AG to US: FU

Attorney General Michael Mukasey was on Capitol Hill yesterday, welcoming the House Judiciary Committee—and all of us Americans—to the era of recourse-free government.

In what can’t possibly be over-reported (but, alas, will be noticed by very few—it is not on the front page of the New York Times, for instance, and their short story about the hearing, buried deep inside, only mentions the AG’s face off with Congress over cocaine sentencing guidelines), Mukasey made several startling declarations:

• No, the Justice Department will not be investigating whether the now-admitted-to waterboarding of US prisoners was against the law.
• And, no, the DoJ will not be investigating whether the Bush Administration’s warrantless surveillance was illegal. Nor will the AG appoint a special prosecutor to investigate.
• And, no, the Department of Justice will not enforce any contempt citations that Congress might bring against administration officials that have failed to honor subpoenas for testimony.

“How can that be?” say so many (Democratic) members of the HJC.

“Because we’re just not going to,” says the imperious AG.

“But aren’t you sworn to uphold the law?” the perplexed HJC members ask.

“We are the law,” blurts Mukasey.

No, that’s not an exact verbatim—but you might be shocked to find just how close it is. The transcripts are quite lengthy, so let me borrow Paul Kiel’s quick summary of an exchange with New York Rep. Jerrold Nadler over appointing a special counsel to look at the warrantless wiretaps (you can find the complete transcript below that post):

The question came after Mukasey had baldly asserted that it was not a "practical view" that the president could order someone to act outside the law. Nadler wanted to know if the president hadn't done just that with his warrantless wiretapping program, which had ignored the constraints of FISA.

Well, Mukasey said, the President had ordered that on the advice of the Justice Department that it was lawful. So, just as he will not initiate an investigation of waterboarding since the DoJ had given its OK, he will also not investigate whether the warrantless wiretapping was lawful, since it was legal, because the DoJ said it was ("there are views on both sides of that" he acknowledged).

You’ve got your Nuremburg Defense, you’ve got your executive privilege, and you’ve got a bucket-full of L’État c’est moi—and it all adds up to the most arrogant, bald-faced, and shameless defense of the unitary executive “theory” ever uttered by this administration (and, yes, I know, that is saying a lot).

What AG Mukasey is claiming—and what he is establishing unless Congress does something quickly to contradict him—is that there is effectively only one branch of government, and that is the Executive Branch. The AG’s statements do not allow for congressional oversight, and they do not allow for judicial oversight. It does not even allow for the rule of law, since the law is whatever the President instructs his Office of Legal Counsel and Attorney General to say it is. How can we know what he instructed? We can’t—that’s a state secret or subject to executive privilege. What if a member of Congress, or a judge, or any US citizen has a problem with that? Tough luck—you have no effective recourse beyond the whims or benevolence of the President/Emperor.

This doesn’t just trample on the United States Constitution—it abrogates the Magna Carta.

Perhaps it is easy to chalk this up to business as usual for a corrupt administration that is less than a year from out the door, but that would be letting Mukasey and his bosses off easy, and it would be letting the country down. While it is unbelievable that the establishment media won’t cover this power grab, it will be unforgivable if Congress doesn’t correct it.


(cross-posted on The Seminal and Daily Kos)

Too pissed to blog

I really thought that with the elevation of Democrats to the leadership of both houses of Congress that the worst of my politicocentric rages were behind me—but today, my cardiovascular system and I discovered that I was wrong.

WASHINGTON, Oct. 8 — Two months after insisting that they would roll back broad eavesdropping powers won by the Bush administration, Democrats in Congress appear ready to make concessions that could extend some crucial powers given to the National Security Agency.

Administration officials say they are confident they will win approval of the broadened authority that they secured temporarily in August as Congress rushed toward recess. Some Democratic officials concede that they may not come up with enough votes to stop approval.

Say what??? Are you fuckin’ kidding me? Have we learned nothing. . . again? Did the Democratic leadership fail to read the editorials back in August that shot their cavalier strategizing square through the strangely missing moral core? Did they fail to read my blog???

Sadly, everything—absolutely everything—that I, the New York Times, the Washington Post and Rep. Jerrold Nadler (D-NY) said back in August still applies (please take a moment to click back to that post—I can’t bear to write it out again). And that leaves me seething to point of crimson face and bulging eyes.

Today, even the previously resolute and admirable Rep. Nadler seems to be showing his jelly-leg.

Mr. Nadler said that he was worried the Senate would give too much ground to the administration in its proposal, but that he was satisfied with the bill to be proposed on Tuesday in the House.

“It is not perfect, but it is a good bill,” he said. “It makes huge improvements in the current law. In some respects it is better than the old FISA law,” a reference to the foreign intelligence court.

Not perfect, in this case, is not good enough. . . and not at all good. Calling the proposal an improvement on the current law is like calling a stake through the heart an improvement on water-boarding followed by a stake through the heart. I will remind everyone, including Mr. Nadler, that all the Democrats have to do (like all they had to do in August) is NOTHING. This colossal capitulation mistake is set to expire around Valentine’s Day—this no time to pen another love letter to the Bush Administration and its cowardly pals in Congress.

Jerrold Nadler is my Representative, and I plan to give him a piece of my mind. I urge all of you to do the same with the men and women that claim to represent you. . . especially if he or she is a Democrat. (I can’t believe I just wrote that. . . I can’t believe I just had to write that.)

Remind them that you support moral representatives that uphold their oath to defend the Constitution against all enemies, foreign and domestic—including the Bush/Cheney Administration.

Remind them that our most basic liberties hang in the balance. Tell them that you will stand by them if they stand strong themselves. Teach them what you and civil liberties experts already know about this purported FISA compromise:

‘This still authorizes the interception of Americans’ international communications without a warrant in far too many instances, and without adequate civil liberties protections,” said Kate Martin, director of the Center for National Security Studies, who was in the group that met House officials.

Caroline Frederickson, director of the Washington legislative office of the American Civil Liberties Union, said she was troubled by the Democrats’ acceptance of broad, blanket warrants for the security agency rather than the individualized warrants traditionally required by the intelligence court.

“The Democratic leadership, philosophically, is with us,” Ms. Frederickson said. “But we need to help them realize the political case, which is that Democrats will not be in danger if they don’t reauthorize this Protect America Act. They’re nervous.

“There’s a ‘keep the majority’ mentality, which is understandable,” she said, “But we think they’re putting themselves in more danger by not standing on principle.”

Indeed, they are putting us all in danger. Let we the people try not to let that happen.

(Gosh, I guess that you just can’t really be too pissed to blog—who knew?)


Update: Apparently things are at least a little grayer than the Gray Lady would have us believe. According to Glenn Greenwald and Christy Hardin Smith, there is much to feel good about in the House version of this legislation. Christy is urging folks to call their Reps in support of the work of the House Progressive Caucus in restoring some safeguards and adding some new requirements to the FISA process.

Serves me right to go on record after only reading the paper of record.

Of course, the proof is in the endgame, which will involve the Senate and some serious backroom bullying and front room grandstanding by the likes of GW, Dick, and Mike McConnell. I am still uncomfortable with the idea of “umbrella warrants,” and, frankly, the whole idea of a secret FISA court strikes me a singularly anti-American, but, from a lobbying and calling your Representatives standpoint, perhaps it is best we keep our powder dry for the moment, and call to support what we like about this Conyers-Reyes proposal.


(cross-posted on guy2k and Daily Kos)

Dem Agog

As today’s papers trumpet the president’s signing of his asked for and granted blank check to spy without warrant in any way he wants on practically anybody, foreign or domestic, I am still somewhat amazed, aroused, and most certainly horrified by what happened this weekend.

When I went to bed Friday night, I was dreaming of a post about how the administration had saved Democrats from themselves by trashing the deal struck with Congress by the president’s own Director of National Intelligence, Mike McConnell. I was even going to make fun of the president by pointing out that he clearly has no idea who his Director of National Intelligence is—I heard Bush on the radio call him “DNI guy,” and then read this quote:

When Congress sends me their version, when Congress listens to all the data and facts and they send me a version of how to close those gaps, I'll ask one question, and I'm going to ask the DNI: Does this legislation give you what you need to prevent an attack on the country? Is this what you need to do your job, Mr. DNI? That's the question I'm going to ask. And if the answer is yes, I'll sign the bill. And if the answer is no, I'm going to veto the bill.

Mr. DNI? Isn’t that a DEVO song?

Anyway, “Mr. DNI” did strike a bargain that he said allowed him to do his “job,” and Bush threatened to veto it anyway, because he thought it would be much more fun (fun = politically advantageous) to spend the August recess demagoging about how Democrats are all soft on terrorism, blah, blah, blah. . . .

Or so I thought that was why. . . . Now, I know. . . the rest of the story.

I don’t know if this was a have our cake and eat it too strategy, or just that President Cheney took a look at the McConnell deal and said “I want more,” or House Minority Leader John Boener’s loose lips leak on Fox News made it imperative that the White House seek broader political and legal cover for the extra-constitutional surveillance they have been doing since the earliest days of this administration, but it seems that, whatever the motivation, Bush/Cheney thought they could win a staring match with Congressional Democrats.

And, indeed, come late Saturday night, the Dems blinked.

I don’t know if I can say it any better than my very own Representative, Jerrold Nadler, did during the Saturday floor debate. . .

This bill is what Karl Rove and his political operatives in the White House have decided they need to win elections. That’s not national security. That’s political warfare.

I do not believe we will soon be able to undo this damage. Rights given away are not easily regained. This bill is not needed to protect America from terrorists. The only purpose of this bill is to protect this administration from its own political problems and cynicism, and its own illegal actions it has taken outside the law without any authorization.

. . . or put it any more starkly than today’s New York Times article on the bill signing. . .

Congressional aides and others familiar with the details of the law said that its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They said seemingly subtle changes in legislative language would sharply alter the legal limits on the government’s ability to monitor millions of phone calls and e-mail messages going in and out of the United States.

They also said that the new law for the first time provided a legal framework for much of the surveillance without warrants that was being conducted in secret by the National Security Agency and outside the Foreign Intelligence Surveillance Act, the 1978 law that is supposed to regulate the way the government can listen to the private communications of American citizens.

“This more or less legalizes the N.S.A. program,” said Kate Martin, director of the Center for National Security Studies in Washington, who has studied the new legislation.

. . . but I can say that I am shocked by, angry at, and ashamed of the Democrats that allowed this to happen. Simply put, their performance this weekend (many fine speeches like Nadler’s not withstanding) was disgusting.

As the Washington Post puts it in an editorial appropriately titled “Warrantless Surrender,”

THE DEMOCRATIC-led Congress, more concerned with protecting its political backside than with safeguarding the privacy of American citizens, left town early yesterday after caving in to administration demands that it allow warrantless surveillance of the phone calls and e-mails of American citizens, with scant judicial supervision and no reporting to Congress about how many communications are being intercepted. To call this legislation ill-considered is to give it too much credit: It was scarcely considered at all. Instead, it was strong-armed through both chambers by an administration that seized the opportunity to write its warrantless wiretapping program into law -- or, more precisely, to write it out from under any real legal restrictions.

. . . .

This is as reckless as it was unnecessary. Democrats had presented a compromise plan that would have permitted surveillance to proceed, but with court review and an audit by the Justice Department's inspector general, to be provided to Congress, about how many Americans had been surveilled. Democrats could have stuck to their guns and insisted on their version. Instead, nervous about being blamed for any terrorist attack and eager to get out of town, they accepted the unacceptable. Most Democrats opposed the measure, but enough (16 in the Senate, 41 in the House) went with Republicans to allow it to pass, and the leadership enabled that result.

(That’s a Washington Post editorial, mind you—as some may have noticed, they have hardly been harsh critics of the GWOT™ over the last six years.)

Indeed, as the Post observes, even though many Democrats voted against the legislation, the Democratic leadership could have stopped this shameful bill cold. Why Harry Reid and Nancy Pelosi chose not to defies logic.

Cowardice is an easy explanation, but how afraid do you really have to be of a president whose approval rating is now consistently below 29%, and trending down with each passing day? Nobody likes this guy anymore, and, more importantly, nobody trusts Bush anymore to keep them safe. What is there to fear here, except the proverbial “fear itself?”

And even if Bush was somehow more popular and less of a lame duck, there are matters of principle and pragmatism that argue strenuously against this weekend’s kowtow.

Some things are just not negotiable—even for political expedience. The Constitution is one of those things. The six-month sunset provision in this bill does not make it OK—I don’t know where in the Bill of Rights it says that the first, fourth, fifth, and sixth amendments get to occasionally take time-off for the purposes of partisan politicking.

Further, does the Democratic leadership think that once given, this White House is going give back any of these powers? What will inoculate Democrats from the same demagoguery half a year from now? Why do they think that Bush Administration lawyers will even consider the sunset provision to be binding? Have we learned nothing from our experiences with the AUMF?

And, do Democrats not yet realize that the purpose of the administration’s far-reaching spy programs has nothing—nothing—to do with terrorism, and everything to do with suppressing dissent and destroying political opposition? Evidence has recently emerged that many of the programs we now call the TSP were started prior to 9/11/01 (yes, spying may have started before we even knew of such a thing as the “war on terror”), and the language of this weekend’s legislation very specifically avoids limiting surveillance to suspected terrorists.

And, I will add one other point. Though this feels trivial when compared with the weighty issues above, this legislation is actually bad, I think, for the American economy. With the increased powers given the administration, and the increased awareness of American spying, I can easily see other global powers looking to fully isolate their communications systems from those run through and/or by the US. American Telecom firms will not only lose the fees charged international communications passing over their networks, they will lose the technological edge as a rapidly expanding global communications sector develops its own networks, launches its own satellites, and expressly refuses to share their intellectual property with the compromised US part of the industry.

So, with all that in mind, what were the Democrats thinking? Were they thinking we wouldn’t notice? Were they thinking they would call Bush’s bluff? Were they thinking “at least this gets one of the main reasons for impeachment off the table?” Were they thinking it was 2002?

Were they thinking at all?

I ask because, at this point, in 2007, it has been pointed out by pundits, polls, and progressives alike: How do Democrats expect to look tough on security issues if they can’t resist the churlish railings of an unpopular president?

Especially when the American people, and the Constitution, have their back.

Well, if Democrats continue in this fashion, then voters won’t have their backs for long. If they can’t stand up to the president, then what do they stand for? And if Americans don’t know what these Democrats stand for, then the only thing any of us are going to get excited about is seeing them replaced.

(cross-posted to Daily Kos)