Listen here: http://www.breakthruradio.com/index.php?show=6753
Citizen Radio discusses the human disaster known as Peggy Noonan, and her comments about not investigating Bush administration war crimes because life needs to remain “mysterious.” Wow.
Jamie talks about getting screamed at by a New Yorker at one of his Australia shows, and why Americans think they’re exceptional.
Jane Harman got busted trying to do AIPAC spies a solid, and she got caught by the very same wiretapping program she championed. Irony with a capital “I.”
Shepard Smith went crazy on FOX again, and Citizen Radio thinks that’s super!
WASHINGTON – The Obama administration has lost its argument that a potential threat to national security is a good enough reason to stop a lawsuit challenging the government’s warrantless wiretapping program.
A federal appeals court in San Francisco on Friday rejected the Justice Department’s request for an emergency stay. The Obama administration, like the Bush administration before it, cited the so-called state secrets privilege as its defense. The government claimed national security would be compromised if a lawsuit brought by the U.S. chapter of an Islamic charity was allowed to proceed.
The case was brought by the Al-Haramain Islamic Foundation, a defunct charity with a chapter in Oregon.
The decision by the three-judge appeals panel is a setback for the new Obama administration as it adopts some of the same positions on national security and secrecy as the Bush administration.
Earlier this month, Attorney General Eric Holder ordered a review of all state secrets claims that have been used to protect Bush administration anti-terrorism programs from lawsuits.
Yet even as that review continues, the administration has invoked the privilege in several different cases, including Al-Haramain.
The case began when the Bush administration accidentally turned over documents to Al-Haramain attorneys. Lawyers for the defunct charity said the papers showed illegal wiretapping by the National Security Agency.
The documents were returned to the government, which quickly locked them away, claiming they were state secrets that could threaten national security if released.
Lawyers for Al-Haramain argued that they needed the documents to prove the wiretapping.
The U.S. Treasury Department in 2004 designated the charity as an organization that supports terrorism before the Saudi government closed it. The Bush administration redesignated it in 2008, citing attempts to keep it operating.
The 9th Circuit eventually agreed that the disputed documents were protected as state secrets. But the court ruled that the Oregon chapter of Al-Haramain could try to find another way to show it had standing to sue the government over domestic wiretapping.
A number of organizations, including the American Civil Liberties Union, tried to sue the government over warrantless wiretapping but were denied standing because they could not show they were targeted.
(updated below - Update II - Update III)
Dick Cheney’s interview yesterday with Fox’s Chris Wallace was filled with significant claims, but certainly among the most significant was his detailed narration of how the administration, and Cheney personally, told numerous Democratic Congressional leaders — repeatedly and in detail — about the NSA warrantless eavesdropping program. And, according to Cheney, every one of those Democrats — every last one — not only urged its continuation, but insisted that it be kept secret:
WALLACE: Let’s drill down into some of the specific measures that you pushed — first of all, the warrantless surveillance on a massive scale, without telling the appropriate court, without seeking legislation from Congress.
Why not, in the aftermath of 9/11 and the spirit of national unity, get approval, support, bring in the other branches of government?
CHENEY: Well, let me tell you a story about the terror surveillance program. We did brief the Congress. And we brought in…
WALLACE: Well, you briefed a few members.
CHENEY: We brought in the chairman and the ranking member, House and Senate, and briefed them a number of times up until — this was — be from late ’01 up until ’04 when there was additional controversy concerning the program.
At that point, we brought in what I describe as the big nine — not only the intel people but also the speaker, the majority and minority leaders of the House and Senate, and brought them into the situation room in the basement of the White House.
I presided over the meeting. We briefed them on the program, and what we’d achieved, and how it worked, and asked them, “Should we continue the program?” They were unanimous, Republican and Democrat alike. All agreed — absolutely essential to continue the program.
I then said, “Do we need to come to the Congress and get additional legislative authorization to continue what we’re doing?” They said, “Absolutely not. Don’t do it, because it will reveal to the enemy how it is we’re reading their mail.”
That happened. We did consult. We did keep them involved. We ultimately ended up having to go to the Congress after the New York Times decided they were going to make the judge to review all of — or make all of this available, obviously, when they reacted to a specific leak.
But it was a program that we briefed on repeatedly. We did these briefings in my office. I presided over them. We went to the key people in the House and Senate intel committees and ultimately the entirely leadership and sought their advice and counsel, and they agreed we should not come back to the Congress.
Cheney’s reference to the “additional controversy concerning the program” that arose after 2004 and that led to additional Congressional briefings is ambiguous and creates a somewhat unclear time line: is he referring to late 2004, when the White House learned that The New York Times knew about the NSA program and was considering writing about it (only to then obey the President’s orders to keep it a secret), or is he referring to the time when,more than a full year later, in December 2005, the NYT finally got around to writing about it, once Bush was safely re-elected?
Either way, Cheney’s general claim is as clear as it is incriminating. According to him, key Congressional Democrats were told about the illegal NSA spying program in detail, and they not only actively approved of it, but far beyond that, they insisted that no Congressional authorization should even be sought, based on what was always the patently inane claim that to discuss the fact that the administration was eavesdropping on our conversations without warrants (rather than with warrants, as the law required) would be to reveal our secrets — “our playbook” — to Al Qaeda.
It is certainly true that Dick Cheney is not exactly the most scrupulously honest public servant around. In fact, he’s almost certainly the opposite. Still, what he said yesterday was merely an expanded and more detailed version of what has previously been publicly reported and, to some degree, confirmed about the knowledge and support of Democratic leaders for the NSA program. Cheney’s claims encompasses the following key Democrats:
- Nancy Pelosi (Ranking Member, House Intelligence Committee, House Minority Leader);
- Jane Harman (Ranking Member, House Intelligence Committee);
- Jay Rockefeller (Ranking Member, Senate Intelligence Committee);
- Harry Reid Tom Daschle (Senate Minority Leader).
Unsurprisingly, Pelosi, Harman and Rockefeller all voted last July to legalize warrantless eavesdropping and to immunize telecoms from liability, thereby ensuring an end to the ongoing investigations into these programs. And though he ultimately cast a meaningless vote against final passage, it was Reid’s decisions as Majority Leader which played an instrumental role in ensuring passage of that bill.
One would think that these Democratic leaders would, on their own, want to respond to Cheney’s claims about them and deny the truth of those claims. After all, Cheney’s statement is nothing less than an accusation that they not only enthusiastically approved, but actively insisted upon the continuation and ongoing secrecy, of a blatantly illegal domestic spying program (one that several of them would, once it was made public, pretend to protest). As Armando says, “The Democratic members who participated in this meeting have two choices in my mind – refute Cheney’s statements or admit their complicity in the illegal activity perpetrated by the Bush Administration.”
I’m going to spend the day calling these members and trying to get some response to Cheney’s claim. If I’m unable to obtain any responses, I’ll post their numbers and encourage everyone to make similar calls. As I wrote on Saturday – and documented before: “As a practical reality, the largest barrier to any route to prosecution — including this one — is that the Congressional Democratic leadership was complicit, to varying degrees, in the illegal programs.” That’s true not only of the NSA program, but also the Bush/Cheney torture program.
One last point: there is much consternation over Dick Cheney’s “Nixon/Frost moment” yesterday, where he expressly endorsed the idea that, as a “general proposition,” a “wartime” President can do anything he wants — even if it violates duly enacted statutes — as long as it’s justified in the name of national security. In one sense, Cheney was being so explicit yesterday about his belief in Bush’s lawbreaking powers in part because he’s taking pride in being so defiant on his way out the door — daring a meek and impotent political class to do anything about his lawlessness — and also because Chris Wallace conducted one of the best interviews (and, revealingly, one of the only interviews) about the Bush/Cheney view of executive power.
But that this was the Bush administration’s central operating principle is something that — as was true for Cheney’s involvement in America’s torture regime — was long known. As I wrote all the way back in December, 2005, days after the NSA scandal was first revealed:
These are not academic questions. Quite the contrary, it is hard to imagine questions more pressing. We are at a moment in time when not just fringe ideologues, but core, mainstream supporters of the President — not to mention senior officials in the Administration itself – are openly embracing the theory that the President can use the power and military force of the United States to do whatever he wants, including to and against U.S. citizens, as long as he claims that it is connected to America’s “war” against terrorists – a war which is undeclared, ever-expanding, and without any visible or definable end.
While Bush advocates have long been toying with this theory in the shadows, the disclosure that Bush ordered warrantless eavesdropping on American citizens in undeniable violation of a Congressional statute has finally forced them to articulate their lawless power theories out in the open. Bush got caught red-handed violating the law, and once it became apparent that no argument could be made that he complied with the law, the only way to defend him was to come right out and say that he has the right to break the law. So that debate — over the claimed limitlessness of George Bush’s power — can’t be put off any longer.
By itself, the long-disclosed September 25, 2001 Yoo Memorandum left no doubt that our Government had formally and explicitly adopted an ideology of lawlessness. As a country, we just chose to ignore all of that, chose to do nothing about it. The absues and extremism of the last eight years began as a Bush administration initiative, but it culminated as something for which both political parties, our leading political and media institutions, and our citizenry generally bear collective responsibility.
* * * * *
On a somewhat related note, this creepy little post inserted onto Matt Yglesias’ Center for American Progress blog by Jennifer Palmieri, the CEO of CAP’s “Action Fund”, is a vivid exhibit illustrating how Washington works, for reasons which Matt Stoller, Markos Moulitsas, and Brendan Nyhan all describe. Matt very well may not consider it to constitute interference with his editorial autonomy, but it nonetheless illustrates the potential constraints that can come from writing for an organization like that.
When I first joined Salon, the commitment they made, which for me was non-negotiatiable, was absolute editorial independence. Though that’s an unusual commitment for a magazine to make, they did make it, and they never once — in almost two years of my being here — even came close to violating it. Even as I’ve waged quite acrimonious mini-wars with friends and former colleagues of top editors and officers here, and even as I’ve aggressively advocated views that were, at times, the opposite of the ones top editors here were advocating, there’s never been a hint of interference or even pressure, and I couldn’t even fathom their doing anything like sticking a note onto my blog of the type Palmieri just inserted onto Matt’s blog.
Editorial independence is quite rare and quite valuable. It’s still one of the key distinguishing features between blogs/alternative media outlets and establishment media. As Atrios suggests: “contemplate the issue of editorial independence, and the various revenue models which make it possible or not.” It’s worth supporting the bloggers who practice it and the media venues that allow and encourage it.
UPDATE: As I said, Cheney’s time line is unclear, and it’s possible, when he references an “additional controversy,” he’s referring to the DOJ’s objections to the NSA program in March, 2004 — not anything having to do with the New York Times. That would mean the detailed, expanded briefings he’s describing would have included then-Minority Leader Tom Daschle, but not Harry Reid (who only became Minority Leader in 2005, once Daschle lost). If Cheney is describing 2005 briefings, they would have included Reid. That’s all the more reason why responses from leading Democrats here is required.
That key Democrats were briefed on the NSA program is anything but new. USA Today reported in 2006 that Democratic leaders including Pelosi were repeatedly briefed on the program. There is some marginal dispute about what they were and weren’t told, but no dispute about the existence of the briefings and the complete lack of any real efforts by Democrats to stop it or even object.
UPDATE II: Via email, several very knowledgeable bloggers — including Marcy Wheeler and Christy Hardin Smith — are arguing, persuasively, that Cheney did not really disclose any specific new facts yesterday about Democratic complicity, that while he may have emphasized more clearly than ever before the approval he claims Democrats gave, all of the facts, in one venue or another, have been previously disclosed. Cheney yesterday was almost certainly talking about the March, 2004 White House briefing (that would have included Pelosi, Harman and Rockefeller — but not Reid), which has been reported.
Re-examining what Cheney said, they’re probably right. But none of that, as Spencer Ackerman points out, undermines at all the need for Congressional Democrats finally to give a full accounting of what they knew, what they were told, and what they said about these programs. Particularly given how publicly Cheney is taunting them for having approved of the NSA program, they should respond specifically to Cheney’s claims — confirm the parts that are true and deny the parts, if any, that aren’t.
The reason the law requires that Congressional leaders be briefed on intelligence programs is not because it’s nice in the abstract for someone to know. It’s because Congressional leaders have the right and the obligation to take action to stop illegal intelligence programs — something all briefed Democrats clearly failed to do. Cheney, on his way out the door, is answering questions about what he knew and approved. It’s way past time for Pelosi, Harman and Rockefeller, at the very least, to do the same.
UPDATE III: Last week, I was interviewed by Fox News’ Jim Angle regarding the John Brennan controversy. For those interested: his story will air tonight on Brit Hume’s Fox News broadcast, at 6:00 p.m. EST.
Thomas M. Tamm was entrusted with some of the government’s most important secrets. He had a Sensitive Compartmented Information security clearance, a level above Top Secret. Government agents had probed Tamm’s background, his friends and associates, and determined him trustworthy.
It’s easy to see why: he comes from a family of high-ranking FBI officials. During his childhood, he played under the desk of J. Edgar Hoover, and as an adult, he enjoyed a long and successful career as a prosecutor. Now gray-haired, 56 and fighting a paunch, Tamm prides himself on his personal rectitude. He has what his 23-year-old son, Terry, calls a “passion for justice.” For that reason, there was one secret he says he felt duty-bound to reveal.
In the spring of 2004, Tamm had just finished a yearlong stint at a Justice Department unit handling wiretaps of suspected terrorists and spies—a unit so sensitive that employees are required to put their hands through a biometric scanner to check their fingerprints upon entering. While there, Tamm stumbled upon the existence of a highly classified National Security Agency program that seemed to be eavesdropping on U.S. citizens. The unit had special rules that appeared to be hiding the NSA activities from a panel of federal judges who are required to approve such surveillance. When Tamm started asking questions, his supervisors told him to drop the subject. He says one volunteered that “the program” (as it was commonly called within the office) was “probably illegal.”
Tamm agonized over what to do. He tried to raise the issue with a former colleague working for the Senate Judiciary Committee. But the friend, wary of discussing what sounded like government secrets, shut down their conversation. For weeks, Tamm couldn’t sleep. The idea of lawlessness at the Justice Department angered him. Finally, one day during his lunch hour, Tamm ducked into a subway station near the U.S. District Courthouse on Pennsylvania Avenue. He headed for a pair of adjoining pay phones partially concealed by large, illuminated Metro maps. Tamm had been eyeing the phone booths on his way to work in the morning. Now, as he slipped through the parade of midday subway riders, his heart was pounding, his body trembling. Tamm felt like a spy. After looking around to make sure nobody was watching, he picked up a phone and called The New York Times.
That one call began a series of events that would engulf Washington—and upend Tamm’s life. Eighteen months after he first disclosed what he knew, the Times reported that President George W. Bush had secretly authorized the NSA to intercept phone calls and e-mails of individuals inside the United States without judicial warrants. The drama followed a quiet, separate rebellion within the highest ranks of the Justice Department concerning the same program. (James Comey, then the deputy attorney general, together with FBI head Robert Mueller and several other senior Justice officials, threatened to resign.) President Bush condemned the leak to the Times as a “shameful act.” Federal agents launched a criminal investigation to determine the identity of the culprit.
The story of Tamm’s phone call is an untold chapter in the history of the secret wars inside the Bush administration. The New York Times won a Pulitzer Prize for its story. The two reporters who worked on it each published books. Congress, after extensive debate, last summer passed a major new law to govern the way such surveillance is conducted. But Tamm—who was not the Times’s only source, but played the key role in tipping off the paper—has not fared so well. The FBI has pursued him relentlessly for the past two and a half years. Agents have raided his house, hauled away personal possessions and grilled his wife, a teenage daughter and a grown son. More recently, they’ve been questioning Tamm’s friends and associates about nearly every aspect of his life. Tamm has resisted pressure to plead to a felony for divulging classified information. But he is living under a pall, never sure if or when federal agents might arrest him.
Exhausted by the uncertainty clouding his life, Tamm now is telling his story publicly for the first time. “I thought this [secret program] was something the other branches of the government—and the public—ought to know about. So they could decide: do they want this massive spying program to be taking place?” Tamm told NEWSWEEK, in one of a series of recent interviews that he granted against the advice of his lawyers. “If somebody were to say, who am I to do that? I would say, ‘I had taken an oath to uphold the Constitution.’ It’s stunning that somebody higher up the chain of command didn’t speak up.”
Tamm concedes he was also motivated in part by his anger at other Bush-administration policies at the Justice Department, including its aggressive pursuit of death-penalty cases and the legal justifications for “enhanced” interrogation techniques that many believe are tantamount to torture. But, he insists, he divulged no “sources and methods” that might compromise national security when he spoke to the Times. He told reporters Eric Lichtblau and James Risen nothing about the operational details of the NSA program because he didn’t know them, he says. He had never been “read into,” or briefed, on the details of the program. All he knew was that a domestic surveillance program existed, and it “didn’t smell right.”