Thursday, May 25, 2006

WaPo gets it 25% of Half Right

It started about thirty hours ago, or so, when I read a Washington Post article by Walter Pincus where Attorney General Gonzales sought to justify the Federal Government’s gathering of domestic telephone records by pulling a three-decades-old court case, Smith v. Maryland, out of his ass (without confirming or denying the existence of said ass, of course).

Gonzales would not confirm the details of a May 11 story in USA Today, which said the National Security Agency had collected phone records of millions of Americans and analyzed them to search for terrorism plots. But Gonzales told reporters that, under the Smith v. Maryland ruling, "those kinds of records do not enjoy Fourth Amendment protection. There is no reasonable expectation of privacy in those kinds of records."

Let’s skip, for the time being, that Pincus’s summarizing the NSA program as one where the NSA analyzed the records for “terrorism plots” is kind of a stretch (go back and read the original story. . . I linked to it earlier), and let’s instead focus on the fact that this entire page A6 article exists only to explain Abu Gonzales’s point of view, without the hint of an idea that it might not be indisputable fact.

The problem was, I knew it wasn’t fact. I remembered reading about Smith v. Maryland the day the NSA story broke, and I remembered reading that it didn’t apply. I remembered, but I couldn’t find it anywhere to provide a proper citation, so I let it go, hoping someone else in the blogasphere would pick up the ball.

Well, Wednesday morning, Think Progress did.

This is a classic case of misdirection. The issue isn’t simply whether or not collecting domestic phone records is constitutional. The issue is whether it’s legal. If the USA Today story is accurate, the NSA program appears to be illegal, not because it violates the fourth amendment, but because it violates two statutes.

Significantly, Smith v. Maryland considers activities that occurred in 1976. Both of the statutes that prohibit the activity described by USA Today were enacted after that date:

1. The Stored Communications Act of 1986 (SCA). The law prohibits the telecommunications companies from handing over telephone records to the government without a court order. (18 USC 2702-3.) There are several exceptions, none of which apply in this circumstance. The SCA was enacted in response to Smith v. Maryland.

2. The Foreign Intelligence Surveillance Act of 1978 (FISA). The law allows this kind of domestic surveillance in two circumstances: 1) the government obtains a warrant from the Foreign Intelligence Surveillance Court, or 2) the government obtains a certification from the Attorney General that the program is legal under FISA. According to the USA Today article, neither action was taken.

To reiterate, Wednesday’s WaPo article says none of this. Pincus lets the AG’s assertions go unchallenged. Did it not occur to seasoned reporter like Pincus that maybe Abu Gonzales—the author of many a signing statement and torture memo—has a casual relationship with the law? Would it have been so hard for Pincus or his editors to do a little checking before they went to press?

Well, today, on page A8, Pincus and the Post try to make amends. . . sort of. Without acknowledging that perhaps Think Progress or someone else in the ‘sphere tipped him off, Pincus first reiterates Gonzo’s garbage for a couple of graphs before turning to G. Jack King of the National Association of Criminal Defense Lawyers, who first says Gonzales is right about the Fourth Amendment before getting to the fact that the Government’s actions violate the 1986 Stored Communications Act.

The article then turns to Kate Martin, director of the Center for National Security Studies, to state something you think would be obvious, but given the times, I guess it bears saying:

The government is bound by the laws Congress passes, and when the attorney general doesn't even mention them, it is symptomatic of the government's profound disrespect for the rule of law.

(I know there is more to the quote, but I can’t help but feel the Post needed a quote to buttress the idea that “The government is bound by the laws Congress passes.”)

The article then gives the next four paragraphs to a refutation of King’s opinion—essentially reasserting the point made by the Attorney General. There is no mention in either WaPo article of the 1978 FISA statute.

So, to recap: Two articles. Thirteen paragraphs making the point asserted by Alberto Gonzales. Two paragraphs (one-and-a-half, really) positing that what the AG says is not relevant.

In sum: one really lousy job of reporting.

(Cross-posted at Daily Kos)

Monday, May 22, 2006

Wait for it. . . .

Could it be? Was it possible?

As I sat reading the Sunday Times piece on the vulnerability of Republicans in House races this fall, I was expecting the article to tell me that while Democrats should have a chance, they won’t pull it off because—sigh—they’re Democrats. Why was I expecting this? Well, because the article was written by Adam Nagourney, who, as I’ve noted before, kind of has a problem when it comes to the Dems.

But there it was, in black and white, paragraph after paragraph stating, in so many words, “The Republicans are in trouble, the Republicans are in trouble, the Republicans are in trouble”—without so much as a cruel joke or a backhanded compliment.

This being an AdNags piece, I was a little bit in shock—but it was a pleasant sensation. Then, just as I started to let down my guard, over a dozen paragraphs down, there it was:

The Republican National Committee collected $17 million at a Washington fund-raiser last week. The party chairman, Ken Mehlman, said in an interview that most of that money would go to help embattled Republican Congressional candidates, a show of financial force that could frustrate Democrats in their search to win control.

Howard Dean, the Democratic Party chairman, has instead sent money he has raised to state parties for party-building, over the objections of Congressional leaders.

Uh huh, you had to say it, didn’t you, Adam? Bad stuff ‘bout Howard Dean. What’s more, you just say it—without attribution—like it was just common knowledge.

Maybe that’s how you want to see it, Mr. Nagourney, but it’s just not that simple.

First off, AdNags is sort of comparing apples to oranges (and as a seasoned political reporter, he ought to know better). While RNC head Mehlman says that most of the $17 million he raised last weekend will go to help Republican Congressional candidates, he doesn’t say what percentage that is of the whole of the RNC coffers. Perhaps money raised before this was already spent on state party-building. And, while most of this $17 mil will go to races, perhaps the rest will go to something like party-building.

In addition, it obviously goes without saying—for AdNags, anyway—that the RNC has spent a boatload on party-building in the past, and the Democrats, by most accounts, need to play catch-up if they are to enjoy long-term success.

But, on top of all that, as was teased-out in many comments I received last week (on my Begala post), while Dean is allocating more than the DNC has in the past to state party-building activities, it still makes up less than fifteen percent of the money raised.

Peeling back one more layer, while there certainly have been some very vocal objections to Dean’s 50-state strategy, Nagourney’s stating that Congressional leaders (dare I read it as all Congressional leaders?) object to Dean’s ways seems a little unsubtle (to put it nicely). Rahm Emmanuel (D-IL), head of the Democratic Congressional Campaign Committee, has made his rift with Dean quite public—and Emmanuel is a Congressional leader, but he is just one. (One, I might add, with his own war chest—as head of the DCCC—and his own priorities.) I am sure there are other Democratic members of Congress who have aired their dissatisfaction in public, too (I’m guessing there’s a Steny Hoyer quote out there somewhere), but the point here is that it is not as simple as Nagourney wants us to believe.

Be it said that Dean is leading the DNC in a different direction than did Terry McAuliffe, who focused on big-money donors and treated the DNC sort of like an ATM. I, for one, think that after 12 years in the Congressional minority, Democrats should welcome a fresh approach, but there does seem to be some sort of establishment media need (no doubt helped by some members of both parties) to continually portray Howard Dean as a guy who doesn’t know what he’s doing. And, it does seem like Emmanuel and others are laying the groundwork for a post-November blame-game should the Democrats fail to meet expectations.

Be that as it may—and much to my surprise—aside from this moment of Dean-bashing, the Nagourney piece does not predict November disasters or post-November recriminations. Indeed, aside from a few paragraphs, the piece is frighteningly sunny.

I say “frighteningly,” not because I subscribe to the theory that it would be better for Democrats not to win back the House in November, a joke given ridiculous amounts of space in last week’s AdNags article, but because, well, this is Adam Nagourney writing, and I keep waiting for the “every Democratic silver lining has a cloud” punch line.

Friday, May 19, 2006

Paul Begala’s Night of Long Knives

Just what are you saying, Mr. Begala?

In his HufPo post, “Bringing a Knife to a Gunfight,” Inside Politics insider Paul Begala starts with an apology:

I should never, ever have denigrated young men and women who are working in the political trenches in places like Mississippi and Utah.

I was being arrogant and flippant when I said they're just picking their noses. Mea culpa. You live by the smart-ass quip, you die by the smart-ass quip.

What he is apologizing for, as many know by now, is his, yes, “smart-ass” attack on Howard Dean and the 50-state strategy that Dean has advocated as chairman of the Democratic National Committee. Begala accused Dean of spending all of the DNC’s money on nose-pickers in Utah and Mississippi. Why he’s apologizing, is because Zack Exley called him on it.

While I commend Begala on bucking up, and sucking it up with the opening apology, I have problems with the rest of Paul’s attempt to come back after his foul up.

Writing again about the discrepancy between the $74 million raised by the DNC and the $10 million that the DNC reportedly has left, Begala first notes that only $8 million has gone to those stateside nose-pickers, and then asks, “So, where’s the money gone?”

I won’t take you through Begala’s math, but he says, in so many words, that $45 million of the Party’s money is MIA. Unaccounted for and just plain not in the bank.

Where does Begala think that money could have gone; what are some possible things it could have been spent on? Paul’s immediate response is, “I have no idea.”

So, now, I have a question for Paul Begala: Just what are you accusing Chairman Dean of, exactly?

Seriously, Paul, you’ve worked on campaigns (you brought us Zell Miller, for instance), you’ve had more than a cup of coffee inside the corridors of power, you’ve prognosticated on politics for years, do you really have “no idea?” (And don’t tell me about the consultants again—you’ve dismissed that explanation, yourself.) C’mon, Mr. Begala, show us the money—or show us where you think it has gone.

I am, in fact, wondering, have you asked Howard Dean to show you the money? Don’t get me wrong, I think the DNC should be accountable for how it spends the funds it raises, but you begged the question, so I’m asking you, have you just asked?

You see, at this hour, I have no idea, either, but I bet that given a couple of days and a few phone numbers, I could get some reasonable answers. Hell, I could throw it open to the blogasphere—who out there knows how the $64 million got spent?—and maybe get the info even faster. But I think you, Mr. Begala, could call the Chairman as soon as you’re done reading this, and just ask—couldn’t you?

Until then, what are you trying to say by stating that you have no idea what Dean has done with $45 million? Are you accusing Dean of embezzlement? That was my first thought. Are you accusing Dean of rank incompetence and mismanagement—maybe even corruption? That was my second thought.

If either of those readings is in your thoughts, then come out and say so. Don’t just apologize with one breath, and then continue to use innuendo to undercut Dean’s leadership with the next.

And what about that leadership? You say, Paul, that you are sorry for taking our focus away from crafting a winning message, yet your article’s big strategy point is that you want to make sure there’s money left in the fall for attack ads. You say—now—that you favor a 50-state strategy, but you more than imply that the policy is born of a political fantasy camp. What’s more, you insult the netroots (“desktop campaign manager-wannabes,” “this newfangled Interwebnet thing”) that have, in many cases, given your new favorite candidates across the country a lot of recognition, and quite a few campaign contributions, too.

Rather than being thrilled that after a decade of profound losses, the Democratic party is now about to matter again, rather than being excited about all the new voices, candidates, and voters that are inspired by this progressive, party-of-many approach, rather than lending another pair of hands to the struggle, you use those hands to attack your Democratic brethren. You say you know “how vicious Republicans can be,” and warn against the evil Mr. Rove, but then you do Rove’s work for him. Saying, “I've lived almost my entire life in red states—not Berkeley, not Burlington,” is as good as dismissing the Democrats as the Party of lefty nut jobs (or worse, Birkenstock-wearing, New York Times-reading, latte-drinking. . . Jews). You know that, Mr. Begala.

It is possible to look too often to history for lessons or metaphors, but the past contains more than a few examples of ambitious men riding the passionate wave of a popular movement, and then purging the movement of that passion to consolidate power. Trust me, Paul, you don’t want to be part of that historical allusion.

The Democrats haven’t won anything yet, Mr. Begala, is it really that smart to start knocking your pals in Berkeley and Burlington? I mean, what good is bringing a gun to a fight if you’ve already knifed all of your own soldiers?

(cross-posted over at Daily Kos)

Tuesday, May 16, 2006

Bush’s Monday Up-Front: A Critical Failure; A Ratings Flop

Even the PR isn’t that good anymore.

As I have pointed out numerous times, the Bush Administration doesn’t do policy—they only do public relations. So, imagine my surprise, what with all the hoopla surrounding the President’s Monday night Oval Office address, that even the PR value of the event was a bust.

First, there was the false start, which the White House and CNN blame on NBC’s stage manager. Whether it was a White House screw up or just another example of the “liberal media” sticking it to our nation’s Leading-Man-in-Chief, the metaphor was unmistakable: another stutter step on Bush’s long path to so-called immigration reform.

The other “subliminable” message was that the wheels have come off. It was almost as if you could hear Karl Rove’s voice off camera intoning, “Please ignore the man behind the curtain!”

As for the “content” of the speech, it was a muddled early-bird dinner combo, with a little from column “A” and a little from column “B,” off of a take-out menu that offered little beyond lo-cal baloney—but it really doesn’t matter. As Marc Cooper put it:

Chances are Bush’s border move will be no more successful than his management of the war in Iraq or his response to Katrina.

The proposed 6,000 new border patrol agents by 2008 don’t make up for the 9,790 agents Bush cut from the budget 15 months ago. The “most technologically advanced border security initiative in American history” is every bit the fantasy it sounds—a “Star Wars” for the ground, with about as much chance of ever working. And the 6,000 National Guard troops slated to fill in as backdrop for the President’s photo-op have not yet been released by their state’s governors, are under-staffed and under-equipped because of Iraqi deployments, and are not trained for border patrol duty (even as support personnel).

Underlying all of this, of course, is the same old problem of funding. The recently extended tax cuts coupled with the ever-hungry war in Iraq continue to hamstring domestic initiatives, substantive or otherwise. The president plans to ask for $1.9 billion to be included in another underhanded supplemental budget, but even with that degree of creative accounting, it is doubtful this immigration scheme will ever see anything close to that.

And that’s just the “substance.” The real objective of Bush’s address, a grand attempt to find a topic he can use to enhance his and his Republican allies’ anemic poll numbers, seems equally doomed. Again, Marc Cooper:

The close-the-border faction of his own party is highly unlikely to accept Monday night’s sop. They know, just like the governors of New Mexico and California know, just as local law enforcement on the border knows, that Bush’s gesture is but a photo-op political stunt. They want the border closed, period. And their political representatives in the House – the Sensenbrenners and the Tancredos—are showing no signs of softening their resistance to both a guest worker plan as well as legalization path for the illegals already here.

And even those who bought the get-tough portion of the President’s speech also heard him endorse “comprehensive immigration reform” and a “temporary worker program” i.e. precisely the sort of measures scorned and denounced as an “amnesty.” So much for placating the Right.

Maybe the administration had a slightly different strategy. Maybe this speech was supposed to move Congress toward some sort of grand compromise, and provide Bush with a victorious moment of uniting rather than dividing. If that was their intent, however, this headline in the New York Times says it all:

President's Middle Path Disappoints Both Sides of Sharply Divisive Immigration Issue

No, no uniting the country, no victory for the president, no red meat for the base, and no real chance of a more secure border or a meaningful way of integrating economic refugees into the legal workforce. Sure, George Bush will get his photo-op, but his May sweeps Monday special—live from the Oval Office!—will likely prove to be a critical and a popular failure.

A phalanx of reporters will now head to the border, searching to file feature stories on the newly arrived Guard members. And one can expect that the Department of Homeland Security and Department of Defense will accommodate the media spoon-feeding. The safe bet, though, is that this speech, in spite of the momentary cable hype, will soon evaporate into the mists of memory.

And that, perhaps, is a surprise, considering the previous success this administration has had in managing its message. Or maybe, it’s by design—since what some might call a policy is doomed to fail, maybe it’s best for the Republicans if it is quickly forgotten.

What is not a surprise, and cannot easily be forgotten, is that Bush and his team continue to fiddle while Rome burns. While hunting for an issue that will shore up the base and change the national conversation, nothing is done to solve the pressing problems, foreign and domestic. And while staging another presidential PR stunt, countless millions more of our all-too-scarce tax dollars are being spent for purely political ends.

Monday’s show may have been a flop, but it is a very expensive flop indeed.

(cross-poted at Daily Kos)

Monday, May 15, 2006

Adam Nagourney’s Frustrated Head

Any regular reader of the New York Times knows that “reporter” Adam Nagourney was once humiliated in bed by a Democrat. OK, that’s not exactly what we all know, but we know that AdNags has a hard-on for the Democratic Party for as far back as anyone can remember, and that Nagourney does journalistic gymnastics on a regular basis in an attempt to beat it out. (I know, I know, never work blue.)

In a Sunday column (is it a column? At least the Times had the decency to run it in the “Week in Review” section instead of near the front page, but it did not run on the opinion page, so is this supposed to be taken as “fact?”) titled “Hey Democrats, Why Win?” Nagourney waxes and whines on the dangers of the Democrats actually retaking control of Congress in November. In the course of the piece, AdNags picks up Republican talking points previously aired under the guise of reporting last weekend by Tim Russert on Meet the Press.

Russert asked (OK, more or less told) House Minority Leader Nancy Pelosi that if the Democrats regained control of Congress there would be “payback.” Nagourney followed suit on Sunday:

Another worry is whether some Democrats would use their power in what could be perceived as payback against Republicans. Party leaders like Nancy Pelosi, the House minority leader, have talked of investigations into allegations of malfeasance across all parts of the Bush administration.

First, “could be perceived” by whom? This annoying little trick is all too common in today’s establishment media, and, here, AdNags gives us a classic example. It seems like unbiased reporting because it is put in the subjunctive and implies perception rather than stated fact, but the “perception” lacks attribution. It is not the reporter’s job to anticipate reaction, and by throwing out this hypothetical, Nagourney, like Russert before him, is actually spinning and not reporting.

Second, note the structure of this paragraph—“investigations” are analogous to “payback.” Ignoring the absurdity that, within the construct of this sentence, this is even an issue—aren’t “allegations of malfeasance” supposed to be investigated?—the construction of our government makes oversight and fact-finding not a political choice but a legal mandate. As Pelosi herself put it to Timmeh, “Investigation is the requirement of Congress. It’s about checks and balances.”

Of course, what Russert and Nagourney are doing is echoing a strategic talking point put front and center by RNC chair Ken Mehlman. Mehlman is duly scared about what November elections could bring, and he (and, no doubt, Karl Rove, as well) are out to stimulate the very hardcore Republican base while suppressing the turnout of so-called “persuadables.” Nothing turns on the base like the thought of Democrats giving as good as they have gotten, and nothing, according to the Hotline (via Kos), turns off persuadables like nastiness—and “payback” sounds very nasty.

“Payback” also sounds like “politics as usual”—divisive, inside-the-beltway squabbling—rather than governing in the interests of those outside the beltway. And, it is the idea that this is all nothing but politics—a kind of sport, really—that is the underlying meaning of Nagourney’s piece. AdNags uses quotes from former Representatives Coelho and Frost, former Senator Kerrey, and former DNC chair Andrews to paint a picture of a Democratic Party that is weighing whether winning is in the best interests of the politicians; conveniently, none of these ex-men discuss whether two more years of a Republican controlled Congress is in the worst interests of the American people.

Nagourney doesn’t entertain (and Ken Mehlman doesn’t want you to entertain) the possibility that Democrats might have ideals, or, if not ideals, at least ideas—ideas different from those of Republicans. That disinterested and disenfranchised voters tune out when they feel elections are just part of a game played by a bunch of “politicians” (said with a sneer) is common knowledge enough to be part of the Republican strategy. That talk of payback and strategizing to “almost win” plays to this, dare I say, “perception,” should be (and probably is) obvious to the likes of Nagourney and Russert.

But it is this handicapping of the horserace—this taking measure, with a thumb on the scale, of the strategy—that seems to be all that AdNags can wrap his frustrated mind around. The story that appears impenetrable to Republican shills like Nagourney is that Democrats might want to regain control because they agree with over two thirds of the voters and believe that this country is on the wrong track, and that by seizing the reigns of power, Democrats can start to at least try to once again set it right.

(Cross-posted over at Daily Kos)

Friday, May 12, 2006

We are All al-Qaeda

There is a line in the recent film V for Vendetta, uttered by the Guy Fawkes-masked V: "People shouldn’t be afraid of their government, the government should be afraid of its people." (A bastardization of Antonio Negri and Michael Hardt, I am told.)

Well, it appears in the case of the Bush administration, they are.

Why else would they need to log every single domestic phone call—every single one—and then listen in to overseas connections, and any domestic calls that have piqued their interest thanks to this data-mining and pattern analysis?

It can’t be because the program helps catch terrorists (from the New York Times via georgia10):

WASHINGTON, Jan. 16 - In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month. But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

(and updated in today’s Washington Post)

After the New York Times disclosed the eavesdropping in December, the White House dubbed it a "terrorist surveillance program" and said it involved only international communications by people with "known links" to al-Qaeda and its allies. The Washington Post reported in February that about 5,000 Americans had been subject to eavesdropping under the program and that nearly all of them had been cleared of suspicion.

And that 5,000 was just from the previously-revealed part of the spying program—it does not (I think) include whatever has resulted from the hundreds (maybe thousands) of terabytes of communications data that have been collected under this broader domestic troll.

"Both the attorney general and the president have lied to the American people about the scope and nature of the NSA's program," said Anthony D. Romero, executive director of the American Civil Liberties Union. "It's clearly not focused on international calls and clearly not just focused on terrorists. . . . It's like adding more hay on the haystack to find that one needle."

Valdis Krebs, apparently an expert on “social network analysis” picks up the needle/haystack metaphor:

If you're looking for a needle, making the haystack bigger is counterintuitive. It just doesn't make sense.

Certain people are more suspicious than others. So you start with them. And you work two steps out. If none of those people are connected, you don't have a cell. Because if one was there, you'd find some clustering. You don't have to collect all the data in the world to do that."

The right thing to do is to look for the best haystack, not the biggest haystack. We knew exactly which haystack to look at in the year 2000 [before the 9/11 attacks]. We just didn't do it...

The worst part -- the thing that's most disappointing to me -- is that this is not the right way to do this. It's a waste of time, a waste of resources. And it lets the real terrorists run free.

Yeah, but some of you are saying, I do nothing wrong, why not better safe than sorry? Oh, lots of reasons:

"To me, it's pretty clear that the people working on this program aren't as smart as they think they are," says former Air Force counter-terrorist specialist John Robb. "Some top level thinking indicates that this will quickly become a rat hole for federal funds (due to wasted effort) and a major source of infringement of personal freedom." John gives a bunch of reasons why. Here's just one:

It will generate oodles of false positives. Al Qaeda is now in a phase where most domestic attacks will be generated by people not currently connected to the movement (like we saw in the London bombings). This means that in many respects they will look like you and me until they act. The large volume of false positives generated will not be hugely inefficient, it will be a major infringement on US liberties. For example, a false positive will likely get you automatically added to a no-fly list, your boss may be visited (which will cause you to lose your job), etc.

OK, so let me get this straight: it’s unpopular, it doesn’t work, and it is hugely expensive. . . oh, and, it’s illegal, to boot! So why are they doing this? Does the Bush Administration see an al-Qaeda operative under every bed? Do they see each and every one of us as a potential terrorist?

Or is this just Bush & Co. using the tools available to those in power to do really thorough opposition research?

Let me quote another movie: “I. . . am. . . so. . . scared. . . right now.”

(t.o.t.h. to georgia10 for the Krebs and Robb link)

Thursday, May 11, 2006

Why are Democrats Still So Bad at Math?

About two months ago, I questioned Democratic Party strategy in light of repeated revelations of Republican wrongdoing and Bush’s falling poll numbers. Since then, there has been a virtual cavalcade of stories about Republican and administration misdeeds, and poll after poll has signaled broad-based disapproval of the President and his rubberstamp Congress.

Read the papers, turn on the TV, and you’ll see this week is no different. (Read the rest of this post, and you will see, sadly, that Democratic “strategy” is also little changed.)

On a day when it is revealed that AT&T, Verizon, and BellSouth have been helping the National Security Agency keep tabs on tens of millions of Americans by collecting data on international and purely domestic phone calls, we are informed that the Justice Department ethics office is dropping its probe into the conduct of DoJ lawyers involved with the approval of the NSA’s warrantless domestic spying program because the investigators were denied security clearances.

First, it was clear from the language used by Abu Gonzales and G-dub back in December, after The New York Times published revelations about the NSA’s illegal domestic spying, that there was more to the spy program than the eavesdropping on international calls that the Pulitzer Prize-winning story revealed. Now we have confirmation:

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

"It's the largest database ever assembled in the world," said one person, who, like the others who agreed to talk about the NSA's activities, declined to be identified by name or affiliation. The agency's goal is "to create a database of every call ever made" within the nation's borders, this person added.

Every call ever made—how is that legal? Well, it is legal because the lawyers somewhere in this government say so. Who? How? Why? We don’t get to know that because, well, lawyers somewhere in the government say so:

The head of the [Justice Department’s] Office of Professional Responsibility, H. Marshall Jarrett, wrote in the letter to Representative Maurice D. Hinchey, Democrat of New York, that "we have been unable to make meaningful progress in our investigation because O.P.R. has been denied security clearances for access to information about the N.S.A. program."

Mr. Jarrett said his office had requested clearances since January, when it began an investigation, and was told on Tuesday that they had been denied. "Without these clearances, we cannot investigate this matter and therefore have closed our investigation," the letter said.

Mr. Hinchey said the denial of clearances was "hard to believe" and compounded what he called a violation of the law by the program itself, which eavesdrops without court warrants on people in the United States suspected of ties to Al Qaeda.

Brian Roehrkasse, a Justice Department spokesman, said that the N.S.A. program was "highly classified and exceptionally sensitive" and that "only those involved in national security with a specific need to know are provided details about this classified program." He said the legality of the eavesdropping program had been reviewed by other Justice Department offices and by the N.S.A. inspector general.

Representative Hinchey is appropriately scandalized. Will others be as upset? (If the level attention this is given in today’s NY Times is any indication, not so much. The quote above is, minus one sentence, the entire article on the subject.)

The pending confirmation hearings for DCI designate Gen. Michael Hayden should give Senate Democrats ample opportunity to reinvigorate the debate over the program Hayden oversaw during his tenure as head of the NSA. But, if we are to believe this Bloomberg report, they’re not going to:

Democrats say they will focus their fire on Michael Hayden's military background and suitability to head the Central Intelligence Agency when Senate confirmation hearings begin next week -- and won't emphasize the nominee's role in running a much-criticized eavesdropping program.

Emphasize his military background and suitability? Why? To show he’s a solid citizen with a lifetime of service? To shift the debate from the wildly unpopular President Bush and his administration’s complete disregard for the rule of law? I can’t even think of what poll would tell the Dems to do this. . . . Oh, wait, here it is (from the same Bloomberg piece):

The Democrats' reluctance to engage Hayden on the eavesdropping may be explained by polling data that shows voters are far less critical of the surveillance program than of Bush's oversight of Iraq.

Forty-eight percent said it was acceptable for Bush to authorize the surveillance compared with 47 percent who said it was unacceptable, according to a Bloomberg/Los Angeles Times poll conducted April 8 to 11 among 1,357 adults.

I’m sorry, but that’s half of America that disapproves—half! Talk about illegal surveillance a little more, engender a little more reporting on the matter, tie the domestic spying to a president increasingly seen as corrupt, out of touch, and unconcerned with the limits placed on his power by the US Constitution, and I promise you will see the “unacceptable” number grow well beyond the margin of error. And, not only would Hayden’s confirmation hearings give Democrats a great stage for such talk, it would force Republicans to defend the program and the President. With Bush’s approval rating clocking in at 31%, and “right track/wrong track” pushing past two-thirds “wrong,” I think that’s just good election year politics.

But maybe the Democrats are seeking other counsel:

Bush administration officials and their Republican congressional allies have said they would welcome a fight over the surveillance program, which Hayden initiated during his tenure as director of the National Security Agency.

Oh, that’s it—Senate Dems don’t want to play into Republican hands. . . . Hello? Do we really need to have a refresher course on the story of Br’er Rabbit? If Senate Republicans really welcome a fight over warrantless domestic surveillance, then why has the Intelligence Committee abandoned all visible oversight of this program? If the administration welcomes the spotlight, then why have they just killed their own Justice Department’s investigation?

Rather than allowing themselves to be stared down by the Republicans, why don’t Democrats listen to the American people? Like the 67% who think Congress does not ask enough questions of this administration.

Update: Case in point: both cases; both points.

The splash headline on AOL’s “welcome” page today is “Bush Denies Breaking Law.” For those that need a little hand-holding on this, that’s the President’s name and law-breaking in the same sentence. Further, the denial is messy:

"Our intelligence activities strictly target al-Qaida and their known affiliates," Bush said. "We are not mining or trolling through the personal lives of innocent Americans."

That’s completely untrue—on two counts. By definition, if you want to log every phone call made in the US, then intelligence activity is not strictly targeting al Qaeda, and, again, by definition, looking for patterns in records of all calls and e-mails is both mining and trolling. In addition, as georgia10 has noted, Bush’s “explanation” directly contradicts Gen. Hayden’s own stated goals for the program:

I have met personally with prominent corporate executive officers. . . . And last week we cemented a deal with another corporate giant to jointly develop a system to mine data that helps us learn about our targets.

Still, the Democratic leadership is having trouble getting upset about this. Raw Story reports that 72 members of the House have filed amicus briefs in two federal courts challenging the legality of the NSA’s warrantless eavesdropping. The briefs emphasize that Congress never authorized such behavior. And yet, neither Minority leader Nancy Pelosi (CA) nor whip Steny Hoyer (MD) has joined the brief. (hat tip: nowheredesign) Is Rep. Pelosi afraid that Tim Russert will once again call standing up for the laws of the land “payback?”

And speaking of laws, let’s not forget that once again, no matter what Bush “denies,” the law has been broken. How do we know? Qwest Communications has refused to participate in this program. As Glenn Greenwald quotes from deep in the USA Today article:

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

Now, if Quest has the guts to stand up for congressionally mandated oversight, why doesn’t Congress? And if AOL can associate the President with breaking the law, why can’t the Democrats?

(cross-posted over at Daily Kos)