Capitulation on Telecom Immunity

In February, the fear mongering over renewing the Protect America Act with a clause granting retroactive immunity for participants in the illegal NSA wiretapping program was front-and-center, with obfuscation of the facts and promises of the end of days should immunity not be included. Yet, despite these promises of doom if the act expired, Republicans were unwilling to even vote to extend the PAA to allow for further debate, and instead chose to let it lapse. Just the very fact that they let it lapse is a clear indication that even they didn't believe what they were saying.

Four months later, out of view thanks to incessant superficial coverage of the horse race, Congress is again preparing to grant immunity, only this time in the form of a compromise. But, as EFF reports, such a bargain would be a compromise in name only. In practice, it would grant clemency to the phone companies and keep hidden forever the full extent of Bush's spying program by keeping the details out of court.

Under the guise of a compromise, the legislation is designed to ensure that the only issue the courts will review is whether or not the President told the telecoms that their conduct was legal, but not whether the conduct actually was legal.

Essentially, the new bill would ensure that the question of the legality of the program would never be addressed, as it still hinges on the premise that if the Executive branch unilaterally determines something legal, it becomes so. This judiciary element of the branch is of course nowhere in the text of the Constitution, and to allow it to stand without challenge would do irreparable harm to the founding document.

The passing of a bill granting retroactive immunity would be a vindication and validation of the dangerous Unitary Executive Theory, a conception of unbridled Executive privilege which blossomed in the Nixon administration--of which Dick Cheney was a part--and has appeared in full bloom and bearing fruit in the current regime. In practice, the theory basically means that anything the Executive does cannot, by definition, be illegal by virtue of the fact that he does it. In Nixon's words, "if the President does it, it's not illegal."

The danger of that kind of circular logic should be apparent, yet is conspicuously absent from any public debate. It is quite clearly a perversion of the Constitution's establishment of the separation of powers, belief in which requires either illiteracy or a blatant erasure of significant passages from the document.

Central to debate, and essential for its success from the immunity proponents' perspective, is ritual obfuscation of the reality of the FISA statutes and often outright lies to instill fear in the American public, a task which the lazy media is all too happy to assist with.

Glenn Greenwald has been at the fore on the immunity negotiations, and one of the few people to consistently itemize the falsehoods enveloping the debate. The debate--and I use the term loosely--has always been at the root an effort to grant phone companies immunity. But next to nothing of the fear-inspiring words tossed into the fray deal with the topic at all. Instead, false pretenses and promises of imminent doom are thrown out as if the issues can't be addressed in any bill that doesn't grant immunity.

But things such as foreign-to-foreign communications have absolutely nothing to do with whether or not anyone can be held responsible for past actions.

The whole issue of "foreign-to-foreign" communications is a complete red herring. It's irrelevant in considering whether to enact the Rockefeller/Cheney Senate bill or anything close to it. Even the most stalwart civil libertarians in the Congress -- such as Russ Feingold and Chris Dodd -- have been willing from the start to amend FISA to exclude foreign-to-foreign communications from the warrant requirements.

If the President agreed to sign it, Congress could pass a law amending FISA in one day to fix that particular "problem," and then virtually every scary threat Lichtblau's article describes would instantaneously disappear. All of the supposed fears and dangers Lichtblau's article cites are an absolute sideshow because virtually every member of Congress is willing right this minute to pass a law to amend FISA to eliminate the cause of those supposed dangers -- i.e., the requirement that warrants be obtained to eavesdrop on foreign-to-foreign calls. Pointing to the "dangers" from that requirement in order to justify passing the Rockefeller/Cheney bill is exactly the same as pointing to the threat posed by Al Qaeda in order to justify invading Iraq; one has nothing to do with the other.

What this passage illustrates is that the Republicans and Blue Dog Democrats, for all of the hype, are not the least bit worried about the actual dangers stemming from a failure to pass a new FISA bill. As Greenwald states, no member of Congress thinks that the US should not be able to eavesdrop on foreign-to-foreign communications, even if they pass through US networks, and a bill to allow such spying could be passed in a single day. But, of course, that's not really the issue at hand, immunity is. It should blatantly obvious that granting immunity for past transgressions has absolutely nothing to do with the US's ability to track such communications, yet the debate is allowed to proceed as if that is the case. Not that the 24-hour news cycle has any room left for actual discussion of substantive topics. After all, Britney Spears may be moving hospital beds.

Another favorite talking point of immunity proponents is to declare the FISA laws outmoded, as they were fashioned decades ago when communications were not nearly as advanced as they are today. But this is another red herring. The statutes have been revised over the years, and again, no member of Congress would deny the government the ability to spy on foreign agents using methods of communication unavailable in the 70s. Nevertheless, that falsehood is promoted as another reason that immunity must be granted immediately.

Perhaps the most damning example of the obfuscation surrounding the debate is the unwillingness of the Republicans and Blue Dogs to sign extensions of the PAA. If the dangers posed by not doing so were really what they said they were, would they not then be responsible for anything that happens as a result? Republicans are held up as strong on national security, which makes it even more inconceivable that they would allow a state of (what they say) clear and present danger to persist merely to eliminate accountability for AT&T and Verizon. If they dangers are what they claim, then by extension they are willing to put Americans in danger. Why, then, do Republicans still have a monopoly on "strong on national security?"

The Democrats in Congress are more than willing to grant the intelligence community all the tools it needs for espionage. It is the Republicans who are preventing that from happening.

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John McCain and the Telecoms

It's been a while since I've addressed the issue of telecom immunity, as not much headway has been made in either direction, aside from the occasional wind-testing proposal tied to the starter's block. The contention, however, is beginning to bubble again, if only slightly, because of John McCain's public wavering on the issue.

Although previously on record as saying the President is not above the law, McCain and his advisers have backtracked in the past week.

A top adviser to Senator John McCain says Mr. McCain believes that President Bush’s program of wiretapping without warrants was lawful, a position that appears to bring him into closer alignment with the sweeping theories of executive authority pushed by the Bush administration legal team.

In a letter posted online by National Review this week, the adviser, Douglas Holtz-Eakin, said Mr. McCain believed that the Constitution gave Mr. Bush the power to authorize the National Security Agency to monitor Americans’ international phone calls and e-mail without warrants, despite a 1978 federal statute that required court oversight of surveillance.

McCain, as with every other about face he's made in the process of this campaign, denies he's changed his stance. But McCain said this to Charlie Savage six months ago:

There are some areas where the statutes don’t apply, such as in the surveillance of overseas communications. Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is.

It strains credulity to imagine what, if any, Constitutional power would grant the President the power to ignore written law. In saying so, McCain shows an increasing attraction into the orbit of President Bush's flawed legal justification of the NSA program, a justification a wide array of legal experts have declared "fails to offer a plausible legal defense of the NSA domestic spying program." Indeed, it appears an insurmountable task to find a lawyer of any import outside of the current administration who can find any legal backing for the program.

An examination of McCain's advisory team, however, leaves little want of an explanation for the waffling. The list of advisers reads like a telecom dream team, with more than a third of the 66 lobbyists on McCain's team having lobbied for the telecom industry in the past decade, with many, such as chief political adviser Charlie Black, fighting until very recently for ratroactive immunity. Three leading lobbyists for AT&T, Verizon, and Sprint listed in a September Newsweek article are now members of McCain's campaign. EFF continues to list and expand upon numerous other lobbyists involved with the Arizona Senator, eliminating any mystery surrounding the sudden shift in position.

[Note: The 66 lobbyists is a dated number from a March USA today article. As the number is inexact and fluctuates, the numbers above are meant as an anecdotal estimate giving a general perspective, not an exact statistic. At one point, McCainSource had listed as many as 134 lobbyists involved. Again, those numbers shouldn't be taken as precise.]

Whatever you think about John McCain, the only thing that has become exceedingly evident in the process of the campaign is that however principled he has been imagined throughout his career, he has ceased to be. He has changed course on nearly every significant issue except the Iraqi occupation, be it taxes, Roe v. Wade, or telecom immunity. Sure, he still throws in the occasional token environmental reference, but the only thing 'maverick' about John McCain these days is his staunch commitment to a thoroughly-reviled status quo.

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The Iranian Answer to Ahmed Chalabi Plays the Pentagon

Lost amidst the yawns greeting the release of the Senate Intelligence Committee's report on pre-war intelligence [Is it news, anymore?] was the supplemental report on the 2001 visit between Americans and Iranian exiles in Rome, in which the US solicited yet more faulty intelligence from previously-debunked exiles.

Defense Department counterintelligence investigators suspected that Iranian exiles who provided dubious intelligence on Iraq and Iran to a small group of Pentagon officials might have "been used as agents of a foreign intelligence service ... to reach into and influence the highest levels of the U.S. government," a Senate Intelligence Committee report said Thursday.

A top aide to then-secretary of defense Donald H. Rumsfeld, however, shut down the 2003 investigation into the Pentagon officials' activities after only a month, and the Defense Department's top brass never followed up on the investigators' recommendation for a more thorough investigation, the Senate report said.

The revelation raises questions about whether Iran may have used a small cabal of officials in the Pentagon and in Vice President Dick Cheney's office to feed bogus intelligence on Iraq and Iran to senior policymakers in the Bush administration who were eager to oust the Iraqi dictator.

Much as Ahmad Chalabi sold his bill of goods to eager and unwitting Bush officials like Doug Feith long after the CIA declared him an unreliable charlatan, US officials eager to depose Saddam and topple the Iranian regime eagerly soaked up faulty intelligence from Iranian exile Manucher Ghorbanifar.

Ghorbanifar, who was a middle man in the Iran-Contra dealings, was labeled a 'fabricator' by the CIA in 1984 in a notice which said Ghorbanifar "should be regarded as an intelligence fabricator and a nuisance. Any future approaches by subject...should...not be taken seriously." [SIC, pg 5] The situation mirrors that with Chalabi, whereas an exile who's been long regarded as unreliable continued to be welcomed, and paid well, by hawks in and out of the administration who were fixing the intelligence around the preordained end, rather than setting the end goal based on reliable intelligence.

Among the three members of the US party were Larry Franklin, who pleaded guilty in 2006 to passing classified information to AIPAC, Michael Ledeen, employed by the American Enterprise Institute and traveling as a citizen, and Harold Rhode, personally charged with "purging the DoD of anyone opposing the anti-Iraq policy." Surrounding Franklin's conviction, the Pentagon released a statement indicating that Franklin, in spite of the accusations, never influence Middle East policy and was thus not a liability. The Rome visits, however, belie that claim outright.

Returning to McClatchy:

The Senate committee also found that Pentagon officials concealed the contacts with Ghorbanifar from the CIA, the Defense Intelligence Agency and the State Department. Pentagon officials also provided Senate investigators with an inaccurate account of events and, with support from two unnamed officials in Cheney's office, continued meeting with Ghorbanifar after contact with him was officially ordered to stop.

Again, the Defense Department, and Feith's Office of Special Plans, was soliciting dubious intelligence from exiles, but had to conceal that it was doing so because it knew that the other US intelligence agencies would not accept any intelligence culled from meetings with Ghorbanifar as reliable. There is only one explanation for continually seeking the consult of long-debunked sources, and that is because the US team knew what they were getting. As Chalabi and Ghorbanifar supplied the stories the OSP wanted to hear, there was little concern for veracity.

Indeed, when other agencies learned of the meetings, they were none too pleased:

When the CIA and the State Department discovered that Ledeen and Ghorbanifar were involved, they opposed any further contact with the two. Ledeen's contacts, the Defense Human Intelligence Service concluded, were "nefarious and unreliable," the Senate committee reported.

On the surface, the Iranian exiles were concerned with the toppling of the Iranian regime [including a curious--and expensive--plan for a regime-crushing traffic jam], but Ledeen's association with Ghorbanifar "was widely known, and therefore it should be presumed other foreign intelligence services, including those of Iran, would know." As Iran has been the biggest strategic beneficiary of the Iraq invasion, it is not inconceivable that information could have been peddled by Iranian intelligence covertly in order to expedite the toppling of their arch-nemesis, Saddam Hussein. The animosity between Saddam and Iran seemed invisible to the OSP, however:

According to the report, Ledeen, however, persisted, presenting then-Undersecretary of Defense Douglas Feith with a new 100-day plan to provide, among other things, evidence of Iraqi weapons of mass destruction that supposedly had been moved to Iran — Saddam Hussein's archenemy.

Again Ledeen is providing a plan for the evidence he will supposedly find, rather than finding evidence and reaching a conclusion based upon it.

The Rome meetings illustrate a contradiction to the running narrative of those on the defensive over pre-war intelligence. People such as John McCain are fond of saying that, while faulty, the intelligence available at the time all told the same story and was without conflict. The reports released today tell a much different story. Aside from the shading of intelligence to fit preordained conclusions, the Bush administration actively sought the council of sources long known as "nefarious and unreliable."

That the reliability of the sources was of no concern to the DoD is perhaps one of the clearest indications of the reverse relationship between intelligence and conclusions in the years prior to the invasion of Iraq.

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John Boehner: Lawuits for Me, But Not for Thee

In what has to be the clearest case of hypocrisy seen in quite some time, John Boehner has been granted $1 million dollars in an illegal wiretapping case, even as he continues to fight for telecom immunity surrounding the illegal NSA program. Boehner, apparently without irony, justified his case by saying, "no one — including members of Congress — is above the law.” The mind reels.

Surely his statement is correct, but that hasn't prevented him from being on the front lines of preventing other Americans from having their day in court. Illegality clearly is only of importance should it affect him, but for him to extend the same standards to everyone else is too much for him to bear. He made this point clear in an interview with Brit Hume:

HUME: The other issue that has risen in connection with this bill has to do with granting an immunity from legal action, from lawsuits, to companies which, in the immediate aftermath of 9/11, cooperated with very aggressive government surveillance activities undertaken in the fear that another attack might have been right then on the way.

BOEHNER: But after 9/11, our country and our intelligence officials went to telecommunication firms and other third parties and asked them to participate in a program to help secure and bring safety to the American people, and they did.

And because they did voluntarily, I believe that they deserve immunity from lawsuits out there from typical trial lawyers trying to find a way to get into the pockets of the American companies.

This answer, of course, does nothing to address the legality of the actions, but merely says that the phone companies 'participated voluntarily.' Given that, one presumes that the company which voluntarily participated in his own case would be granted a similar assessment. One would be wrong. That voluntarily conducting illegal activity somehow alleviates guilt is preposterous.

And, as Boehner said himself, "no one is above the law."

A constant drumbeat of supporters of immunity against organizations like the ACLU and EFF, who are working for very little, is to paint them as money-hungry, unscrupulous lawyers out only to make a quick buck. But, really, the organizations are after punitive damages meant to deter future transgressions.

Boehner's own lawyer during his case:

“Punitive damages are not imposed to give awards to plaintiffs; they are imposed to punish and deter illegal conduct and to exact retribution on behalf of society for the violation of its laws,” Boehner’s attorneys, seeking damages and legal fees, argued in a court brief.

At every turn, Boehner's own case throws a wrench into his argument in favor of telecom immunity. And his sense of logic deflects all attacks with equal regularity.

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This Time We Mean It. Really.

As a parent counts to three using a series of inane fractions, so has the United States government dealt with the Iraqi exile and charlatan, Ahmed Chalabi. McClatchy reports that the US has again cut ties with one of the men most responsible for war in Iraq and the concomitant faulty intelligence.

The U.S. decision...is the fourth time that the U.S. has ended an alliance with Chalabi, whom officials in the Pentagon and Vice President Dick Cheney's office once touted as a successor to Saddam Hussein. The State Department and U.S. intelligence agencies, however, have long regarded Chalabi as untrustworthy and a "charlatan."

Ahmed Chalabi began working with the US in the late 80s in fits and starts, but rose to prominence following the first Gulf War. At that time, he was being paid by the CIA, but that agency cut him off in 1995 after it became clear to them that he was selling fraudulent goods. Despite being known by US Intelligence as a source of false information, Chalabi used his friends in Congress to convince the State Department to pick up his tab, and he continued to fight to depose Saddam Hussein.

Perhaps no single person is more responsible for building the case for invasion than Chalabi. And certainly no one intentionally provided more false information to the government and journalists, most famously Judith Miller. This false information ranged from WMD caches to phantom ties to al Qaeda and Osama bin Laden. Chalabi wanted Hussein gone, and wasn't the slightest bit concerned with the means, so long as he got the end he wanted.

Aram Roston, author of "The Man Who Pushed America to War," spoke to Amy Goodman in March and detailed how Chalabi got his false information into America's stream of consciousness:

No, exactly. It was—it’s all a slew of journals and a slew of television programs, but each one typically would get a piece of the pie that he was producing, a piece of the product of what ended up being phony propaganda that the Iraqi National Congress was coming up with. And they had a very elaborate system set in place to get these stories in the press and into the intelligence stream.

They weren’t very successful getting these stories into the intelligence stream. And what I found was they were most successful after the attacks of 9/11. People were very—they wanted stories about terror and about Saddam Hussein, about weapons of mass destruction. So Chalabi’s group became very successful at planting these stories. They weren’t that successful, it seems, in getting it into the CIA, because the CIA at that point didn’t trust a word that Chalabi’s group said. But they were much more successful in impacting public opinion. And that had an immense impact, obviously, on America.

Essentially, Chalabi was very good at running a propaganda campaign utilizing a cabal of journalist dupes and a credulous American public. The Bush administration, for its part, was all too happy to stoke the fire. But that the CIA didn't want any part of the intelligence speaks volumes about the run-up to the war. When the central agency for gathering foreign intelligence knows it's being sold rotten fruit, the policy makers and opinion shapers should have looked twice before biting down.

From a March, 2004, McClatchy article:

Feeding the information to the news media, as well as to selected administration officials and members of Congress, helped foster an impression that there were multiple sources of intelligence on Iraq's illicit weapons programs and links to bin Laden.

In fact, many of the allegations came from the same half-dozen defectors, weren't confirmed by other intelligence and were hotly disputed by intelligence professionals at the CIA, the Defense Department and the State Department.

Nevertheless, U.S. officials and others who supported a pre-emptive invasion quoted the allegations in statements and interviews without running afoul of restrictions on classified information or doubts about the defectors' reliability.

Aside from the now-obviously lack of truth to his intelligence, Chalabi has a long history of fraud and embezzlement.

Chalabi, who lives in London, fled Jordan in 1989 after his Petra Bank collapsed and was convicted in absentia three years later for embezzlement. [...]

Earlier this year, the State Department threatened to cut off the INC's funding for information programs and other nonmilitary activities after an audit turned up expenditures that were deemed questionable or were unaccounted for.

The inspector general's audit of $4.3 million in grants mostly criticized the group's accounting and payroll procedures. But it also found questionable expenses, including $2,070 for a gym membership, $5,541 for legal fees related to a rental dispute and other money used for first-class plane tickets.

The audit also suggests the INC may have used taxpayers' money to lobby in Washington, which is illegal.

The funding continued, however, illustrating a recurring theme. Chalibi, having been convicted of embezzlement and cut-off by the CIA for providing faulty intelligence, continued to misuse tax dollars with relative impunity. He would receive several threats, always to have his funding restored in the end. He would be similarly 'cut-off' in 2004, this week [which, of course, is unresolved,] and intermittently in between.

So, given that it is now indisputable that Chalabi was selling faulty goods, the only question remaining is whether the administration was simply mislead in good faith, or bought into intelligence they should have knownn was bad from the start. The former is a favorite line of defense for supporters of the invasion, but the theory doesn't hold water.

As far back as the mid-90s, the CIA knew Chalabi's story. When the Central Intelligence Agency doesn't trust the intelligence, you might want to get a second opinion before spouting it out in knee-jerk fashion.

Also, in October 2002, it was clear to many that there was plenty of dispute over the veracity of Chalabi's claims.

The Pentagon and the CIA are waging a bitter feud over secret intelligence that is being used to shape U.S. policy toward Iraq, according to current and former U.S. officials.

The dispute has been fueled by the creation within the Pentagon of a special unit that provides senior policymakers with alternate assessments of Iraq intelligence.

[...]

A major source of contention is the Pentagon's heavy reliance on data supplied by the Iraqi National Congress. The INC, the largest group within the divided Iraqi opposition, has a mixed reputation in Washington and a huge stake in whether President Bush makes good on his threat to oust Iraqi dictator Saddam by force. Its leader, Ahmed Chalabi, sees himself as a potential successor.

[...]

It is not clear whether the Pentagon solicits the views of the U.S. intelligence community on the material it collects directly from the Iraqi opposition.

A senior U.S. military official, speaking on condition of anonymity, expressed grave fears that civilian officials in the Pentagon may be blindly accepting assertions by Chalabi and his aides that a U.S. invasion would trigger mass defections of Iraqi troops and a quick collapse of Iraqi resistance.

"Our guys working this area for a living all believe Chalabi and all those guys in their Bond Street suits are charlatans. To take them for a source of anything except a fantasy trip would be a real stretch," one official said.

The special unit within the Pentagon was Doug Feith's Office of Special Plans, now known as a farcical cherry-picking operation based, not on gathering intelligence, but on manufacturing a case for war.

To claim that there was insufficient evidence as to the shaky foundation upon which the case for war was built prior to invasion is to ignore the facts. Chalabi was long known as a snake-oil salesman, and it was his un-verified intelligence that provided the crux of the case. Lifelong intelligence officers were pleading with the administration to take his information lightly, but the suits who wanted war were hearing none of it.

All of this information was available before the war. Feith and his cohorts can revise history all they want, but the evidence is there.

If Chalabi had two strikes for misusing funds and selling false information, then strike three comes from his dealings with Iran.

Roston:

Well, the Iranian group that is charged by Iran with exporting...the Islamic revolution is called the Quds Force of the Revolutionary Guards. And...the man who runs their operations in Iraq now, and did before the war, is a general named Ahmed Foruzandeh. And Ahmed Foruzandeh is considered a very talented intelligence officer, and he’s very good at covert operations for the Iranians, and he’s very committed, he’s very sophisticated, and he’s no joke. And it’s certainly true that Chalabi had met with him before the war, before the US invasion.

What concerned American intelligence officers was when they found out—they believed he was meeting—he had met with him after the invasion, while the DIA was still funding the Iraqi National Congress’s intelligence operations in Iraq. It would have been in the spring of 2004. And they had serious concerns about that.

Now, more recently, Ahmed Foruzandeh, this man I mention in the book, he’s been named by the US government itself publicly as supporting terror, supporting insurgency. He’s been designated by the Treasury Department under an executive order as a real threat to efforts in Iraq.

Passing US intelligence to Iran:

The U.S. government has launched an investigation to determine how Iraqi National Congress leader Ahmad Chalabi obtained highly classified American intelligence that was then passed to Iran, Bush administration officials said Friday.

A senior administration official, speaking on condition of anonymity because of the matter's sensitivity, said the compromised intelligence was "highly classified and damaging."

Chalabi's most recent ouster comes as "U.S. military and intelligence officials said Chalabi is close to Brig. Gen. Qassem Suleimani, the commander of the Iranian Islamic Revolutionary Guard Corps' elite Quds Force." Suleimani, you may recall, brokered the cease-fire in Basra in March, and is also a proud member of the US terrorist watch list.

It is hard to imagine any single person who has done more harm to the United States as an outsider. Chalabi has pilfered money from tax payers to provide incredible, false intelligence claims that led the nation into a drawn-out, destructive occupation. Concurrently, he is negotiating and dealing intelligence secrets to Iran, our next target and current replacement for the USSR. Not only should Chalabi not be receiving US funds, he should be in a prison somewhere. Maybe he can be extradited to Jordan for his prior conviction, I hear they treat their prisoners real nice.

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Tortured Logic

If there's one thing the War on Terror has made unambiguous, it's that ambiguity will continue to surround the actions of the United States and the Bush administration in its attempt to prevent further attacks upon the nation. Faced with preserving rights or preserving the ability of government to take those rights, Bush always sides with the latter, be it ever-growing surveillance powers or the use of torture in interrogations.

All too often, the administration is allowed to toss around misleading statements and outright falsehoods in the pursuit of those aims, and just as often cable news networks with 24 hours of space to fit questioning of the process fail miserably to that end. When the Attorney General was making up implausible scenarios in San Francisco, the news was centered on Barack Obama's inability to bowl. When the leader of the free world admitted that he knew and approved of violations of international and domestic law, the media wrapped itself in a blanket of despair over perceived elitism. From the poorest (relative term, of course) and least-established of the three candidates, no less.

What began years ago as "a few bad apples" participating in a sophomoric lapse in judgment has been fleshed out into full-fledged human rights violations under the umbrella of international and domestic statutes. And the media couldn't be less impressed.

As time has progressed from March of 2004, so has the overwhelming mountain of evidence pointing ever higher in the administration in search of the origins of the use of torture in US interrogation techniques. But, until Friday, there was nothing to link President Bush directly to the negotiations and planning. Those who thought such a revelation would portend some sort of culmination were sorely disappointed, as the country ignored the news with the same callous disregard in which Bush delivered it.

For the leader of a free nation to be admitting freely, without any hesitation or outwards sign of guilt, that he had full knowledge of his surrogates planning to break the law and be greeted with a shrug is nothing short of breathtaking.

First, it is important to emphasize that there is a definition of torture under US Code. It is a legal definition, not something which Bush or John Yoo get to manipulate with shifty words or maneuvering.

Sec. 2340. Definitions

As used in this chapter--
(1) "torture" means an act committed by a person acting under
the color of law specifically intended to inflict severe physical or
mental pain or suffering (other than pain or suffering incidental to
lawful sanctions) upon another person within his custody or physical
control;
(2) "severe mental pain or suffering" means the prolonged
mental harm caused by or resulting from--
(A) the intentional infliction or threatened infliction of
severe physical pain or suffering;
(B) the administration or application, or threatened
administration or application, of mind-altering substances or
other procedures calculated to disrupt profoundly the senses or
the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be
subjected to death, severe physical pain or suffering, or the
administration or application of mind-altering substances or
other procedures calculated to disrupt profoundly the senses or
personality; and

(3) "United States" means the several States of the United
States, the District of Columbia, and the commonwealths,
territories, and possessions of the United States.

Waterboarding has been the most-discussed method of interrogation (though the administration admits to using it on only 3 prisoners), and despite the rhetorical side-stepping of Bush and his appointees, it clearly meets the criteria of "'servere mental pain or suffering' resulting from threat of imminent death." There is really no way being made to feel as though drowning does not constitute 'threat of death.'

Yet, the act is still presented as an unclear procedure which may or may not be wrong, although any discussion of the veracity of either position is typically centered on the personal feelings of those involved in the argument rather than an objective utilization of definitions. When asked if the US tortured prisoners, Bush assured us "the United States does not torture," but we have admissions that waterboarding was used and the clear-enough definition of 'torture' under US Code to compare it to. This isn't a matter of asking the participants if they think they did anything wrong. It's not a matter of semantics. All that is required is a faithful adherence to the English language.

But beyond waterboarding, those interrogation techniques--though not talked about--which are much more widely-used still meet the definition. Consider several of the commonly-used methods: deprivation of sleep, deprivation of senses, exposure to extreme temperatures, and electric shock. To contend that these techniques fail to meet the definition spelled out in the US Code strains credibility and illustrates a wanton disregard for objectivity.

The definition clearly defines torture as "causing mental harm through procedures calculated to disrupt profoundly the senses or the personality." The Geneva Conventions explicitly prohibit "violence to life and person," "outrages upon personal dignity," and "conditions exposing [prisoners] to contagion or infection." All of the previously-listed techniques meet one or more of those definitions.

So George Bush is free to say that the "United States does not torture," but it is equally fair for others to bring up the actual definition of the US Code he has sworn to uphold in claiming he's lying. It's not a matter of opinion whether or not these acts are torture. There are legal definitions, and they are all met.

The administration, of course, does all this under the umbrella of homeland security. You've gotta break a few eggs to stop all the terrorists attacks. This first requires the belief that a government that missed a massive attack spanning two presidencies is suddenly competent enough to act upon what some schmuck says in conditions designed precisely so he'll say anything to get out of them. But, that aside, this again begs the question: When did the Executive Branch become responsible for interpreting and re-writing the law?

All good intentions aside, if the laws need to be changed, get them changed. Through legislation, not back-room semantic mangling by a sycophant flunkie. As much as it pains me, I mostly think Bush is a somewhat pitiful, hopeless idealist. I don't believe him to be inherently evil. But one thing is clear, and that is that the United States has flouted international treaties it has promised to uphold--and expects other countries to uphold when detaining our soldiers--and its own code.

Bush often says that history will be the true judge of his presidency. Sadly for him, I think that's true, because we haven't reached the end of the line yet. For all its egregious acts and slaps in the face to representative democracy, this administration has proven time and again that something more scandalous always lurks just around the corner.

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While You Were Out, March 19

The government makes its case for less oversight:

One of the more overarching themes to the Bush administration is its absolute opposition to any oversight, congressional or otherwise. Whether it's opposing the establishment of a commission to examine the wiretapping policy and activities, refusing to appear when subpoenaed, or just outright gutting other agencies, the administration is demonstrably opposed to anyone paying attention to what they're doing.

Yet, time and again they demonstrate with equal veracity that oversight is sorely needed, if not because of illegality then for the shear incompetence.

Enter this report from Monday, providing us with yet more proof that silly balance-of-power thing in the Constitution might have been a good idea after all.

The government's terror watchlist includes inaccurate and outdated information, increasing the risk that innocent people will be misidentified as terrorists while terrorists are overlooked, a government audit reported Monday.

[...]

Although agents describe the watchlist as invaluable in helping them detect terrorists, high-profile blunders have underscored its flaws, such as when agents repeatedly blocked Sen. Ted Kennedy, D-Mass., from boarding a plane because his name was similar to that of a terror suspect.

[...]

[JDIG Glenn] Fine's audit is his second in less than a week to find fault with the FBI's handling of national security matters.

On Thursday, the inspector general found that the FBI had abused privacy laws when seeking records without court approval. However, Fine noted that the FBI had improved its processing of so-called "national security letters" after his office had issued an earlier critical report.

I'll assume that detaining Senator Kennedy was just a coincidence. But, really, forgetting the illegal activities of the national security process, these agencies have proven time and again that their incompetence, here stretching over the course of six years, presents more of an imminent threat.


Those meddling Clintons are at it again:

Continuing on her theme of "caucuses don't really count," Hillary Clinton has asked the Texas Democratic Party to verify every signature (that's 1 million of them) of the people who voted in the Texas caucuses. One wonders why she didn't request the same of the primary voters. The Party declined her request.


Ron Paul hasn't left yet:

From the Saint Louis Post-Dispatch:

On Saturday, [Missouri Rep. Party Chmn. Jon] Bennett learned why [an abnormal influx of inquiries about the caucuses were coming in.] Dozens of avid supporters of Ron Paul, a Texas congressman who is running a renegade quest for the presidential nomination, staged a political guerrilla attack. At that caucus at St. Peters City Hall — as well as others across the state — party regulars like Bennett were overwhelmed.

Caucuses in Missouri, held only in presidential election years, are typically low-key affairs attended mainly by party diehards. But this year, the pro-Paul activists commandeered gatherings in the city of St. Louis, St. Louis County, Kansas City and Springfield. Paul supporters also controlled caucuses in at least a half dozen rural counties.

The result: Paul's supporters predict they have snagged roughly a third of the 2,137 state Republican delegates. Those delegates will determine the state GOP platform this spring and help select the presidential delegates to the national Republican presidential convention in Minneapolis in September.

This, of course, makes the people who didn't show up angry, and the Party will be examining the names to make sure there weren't any of those dirty Libertarian interlopers. Assuming there were (which wouldn't be a surprise), the take-over still illustrates that those who don't participate still feel they are owed inaction by everyone else.

They fling 'activist' around like it's a dirty word, but apathy is the enemy of democracy. (No, I don't support Ron Paul, but I refuse to degrade people who participate or favor those who don't.)

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The Missing Link

The lead up to the invasion of Iraq in March of 2003 was rife with contradictions, misdirection, pandering to innate fears and outright misrepresentation of facts. As the Bush administration reluctantly tried to give an air diplomacy and present a forthright case for war, it ran through an almost-slapstick comedy of errors and erratic ricochets between various attempted justifications for invasion. Five years on, it has become increasingly clear that the justifications were largely a publicity stunt undertaken begrudgingly by an administration that fells it answers to no one and continues to trade in aggregate deception and rhetorical misdirection.

Among the various reasons for invasion given by the Bush administration were the existence of WMDs in Iraq, the intolerable oppression of the Iraqi people, numerous violations of UN resolutions by Saddam (of course, in this instance the UN was seen as legitimate by Bush), and a baseless allegation of a formal connection between al Qaeda and Saddam Hussein's regime. The failure to find any WMDs has been widely documented. That the United States is close allies with plenty of oppressive Islamic regimes (read: Saudi Arabia) became a cumbersome reality when testing the waters with that line of reasoning. The public disdain for the UN by the administration made its sudden reliance upon it seem more than a little disingenuous.

What's left but to conflagrate a fear in the American people that the man responsible for the death of thousands on September 11, 2001 was still in power and capable of even more. Bereft of evidence for its case, the administration relied on empty rhetoric and deceptive end-runs around the intelligence community.

September 2001: The Pentagon creates the Office of Special Plans "in order to find evidence of what [Deputy Secretary of Defense Paul] Wolfowitz and his boss, Defense Secretary Donald Rumsfeld, believed to be true-that Saddam Hussein had close ties to Al Qaeda, and that Iraq had an enormous arsenal of chemical, biological, and possibly even nuclear weapons that threatened the region and, potentially, the United States� The rising influence of the Office of Special Plans was accompanied by a decline in the influence of the C.I.A. and the D.I.A. bringing about a crucial change of direction in the American intelligence community." The office, hand-picked by the Administration, specifically "cherry-picked intelligence that supported its pre-existing position and ignoring all the rest" while officials deliberately "bypassed the government's customary procedures for vetting intelligence."

As other justifications were knocked aside by overt reality, the administration gravitated to others, such as the installation of democracy, but still held on to its insistence that there was a link between Saddam and Osama bin Laden. Really, they had to keep up the charade as they still do in order to lump Operation Iraqi Freedom in with the larger War on Terror. This singular claim is all the administration has in its arsenal to claim that the Iraq war was part of, and not a distraction from, the war against the Taliban and al Qaeda in Afghanistan.

Enter the recently-released (well, sort of) report on the accounting of 600,000 Iraqi documents captured from the deposed regime which concludes that there was in fact no formal relationship between Iraq and al Qaeda and certainly no active involvement by Saddam's regime in the attack on the World Trade center. It is important to note, because it will be seized upon by the right, that the report absolutely does not suggest that Saddam did not have links to terror. Much of the Iraq Perspective Project's report detailed the various and widespread terrorist groups supported by Saddam both with money and training. It also illustrates the overarching structure surrounding the program. To take away from this report that Saddam and terror were strangers would take an enormous suspension of literacy on the part of the reader.

What the report does say is that Saddam's association with terror was regional in nature and concentrated around achieving his own political aims. Moreover, the report states that the most frequent target of his terrorism were Iraqis, both at home and abroad. Cooperation with groups tied to bin Laden (who had several front groups other than al Qaeda) was undertaken by Iraq insofar as "that organization's near-term goals supported Saddam's long-term vision." So, essentially, Saddam's not going to shy away from supporting an al Qaeda front group if they want to bomb American or Israeli targets in the region or disrupt oil exports, but this support was almost entirely monetary in nature and somewhat tacit. It was not in any way long-term collaboration on a project the size and scale of the WTC attack.

Speaking of a long-term relationship between bin Laden and Hussein, the IPP states:

Both wanted to create a single powerful state that would take its place as a global superpower.

But the similarities ended there: bin Laden wanted-and still wants to-restore the Islamic caliphate while Saddam, despite his later Islamic rhetoric, dreamed more narrowly of being the secular ruler of a united Arab nation. These competing visions made any significant long-term compromise between them highly unlikely. After all, to the fundamentalist leadership of al Qaeda, Saddam represented the worst kind of "apostate" regime-a secular police state well practiced in suppressing internal challenges.

Considerable operational overlap was inevitable when monitoring, contacting, financing, and training the regional groups involved in terrorism. Saddam provided training and motivation to revolutionary pan-Arab nationalists in the region...That these movements (pan-Arab and pan-Islamic) had many similarities and strategic parallels does not mean
they saw themselves in that light.

Empasis mine

If it had characterized the relationship between al Qaeda and Iraq as a fleeting one borne of a common enemy in the United States, the Bush administration would be correct in its assertions and this report wouldn't be getting the press it's receiving. But that isn't the case they've made.

In order to rope Iraq under the War on Terror umbrella, the administration has baldly claimed that Hussein played a significant role in the planning and execution of the 2001 attack, and that is a position which is impossible to undertake given the documents reviewed for the IPP's publication. It's important to realize that the basis for the writings are primary sources from Saddam's own regime and not intelligence reliant upon un-vetted or biased sources.

One would expect that the release of this information will not be accompanied by a lowering in the tone of the rhetoric coming out of the White House. Quite to the contrary, it has already elicited a defensive response customary to the administration marked by refusing to release the report online and launching a PR campaign in the hopes of downplaying or outright mis-characterizing its conclusions. But there is no mistaking the obvious. The Bush administration's case for war in Iraq was based entirely on an endless stream of empty rhetoric backed by a brazen mis-representation of facts and outright lies. That they still cling to dis-proven tenets of a false pretext should surprise no one but enrage all.

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Democrats Begin Bipedal Movement

After a closed session on Thursday, the House passed the Democratic proposal for amendments to FISA on Friday, the specifics of which were in Thursday's post. It appears that the Dems have realized the feeble objections of the Republicans were not unassailable and that they could even ignore or defy them at times.

In passing the bill, which will still have a tough time passing the Senate, the Democrats kept retroactive immunity out and put confidentiality protection for the telecoms in. However, this action only stood to prove that when Bush and his minions say 'compromise,' they mean 'do as we say,' as this seemingly reasonable compromise was met with predictable objections from the right.

In presenting these objections, proponents of blanket immunity only illustrate with ever-growing clarity that their arguments are as baseless as they are erratic. Tony Fratto with the current White House version:

Their bill would make it easier for class-action trial lawyers to sue companies whose only offense is that they are alleged to have assisted in efforts to protect the country after the attacks of September 11.

Sorry, Tony, better luck next time. They're not charged with being helpful, they're charged with doing so illegally. But congrats on the ability to keep this charade of illogical tripe going with a straight face. And about the use of 'alleged.' If you want to cast doubt that the companies actually aided you, you might want to shy away from throwing everything you have into trying to protect them from prosecution. When I was younger, I used to try this by flinging myself on top of my mattress when my mother went to flip it. And it certainly wasn't because I had any magazines under there.

The 'they-we're-being-patriotic' reasoning is only the latest in the White House's series of arguments. This shifting is reminiscent of the lead-up to the Iraq War (Saddam's a bad man. No wait, he's bad and he has WMDs. Non-starter? What if he was responsible for the WTC? Umm...democracy. That's the ticket!).

Once upon a time, it was 'well, if immunity's off the table, the phone companies won't cooperate.' One has to assume that this was dropped as the main talking point once a pre-law student informed the administration that a company can't refuse to comply with a legally-acquired warrant. This is a point that is somehow missed in most discussions of immunity; a tragic failure to include a little common sense.

Then, it was 'well, even if it was illegal, the Justice Department said they weren't breaking the law.' Unfortunately for Bush, the Constitution and laws don't change based on JD advisement. But the Democrats even threw him a bone on this one, allowing the companies to bring those advisements to trial in their defense. So that talking point's out, too, I guess. What do you do when the opposition includes a provision that makes your rationale a moot point?

Bush and the Republicans have tried their best to stir up fear on the intelligence bill, but the more they speak, the more it becomes clear their arguments lack validity or substance. Every legal argument thrown out is shot down post haste, so they gravitate to the emotional. When that, too, fails to elicit the response they desire, they call secret sessions to stall and pretend to have some secret information we're all missing. And that's only after they decide they even want to stay in the room and talk about it.

Although this bill will die either in the Senate or the President's desk, it does succeed in showing just how ineffective the Republican fear machine has become, and that's a win for everybody.

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Invertebrate Evolution

In a shocking turn of events, House Democrats have indicated that they do indeed have a semblance of a backbone. Granted, when all is said and done, it is unlikely to pass in its current form, but the Dems plan to unveil their version of amendments to the FISA statute on Thursday.

The summary:

FISA Amendments Act

Bill Summary

March 11, 2008

The revised House legislation to amend FISA grants new authorities for conducting electronic surveillance against foreign targets while preserving the requirement that the government obtain an individualized FISA court order, based on probable cause, when targeting Americans at home or abroad. The House bill also strongly enhances oversight of the Administration’s surveillance activities. Finally, the House bill does not provide retroactive immunity for telecom companies but allows the courts to determine whether lawsuits should proceed.

Title 1: Surveillance Authorities

· Provides for surveillance of terrorist and other targets overseas who may be communicating with Americans.

· Requires the FISA court to approve targeting and minimization procedures – to ensure that Americans are not targeted and that their inadvertently intercepted communications are not disseminated. These procedures must be approved prior to surveillance beginning – except in an emergency, in which case the government may begin surveillance immediately, and the procedures must be approved by the court within 30 days. (This may be extended if the court determines it needs more time to decide the matter).

· Provides prospective liability protection for telecommunications companies that provide lawful assistance to the government.

· Requires a court order based on probable cause to conduct surveillance targeted at Americans, whether inside the United States or abroad.

· Requires an Inspector General report on the President’s warrantless surveillance program.

· Prohibits “reverse targeting” of Americans.

· Explicitly establishes FISA Exclusivity – that FISA is the exclusive way to conduct foreign intelligence surveillance inside the U.S. Any other means requires an express statutory authorization.

· Sunsets these authorities on December 31, 2009 (same as the PATRIOT Act sunset).

Title 2: Litigation Procedures for Telecommunication Company Liability

· Does not confer retroactive immunity on telecom companies alleged to have assisted in the President’s warrantless surveillance program.

· Provides telecom companies a way to present their defenses in secure proceedings in district court without the Administration using “state secrets” to block those defenses.

Title 3: National Commission on Warrantless Surveillance

· Establishes a bipartisan, National Commission – with subpoena power – to investigate and report to the American people on the Administration’s warrantless surveillance activities, and to recommend procedures and protections for the future.

Most glaringly, they have not included a clause granting retroactive immunity to the telecommunications companies, a clause demanded by the Bush administration and included in the Senate version of the bill passed in February. As I stated in a previous post, immunity is the most contentious issue surrounding the amendments to FISA. I've already laid out my objections to that particular argument so I won't redress them here.

Instead of immunity, the proposal would allow the defendants in civil trials to present classified evidence in their defense to the presiding judge. This would be done in secret and the documents would not be publicly available. Inclusion of the clause comes from the administration's claim of "state secrets" which would have prohibited the phone companies from presenting these confidential documents in court, which would go a long way in establishing that they acted in good faith and are therefore not liable.

As it stands, good faith seems to be what defenders of immunity have gravitated toward, saying that regardless of the legality of their actions, the telecoms were acting in good faith and had assurances from the Justice Department that their cooperation in the Terrorist Surveillance Program was legal and legitimate. The proposal would grant them the opportunity to prove that the Justice Department had steered them as suggested and perhaps limit their vulnerability in civil trials.

Third, the proposed legislation would establish an oversight committee and require and Inspector General to report on the program. Seems good in theory, though we pretty much have evidentiary proof that the Bush administration will obfuscate and obstruct to the full extent of its imagination, so that clause is likely a wash.

In spite of the unlikelihood the legislation is passed as is, the Democrats are at least illustrating a little grit on a significant issue.



A couple of additional thoughts per previous discussion of the misinformation regarding immunity and FISA:

• Julian Sanchez presents a pretty thorough debasing of the main pro-immunity talking points here.



• It should be noted that during the period from 1979 through 2006, the FISA court has rejected all of 5 applications for a warrant while approving 22990. The rate of rejection: .022 percent. That's 1/50 of a percent. It seems that the court itself, if the process is seen through properly, is not, and never has been, a hinderance on surveillance authorities.



• For all their posturing, the Republicans aren't even taking part in this debate short of empty proselytizing and instilling fear in the public. This refusal to take part in the proceedings begs the question: If allowing the PAA to lapse was a tragedy, wouldn't working toward a substitute be a priority? In the US Congress, it's a bit hard to expect the other party to simply accept the other chamber's bill without discussion, and trying to stifle any ounce of debate is reckless.

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Sunset (Il)logic

On Friday, AG Michael Mukasey and DNI Mike McConnell sent a letter to the House Intelligence Committee assuring them that the House's failure to extend the Protect America Act had already led directly to lost intelligence. What's pertinent here is the reasoning. Namely, that the phone companies who've cooperated with the government, at times illegally, are reluctant to continue doing so without assurances that they bear no financial liability.

While the fear mongers on the right would have you believe that the moment the PAA expired, every surveillance tool in the government arsenal went out the window and left the country sprawled out on its back waiting for an imminent attack, the letter paints a different story. In fact, Mukasey and McConnell hardly broach a subject other than the telecoms' cooperation, saying that "although most partners intend to cooperate for the time being...they may well cease to cooperate if the uncertainty persists."

Uncertainty, of course, refers to the inclusion of retroactive immunity. Bear in mind that phone companies working on a court order filed through the very broad processes laid out by the amendments to FISA in August of 2007 would bear no liability. If you're working within the rule of law, there aren't consequences. What's at stake, rather, is the telecoms' liability for past actions, when laws were broken. So the suggestion here is that cooperation within the law is impossible given that someone may be held accountable for past law breaking.

In some places, Mukasey and McConnell seem to be on the cusp of grasping the logical inconsistencies, yet so far away. For instance, they say "expiration would create uncertainty concerning...the continuing validity of liability protection for those who assist us according to the procedures of the Protect America Act." Here, again, they put forward an obviously disingenuous argument. No company is liable when acting within the law. That's why the law's there. What the issue is here is what happens to companies that acted outside the law in the past, and that has precisely zero bearing on what happens legally in the future.

This is par for the course, after all. The administration makes its argument on one set of circumstances, while its opponents are more worried about reality. Such as dragnet surveillance. What's infuriating is the framing of the debate in this manner. No one really thinks the government shouldn't be able to gather intelligence from foreign agents. Some just think it should be done within the rule of law and not done by funneling domestic phone and internet traffic through secret rooms in AT&T's offices.

Indeed, the House had offered an intelligence bill which would have extended the PAA for three weeks to allow for more deliberation, an act which was shot down by the Republicans. The House Democrats are willing to grant the President everything in the Senate bill sans retroactive immunity. Clearly, a bill which would not prevent the government from collecting foreign surveillance. So, who's the real villain here? Congress for offering a bill that would extend all necessary provisions for continued surveillance? Or the administration who refuses to accept it - thereby causing a dangerous loss of intelligence, if you believe the AG - because someone might have to answer for breaking the law in the past?

To be clear, foreign targets have no recourse in the American court system. The telecommunications industry has nothing to fear from them. It's domestic traffic that's the issue here, and it's egregious for this administration to continue suggesting that failure to include amnesty for AT&T in this bill puts foreign surveillance at risk.

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