Tuesday, November 06, 2007

Ashcroft and the Times: credibility on the line

I didn’t know that the New York Times now ran advertising on its op-ed page.

And free advertising, at that.

Op-Ed Contributor
Uncle Sam on the Line

. . . .

John Ashcroft was the United States attorney general from 2001 to 2005. He now heads a consulting firm that has telecommunications companies as clients.

While I applaud the New York Times for running a disclaimer, of sorts, in the “about the author” space at the foot of the article, my question is why bother to run this “opinion” piece at all?

I mean, honestly, is it still called an opinion if you are getting paid large sums to express it? To me, that sounds like a job.

And the Times is frankly much too happy to augment Ashcroft’s pay.

Worse still, the former attorney general’s column is so filled with sophistry and outright lies as to render its publication the height of journalistic irresponsibility.

First, Ashcroft follows his pal Jay Rockefeller in perpetuating a dangerous myth while running cover for his corporate benefactors. Last week, the Senator from West Virginia shilled for a telecommunications industry that has given him tens of thousands of dollars in campaign contributions while lying about the origins of the warrantless surveillance program(s) ordered by the Bush Administration. Monday, Ashcroft reiterated the same blatant falsehood with his first sentence:

FOR almost two years, the country has debated whether the Bush administration acted properly and lawfully in undertaking emergency surveillance operations of suspected foreign terrorists on presidential authorization in the wake of 9/11.

By my dictionary, “wake” means “after,” and we now know, as a reportedly outraged Ashcroft knew many years ago, the illegal spying started before the attacks of September 11, 2001. (I provided over a dozen citations for this point in my discussion of Jell-O Jay’s WaPo op-ed.) So, here, Ashcroft, like Rockefeller, is lying.

Next up in Mr. Ashcroft’s bullshit-filled billet-doux to the telcos, this little gem:

Whatever one feels about the underlying intelligence activities or the legal basis on which they were initially established, it would be unfair and contrary to the interests of the United States to allow litigation that tries to hold private telecommunications companies liable for them.

Of course, this comes from a man that threw a shroud over the statue of Justice. Nothing could be more fair than to allow both the plaintiffs and the phone companies their day in court, where both side could air their evidence before an impartial arbiter. In fact, it is the former chief law enforcement officer that prejudges, here—inherent in his plea is the assumption that the telecoms are guilty.

And nothing could be less “contrary to the interests of the United States” than getting this nefarious behavior—certainly in the case of the administration of which Ashcroft was once a part, allegedly in the case of companies like AT&T and Verizon—out in open court, where its legality and efficacy could be debated with both sides under oath. It might be contrary to the interests of the White House, or to the interests of Mr. Ashcroft and his telco clients, but moving forward with the various court cases would benefit this country’s democracy immeasurably.

Ashcroft continues:

Longstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities. The public officials in question might be right or wrong about the advisability or legality of what they are doing, but it is their responsibility, not the company’s, to deal with the consequences if they are wrong.

To deny immunity under these circumstances would be extraordinarily unfair to any cooperating carriers. By what principle of justice should anyone face potentially ruinous liability for cooperating with intelligence activities that are authorized by the president and whose legality has been reviewed and approved by our most senior legal officials?

As a practical matter, in circumstances involving classified intelligence activities, a corporation will typically not know enough about the underlying circumstances and operations to make informed judgments about legality. Moreover, for an initiative like the terrorist surveillance program — which the Office of Legal Counsel made clear was based on the Congressional authorization for the use of military force and the president’s war powers under the Constitution — a telephone company simply has no expertise in the relevant legal issues.

Here, the mind boggles. First, American corporations maintain legions of high-priced lawyers specifically because they don’t believe that they can take government officials at their word. Laws and regulations are interpreted almost daily. And, as the case of Joseph Nacchio, former head of Qwest Communications, proves, corporate lawyers can and have disagreed with the “assurances” of government apparatchiks as to the legality of secret activities.

Qwest’s attorneys seem to have understood something that Ashcroft and so many of his former administration colleagues don’t—we are a government of laws, not of men.

As a practical matter, in these specific circumstances, the telecommunications corporations involved knew plenty about the underlying circumstances and operations to make a judgment—as Qwest, indeed, did. The NSA was quite specific about what they wanted, and in fact drew up rather explicit technical requests, since early on (again, before 9/11), the spy agency had decided to outsource much of its fiber-optic infrastructure. (This is not a secret. Qwest’s expectations of receiving contracts for this project are at the heart of Nacchio’s legal woes.)

In addition, thanks to just the sort of legal proceedings that Ashcroft wants to suppress, we also know the outline of what the Bush Administration asked of the telecoms, and we know that the telecoms understood what was requested—because most of them cooperated. Though it can be debated what was part of the Total Information Awareness program, what was part of project Groundbreaker, and what was part of Pioneer-Groundbreaker, we know that taken as a whole, the White House and the NSA were seeking both to split fiber-optic lines to harvest all the digital data that those lines carry, and also to collect all the call records of Americans that made or received an international call—and perhaps the records of those that had only made domestic calls as well. And the Bush Administration sought to do this without going through the Federal Intelligence Surveillance Court—which is (or was, until Congress capitulated to White House demands in August) a violation of the Federal Intelligence Surveillance Act.

Moreover—to borrow Mr. Ashcroft’s transition—the Office of Legal Council does not have the authority to make any such determination as to the legality of this program. John Ashcroft, of all people, should—and does—know this. After all, it was Ashcroft that rose from his hospital bed to rebuff then Bush counsel Alberto Gonzales on Gonzo’s attempt to do an end-run around the Attorney General, or acting Attorney General, as James Comey was for the time that Ashcroft was hospitalized, on one of the aspects of the warrantless surveillance programs now under scrutiny.

Further, it is a matter of public record that allowances for such spying without a court order were not granted by the Authorization for Use of Military Force. The administration came to then Senate Majority Leader Tom Daschle for such FISA workarounds, and Daschle specifically excluded this authority from the AUMF. That Ashcroft would again posit such a specious argument is the height of factual dishonesty and personal disrepute.

And the hits keep coming.

Even more important than the inherent unfairness of requiring companies to second-guess executive-branch legal judgments are the acute dangers to which it would expose the country. One of our nation’s most important comparative advantages over our adversaries is the creativity and robustness of the private sector. To cut ourselves off from that advantage would amount to a form of unilateral disarmament.

Yet if we allow the litigation to continue, that is precisely what we will do. The message that will be sent to American companies is that they can be exposed to crippling lawsuits for helping the government with national security activities that they are explicitly assured are legal. The only rational response would be for companies to adopt an attitude of extreme wariness, even in the most urgent or clear-cut situations. To put the matter plainly, this puts American lives at risk.

This might be news to the former head of law enforcement, but the judicial branch, not the executive, makes legal judgments. And, going further, the last thing any American, from the founding fathers forward, would want would be to leave our security to the “robustness of the private sector.” I know that’s something that intrigues the patrons of Blackwater USA and other initiatives to outsource responsibility, but we elect a government and fund all three branches through our taxes so that the public sector will take the lead on national security. And we have a Constitution to make sure that they do so within the rule of law.

As for those purportedly “crippling lawsuits,” I guess the only smart response would be for companies to be extremely wary, especially when, as the Qwest case has shown, an administration that plays fast and loose with the Federal Code will punish you for not cooperating. And, as is too often conveniently forgotten by proponents of breaking surveillance law, the FISA statute allows for three days, and sometimes up to a year, of spying before a FISA warrant must be sought. If a situation is so urgent that spying must start immediately, without going to a secret court, it can. If the urgency persists, than certainly a case could be made for putting an extra lawyer or two on the warrant application to comply with future deadlines.

But, as is often the case with Bush, Cheney, and their comrades, it is lines like that last one in the quote above—the waving of the bloody shirt—that are so thoroughly shameless. . . and shameful.

There is no instance—not one—where the Bush Administration can point to a life lost because of a legal requirement, nor can they show us any lives saved because they have ignored them. If anything, the last two years of revelations about the illegal spy programs prove quite the opposite.

As put forward in the discussion of the Rockefeller op-ed, since these programs began as early as February of 2001, if the warrantless surveillance was intended to catch terrorists, than 9/11 proves the program to be a failure. As is the case in so many instances where administration officials claim it necessary to violate US or international law, all of the information the government needed to foil the September 11 attacks was obtained through conventional, legal means, and was available to Bush, Cheney et al. had they been interested enough to pay attention.

Not content with that insult to our intellect and decency, Ashcroft continues:

Although the lawsuits are couched in the language of accountability and the public’s right to know, they would really have the effect of showing the world and our enemies sensitive secrets about how our national security agencies do their work.

This might come as news to Ashcroft (though it shouldn’t), but terrorists realized long ago that talking on telephones and sending e-mail was not a secure way to communicate. How did they find this out? Mostly because time after time, Bush and various high-ranking administration officials spoke in public about ongoing investigations in order to score political points. In fact, Ashcroft himself has been accused of just such a misstep.

Today, it is believed that alleged terrorists more often carry data by hand, or coordinate via an assortment of websites. These websites are published for all the world to see, but it takes good, old-fashioned intelligence work to find, watch, and translate these sites. The intel community has complained on previous occasions that such productive methods have been given short shrift while the administration dedicated personnel and financial resources to high-tech and often warrantless surveillance. (There was also a recent case in which an on-going investigation that relied on website intelligence was compromised by an eager to scare, blabbermouth Bush.)

Ashcroft has more:

For domestic purposes, proper accountability already exists — through the people’s elected representatives on the House and Senate Intelligence Committees. It is through the legislature, not lawsuits, that we as a nation have tried to balance the need to let our intelligence agencies operate in secret, as they must if they are to be effective, and the need to ensure that they do so lawfully.

Again, the former head of the Justice Department fails to understand or at least acknowledge the role of the courts as explicitly outlined in the Constitution. It is through the checks and balances exercised by all three branches of government that we as a nation moderate the excesses of any one branch. The matter of determining whether any one program or pursuit is lawful or constitutional is expressly given to the Judiciary. Any C student should be able to fill-in Ashcroft on these finer points of high school civics.

And, speaking of civics, Ashcroft informs us:

The Senate Intelligence Committee has voted 13-2 to grant immunity to telecommunication carriers that have been sued for helping the country after 9/11. Unlike most everyone else, this committee had the necessary and relevant facts when it rendered judgment.

Well, what Ashcroft fails to disclose is that, first, it was the Senate Judiciary Committee that had requested that they be availed of these “necessary and relevant facts,” but the Bush Administration prevented them from seeing this information, instead favoring the much friendlier eyes of the Jay Rockefeller-lead SSCI. (The administration finally relented and allowed Judiciary Chair Patrick Leahy and Ranking Member Arlen Specter to see documents last week, and it should be noted that they still oppose immunity.) Second, the House Intel Committee passed a revised FISA bill that specifically did not include retroactive immunity for telecommunications companies. Third—again, a civics lesson—it requires the entire Senate (and the entire House) to vote for a bill before it has a chance at becoming a law (someone needs to send John a DVD of Schoolhouse Rock). Sen. Chris Dodd (D-CT) has placed a hold on the bill, and says he won’t allow a draft that contains immunity to come to a vote, so the future (and general acceptance) of Ashcroft’s much-loved workaround is, at the very least, still an open question.

And, finally, Ashcroft sums it up for us:

Assuming that the country’s communications companies helped the National Security Agency track Qaeda operatives and other terrorists after being assured that their conduct was lawful, they acted as patriots, not privacy violators.

Alas, poor Ashcroft, a judge (remember those, John?) has already ruled on this assumption:

[F]ederal judge Vaughn Walker ruled against AT&T in Aug. 2006, specifically citing the fact that the company was not operating in “good faith” when it participated in the warrantless wiretapping program. Judge Walker wrote:

AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.

I believe there’s some fancy Latin term that’s appropriate here, but I’ll put it in plain English, so that legal half-wits like John Ashcroft can understand: By your definition, the conduct of the telecoms and the government that coerced them was unlawful. They were not patriots, they were violators of our privacy, of the FISA law, and of the Fourth Amendment. Q.E.D. (I couldn’t resist.)

Once again, as he did so many times when he was Attorney General, Ashcroft has exhibited a zealous pursuit of personal interests and a glaring ignorance of the law. He is, as someone once admonished, entitled to his own opinions, but not his own facts. When we as readers of the New York Times turn to the opinion page, we are entitled to informed, thoughtful, and earnestly argued opinions; we should not be subject to columns of calumny for cash.

I was going to simply call it advertising, but advertising is actually required to back up its assertions. Because his opinion has been commissioned rather than researched, Ashcroft—and, so, the Times—cannot.

(h/t hhex65)

(cross-posted to Daily Kos and The Seminal)

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Blogger guy2k said...

A little update:

It's good to know that Sen. Russ Feingold has my back. . . along with several others that wrote to the Times.

NYT usually publishes a representative sample of the opinions it receives, so it is important (and, dare I say, heartwarming) to note that every letter on the Ashcroft "op-ed" is in opposition to the contentions of the former AG.

4:05 PM  

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