Wow, where to start. As some of you may know, the ACLU is launching the first challenge to the NSA's warrantless wiretapping program - the court date is tomorrow morning, 9:00 am, in Detroit. They've also been running a series of townhall meetings (
the webcast is now available) to explain the specifics of their case, who the plaintiffs are, and what can be expected. For tonight's townhall, they also brought out some heavy guns: John W. Dean, the former legal counsel to Richard Nixon, who knows firsthand what happens when the executive branch oversteps its bounds, and James Bamford, the only person to have written book-length studies of the NSA (starting in 1982).
What followed was a cornucopia of history, legal discussion, funny anecdotes, and most importantly, some money quotes that can help us frame our debates more accurately and more memorably. What's below may not be new, but it was brought together impressively and comprehensively.
I took about ten pages of notes, so I'll do my best to reconstruct some of the more important moments of the meeting. For those of you not interested in skimming through a pseudo-transcript, I've thoughtfully put the money quotes in
bold.
So tomorrow marks the beginning of ACLU v. NSA, the first attempt at legal accountability for the President's illegal surveillance program. Will this lawsuit even get off the ground? What do we as engaged citizens need to know about this program?
Here was the panel for the townhall meeting, which took place tonight in Ann Arbor, Michigan:
* Kary Moss, executive director of the ACLU Michigan
* John W. Dean, former legal counsel to Richard Nixon
* James Bamford, author/journalist who's covered NSA extensively, plaintiff in the case
* Ann Beeson, ACLU legal counsel who's leading tomorrow's case
* Nazih Hassan, representative from the Council on American-Islamic relations, plaintiff in the case
Note: this is not a word-for-word accurate transcript. I can only write so fast.
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First up, James Bamford.
Some background: Bamford started writing about NSA in 1982, before most people (including those in the government) even knew it existed. He is remarkably even-handed about the organization itself, having both fought against them and defended them in separate cases. He gave a quick history of the NSA, some of the highlights of which I'll outline here:
- The NSA is the largest intelligence agency in the world. Its headquarters are an entire city between Baltimore and D.C., including over 50 buildings, one of which is the 2nd or 3rd largest of all government buildings.
- It all began with the "Black Chamber," a surveillance group started around WWI. After war censorship ended and the government no longer had access to warrantless surveillance of telegrams, the Black Chamber secretly convinced telecommunications companies to hand over that information willingly. They operated out of a townhouse in Manhattan until they were shut down by the Secretary of State in 1929.
- The organization was reborn during WWII, but faced the same problem once the war ended of no longer having access to communications. Again, they convinced telecommunications companies to hand over this information, which now included telephone transcripts. Duplicate tapes of everything were shipped via train (a plane was too dangerous, in case it crashed and the tapes were discovered) and run through an old computer system (a Harvester), names were collected, including everyone from Jane Fonda to Benjamin Spock. Data mining.
- Even the Presidents didn't know the organization was doing all this (it was directly answerable only to the Secretary of Defense). Nixon signed an executive order to increase their jurisdiction to what they were, in fact, already doing. The strongest opponent to Nixon's order was - surprise - J. Edgar Hoover, who didn't want to fight a turf war. Nixon rescinded the order after only 2 weeks, but the NSA just went on doing what it had already been doing.
- All that changed in 1975, when the Church committee finally looked into the surveillance abuses and created FISA as a judiciary check on the organization. FISA has handled 19,000 requests since its creation, with only 5 rejected.
Keep the following in mind, even though it's already been repeated ad nauseum:
- FISA allows retroactive warrants up to 3 days later.
- Even if FISA rejects the warrant (again, only 5/19,000), the administration can then appeal to a FISA court of review, which can also grant the warrant. It's happened only once.
- Even if the FISA court of review rejects the appeal, the administration can force an immediate hearing by the Supreme Court.
Bamford ended his presentation with a vehement reiteration that the Right's attempts to paint us as somehow opposing terrorist surveillance is total nonsense.
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Next up, Ann Beeson - associate legal director of the ACLU, also director of civil liberties issues. She filed this lawsuit in January, and also filed a suit against Section 215 of the Patriot Act (the Libraries provision - more on this later)
Beeson talked about the broader picture - the increasing trend of executive power abuse. Bush has taken the broadest view of executive power of any president in our history, including not only warrantless eavesdropping, but also justifying torture, illegal kidnapping and rendition, detaining and eventual deportation, and all without any oversight whatsoever.
This is NOT an abstract constitutional debate - real people are being affected. Among the plaintiffs in this case:
- journalists, including Christopher Hitchens (!), who say that they can no longer write about the war because their sources have all dried up;
- lawyers, who cannot communicate with witnesses because of risks of wiretapped communications;
- academics, including Prof. Larry Diamond, who actually worked with the President in order to promote democracy in the Middle East
The ACLU is taking, among other things, this strategy: The administration's defenses of this program have been total bullshit, because of two precedents: 1) the undeniable fact that the framers wrote the 4th Amendment as a direct result of King George's unchecked searches of colonists' homes, and 2) the creation of FISA was specifically targeted at exactly the kind of behavior the NSA is currently engaged in, making ignoring FISA a criminal action.
Anecdote: How bad can things be? Four librarians in Connecticut stood up the government's attempts to take library records without a court warrant. By executive order, they were slapped with a gag rule for months, prohibiting them from releasing their names publicly (otherwise they presented, no kidding, a "threat to national security").
That is what we're up against.
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Next, Nazih Hassan, a plaintiff in tomorrow's case.
Hassan's speech was mostly a personal, anecdotal account of how this administration has affected real people. I cannot do justice to his storytelling, so I'll only outline one or two points that Hassan brought out about the dangerous path our country is taking.
- This administration has destroyed all hope of communication with the Muslim world, which has lost any desire to cooperate and any trust of America.
- Some 80% of Islamic organizations in this country have been shut down by executive order. No trial. (I don't have a link to these statistics - these were the numbers he gave in his presentation)
- The administration's response to mistreating its own people: ad campaigns. Raise the terror alert. Hold a press conference.
- Having lived through a dictatorship in Lebanon, he noted that the rhetoric is frighteningly the same: we have to give up certain rights for security. These people are really dangerous.
- This administration's coup de grace was focusing its abuses on a small segment of the population - as long as the majority doesn't feel its effects, they will never rise up against it.
There will always be dangers. There will always be bogeymen.
The tipping point from democracy to dictatorship can happen very fast, and nothing aids it more effectively than secrecy. As the 6th Circuit Court judge who defeated the Administration's attempts to force journalists and public out of deportation hearings said, "Democracies die behind closed doors."
I will sign on to every attempt to challenge this. I don't want to go back to a dictatorship. I've been there, done that.
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Finally, John Dean, legal consul to Richard Nixon.
Most of Dean's speech was a retelling of the Nixon administration's sudden turn from (what he considered) a run-of-the-mill Republican administration to a lawbreaking power grab. This is key, he suggests, because many of Bush's arguments are going to look exactly the same. Expect the administration's defense against the ACLU suit to try two nasty tactics:
1. Try to get the case dismissed on "standing" (that is, the plaintiffs don't have sufficient evidence that they've been affected by the program). This is unlikely to succeed in this case, because the plaintiff list is broad,
2. Try to get the case dismissed on "state secrets", the Bush trump card. Argue that the information here somehow endangers national security (more on this below)
But this "state secrets" argument is stranger than it sounds. Dean gave a brief outline of what led to the Nixon administration's use of that claim, and why it was such an odd route for them to go:
- First, Dean believes that the mentality that led to Watergate was set in motion when Henry Kissinger challenged Nixon over the New York Times' announcement that they were going to publish leaked Pentagon documents - the now infamous Pentagon Papers. According to Dean, none of the appeals to politics worked; it was only when Kissinger impugned Nixon's manhood ("If you don't deal with this, you'll be considered a weakling") that the administration became what it became.
- How extreme were they? A member of Nixon's administration nearly ordered the firebombing of the Brookings Institute, where the papers were being held.
- It was only when Nixon was unable to get the Supreme Court to block the publication of those papers that nonsense like "national secrets" was set in motion. But here's the rub: even the administration's lawyers didn't know what the papers contained, but had to argue that they would threaten national security. Expect the same from the current legal arguments: a blind defense of a program whose specifics its defenders don't understand.
We cannot count on Congress anymore. They have become aiders and abettors, not checkers and balancers.
And here's the key: this should not be a partisan debate. LBJ was constantly stymied by the fact that a Democratic House and a Democratic Senate exercised their oversight abilities on him. The Republicans have no excuse.
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A few questions from the audience, and their responses (I'm not including all - this is already long enough). Given how quickly this all went by, my transcript is a lot rougher here, so I apologize if all the speakers sound ridiculously staccato:
Q: What can we do to regain the rights we may have lost, given that protesting puts us on the same database?
JB: This lawsuit is a start. Also: November elections, otherwise the Dems in Congress cannot hold hearings, cannot subpoena witnesses, etc. We need at least one House.
AB: I'm frustrated with Congress, but don't give up on them yet. Contact your Senators and Representatives. Also: there are lawsuits not only against the NSA, but also against companies who worked with the NSA. Pressure your state's public utilities to investigate unlawful activity from telecommunications companies.
JM: The proposed legislation by Specter/Feinstein has subpoena power to investigate, and is the most likely possible route for eventual impeachment.
Q: Why doesn't Congress do more?
JD: Pure partisan politics. The Republicans are more hierarchical than the Democrats and keep the ranks in line by controlling the flow of money, committee assignments, etc. Hastert will not take legislation to the floor unless it receives the majority of votes from his own caucus. This is the "Tuesday-Thursday" club in action.
JB: I blame the American public. Congress is a bunch of followers, and the public is simply not interested. Compare that to Dubai: people got excited, and stuff happened (JD interrupting: "and on a false basis"). There's no draft, so this only affects those with family members in the military. There's no tax increase to pay for the war, so no one's felt the burden. The public thinks according to its own narrow self-interest.
JB (again): "Why should I care? This doesn't affect me." Look at the no-fly list. You can make the list by buying a home from someone who once subscribed to Al-Jazeera. That home address is now in the national database, and now you are, too. It's that easy.
JD: No one here, no one in this room, no one I know doesn't want to fight terrorism, but the question is how to do it. There are more drownings, more industrial accidents, etc. than terrorism is ever likely to match. What we need is perspective.
NH: We have counterterrorism experts who don't even know the difference between Sunni and Shiite. (Anecdote about a friend's child who was denied a visa because he was named "Jihad," an apparently common name)
Q: If the ACLU wins this case, is there a chance for criminal or civil retribution against the President?
AB: No, we're only asking that the program be enjoined. This wouldn't result in any penalites. But, it's clear that violating FISA is a criminal offense, and there is a range of lawsuits against telecommunications companies. They will held be liable if the court decides in our favor, and this could set a precedent.
NH: Unfortunately, the government usually wins because they have the money and the resources. A lot of organizations that are affected can't compete.
AB: The "state secrets" defense that they're using is absurd. The President, General Hayden, and Alberto Gonzales have all already talked about it. There's no secret. They've already said that they've broken the law.
Some final remarks:
AB: But my biggest source of anger came from today. Guantanamo, more suicides. They delivered the most morally bankrupt response I've ever heard ("these are not suicides, they're acts of asymmetrical warfare")
JD: They're taking their cues from Ann Coulter.
JB: You know, I wish they would launch a War on Cancer. Or a War on AIDS. Or a War on Heart Disease. Imagine those same resources spent in that kind of war.
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Finally, what can you and I do?
Kary Moss: "Don't stand idly by.
Those of you near Detroit, there's a rally at 8:30 in front of the Courthouse in preparation for the lawsuit.
Call your Senators.
Stay informed.
Join the ACLU."
Disclaimer: I am not a member of the ACLU, but I admire them for taking this route. Best of luck to them, and I'll be following the case closely. And probably joining, as well.
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UPDATE: User annieday was at the courthouse today, and provides us with information about the proceedings in her comment here. Give her some love, y'all.
Also, the ACLU has just posted a brief blurb about their day in court. You can read it here.
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UPDATE 2: The WaPo's online edition has an excellent article by Andrew Cohen discussing today's case.
Meanwhile, Glen Greenwald outlines the finer points of the case, and what to expect. (hat tip, Marc in KS)
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Update 3: Webcast is now available. You can watch instead of reading through my shoddy transcript! Hoorah!