that would " represent enormous financial relief for a small

group of largely foreign-owned pharmaceutical companies. " Sen. Edward

Kennedy (D-MA) called the " massive giveaway to the drug industry " a

" midnight deal done in a back room of the Capitol. "

LATE-NIGHT GIFT EXCHANGES: To get the necessary votes, both the Senate

and House leadership had to garner support with giveaways to specific

industries and corporations. Sen. Norm Coleman (R-MN) opposed the

budget until $30 million worth of sugar-beet subsidies were put back

into the bill. " Karl Rove called me and asked what I wanted, " Coleman

told the National Journal. " A few hours later it was out of the bill. "

Rove was not the only " secret Santa " doling out stocking stuffers.

House members from Ohio supported the House version only after the

leadership met their demands to " protect a manufacturer of medical

oxygen tanks, Invacare Corp. of Elyria, Ohio, from one Medicare cut. "

PLAYING DREIDEL WITH THE DEFICIT: Conservatives fail to see the irony

of a " Deficit Reduction Act " that along with planned tax cuts would

increase the deficit by $30 billion. The $40 billion in spending cuts

would not even pay for the $70 billion in tax cuts conservatives plan

on passing next year. Stating the obvious, Sen. Kent Conrad (D-ND)

said, " Put the two together and guess what: You have increased the

deficit, not reduced it. "

WATCH OUT RUDOLPH, STEVENS WILL DO ANYTHING TO DRILL NEAR THE NORTH

POLE: In his latest attempt to open up the Arctic National Wildlife

Refuge to oil drilling, Sen. Ted Stevens (R-AK) attached a provision

to the defense spending bill which contains money for our troops,

Katrina reconstruction, and avian bird flu preparations. The House

rejected drilling in the Refuge last week, but to get around this

Stevens has tried to argue the provision is somehow relevant to

national defense. A simply majority in the Senate will be able to

reject the move on a point of order vote today (under Rule 28 of the

Senate). If this tactic does not work, then Senators opposed to

drilling would be in the awkward position of filibustering the defense

bill. As Rep. Joe Schwarz (R-MI) said about a similar House vote last

week, " It was utterly despicable to be put in a position of choosing

between funding our troops and opposing bad public policy. " " The

latest defense spending bill is a fine example of subverting

democracy, " the Detroit Free Press wrote. " The lesson: If you can't

win, attach yourself to something that can't lose. "

INTERNSHIPS

The research team that brings you The Progress Report and Think

Progress needs interns! Click here for more information.

GOOD NEWS

" The General Assembly and Security Council overwhelmingly approved

resolutions Tuesday establishing a new U.N. Peacebuilding Commission

to help countries emerging from conflict manage the difficult

transition to stability and development. "

STATE WATCH

GEORGIA: Georgia's " Licensing On Wheels " bus has failed to bring photo

IDs to the 300,000 voting age residents who don't have driver's licenses.

ILLINOIS: Pat Robertson's right-wing American Center for Law and

Justice is suing " to stop Illinois from requiring pharmacies to fill

prescriptions for emergency contraception. "

HUNGER AND HOMELESSNESS: U.S. Conference of Mayors reports on the

status of hunger and homelessness in 24 U.S. cities.

BLOG WATCH

THINK PROGRESS: Colin Powell says he doesn't see the need for a

warrantless spying program.

THINK PROGRESS: Conservative scholars call spying program " impeachable

offense, " " the kind of thing that Alexander Hamilton was referring to

when impeachment was discussed. "

DEFENSE TECH: NSA agents react to wiretap scandal.

GAWKER: A holiday gift for followers of the CIA leak scandal.

DAILY GRILL

" President Bush said Saturday he personally has authorized a secret

eavesdropping program in the U.S. more than 30 times since the Sept.

11 attacks. "

-- Associated Press, 12/18/05

VERSUS

" Any time you hear the United States government talking about wiretap,

it requires -- a wiretap requires a court order. Nothing has changed,

by the way. When we're talking about chasing down terrorists, we're

talking about getting a court order before we do so. "

-- President Bush, 4/20/04 [Watch the video]

UNDER THE RADAR

SCIENCE -- INTELLIGENT DESIGN REJECTED: Yesterday, a federal judge

appointed by President Bush ruled that intelligent design is " nothing

less than the progeny of creationism " and violates the separation of

church and state, striking down a Dover, Pennsylvania school board

policy " requiring science teachers to inform students of 'gaps' in

Charles Darwin's theory of evolution and to share competing views,

including intelligent design. " In his 139-page ruling, Judge John E.

Jones III noted that Dover officials " time and again lie[d] to cover

their tracks and disguise the real purpose " of the policy, which was

to promote religion. As evidence of the direction of intelligent

design, Jones repeatedly cited the work of Seattle's Discovery

Institute, which wrote in its 1999 manifesto that the movement " seeks

nothing less than a complete scientific revolution in which ID

[intelligent design] will supplant evolutionary theory. " Dover voters

are most likely cheering the Judge's decision; in November, they voted

out the eight conservative members who implemented the intelligent

design policies.

ECONOMY -- TREASURY SECRETARY CLAIMS CLINTON'S SURPLUS WAS A 'MIRAGE':

Bloomberg reports that Treasury Secretary John Snow called the $127

billion budget surplus left by President Clinton a " mirage. " Upon

entering office, President Bush immediately whittled away the Clinton

surplus, running up a deficit of $319 billion in 2005 primarily

through handsome tax cuts for the wealthy. But Snow incredulously

believes " the president's legacy will be one of having significantly

reduced the deficit in his time. " " Snow's comment would be laughable

if it weren't so pathetically and obviously inaccurate, " said Thomas

Mann, a political analyst at the Brookings Institution. Snow's

economic analysis that Clinton's surplus " wasn't a real surplus " ranks

up there with Vice President Cheney's prior claim that " deficits don't

matter. "

IRAQ -- ELECTION RESULTS SOW SEEDS OF SECTARIAN CONFLICT: The

Independent writes of the Iraqi election returns, " Iraq is

disintegrating. The first results from the parliamentary election last

week show the country is dividing between Shia, Sunni and Kurdish

regions. " The Seattle Times writes, " Post-election harmony in Iraq is

unraveling. " The Shia religious coalition, which is closely tied to

Iran, appears to have achieved a " total victory in Baghdad and the

south of Iraq " while Sunni and Kurdish parties are likely to win large

majorities in their ethnic-majority regions. The Asia Times said of

the outcome, " Iran wins big in Iraq's elections. " Sounding despair at

the results, U.S. Ambassador Zalmay Khalilzad said, " It looks as if

people have preferred to vote for their ethnic or sectarian

identities. But for Iraq to succeed there has to be cross-ethnic and

cross-sectarian co-operation. " Former LA Times columnist Robert Scheer

suggests that the U.S. hope is " that Shiite and Sunni fanatics can

check each other long enough for the United States to beat a credible

retreat and call it a victory, albeit a pyrrhic one. "

ETHICS -- DELAY LIVES LAVISH LIFE WITH CAMPAIGN AND CHARITY

CONTRIBUTIONS: Rep. Tom DeLay (R-TX) has become " a king of campaign

fundraising, [and] he lived like one too. " DeLay -- who has been

indicted for money laundering in connection with the 2002 Texas

elections -- has raised $35 million for his campaign, PACs,

foundation, and legal defense fund since 1995. The Associated Press

reports that over $1 million of this money has gone toward DeLay's

lavish lifestyle: " at least 48 visits to golf clubs and resorts; 100

flights aboard company planes; 200 stays at hotels, many world-class;

and 500 meals at restaurants, some averaging nearly $200 for a dinner

for two. " DeLay's personal spending far exceeds that of other

lawmakers, and Rep. Chris Shays (R-CT) noted, " It's excessive, it's

obscene, it distorts someone's ability to have good judgment. ... It's

an abuse of campaign finance law and of our ethics law. "

HOMELAND SECURITY -- CHERTOFF'S FEMA REFORM A 'PERCEPTION PLOY': After

a " broken " response to Hurricane Katrina, Homeland Security Secretary

Michael Chertoff told the House Select Committee on Hurricane Katrina

one of his top priorities was to " re-tool FEMA " so that the agency was

better able to deal with disaster response and recovery. More recently

at a speech at George Washington University, Chertoff reiterated, " We

will retool FEMA, maybe even radically, to increase our ability to

deal with catastrophic events. " But typed meeting notes released by an

agency official reveal that Chertoff told employees the retooling of

FEMA " is partially a perception ploy to make outsiders feel like we've

actually made changes for the better. " Chertoff also shunned the

agency's long-standing recovery efforts, saying, " We essentially

should be only doing recovery. "