How quickly we forget
by mcjoan
Sun Feb 17, 2008 at 04:26:53 PM PDT
Thirty years ago Congress enacted, and President Ford reluctantly Carter signed, the Foreign Intelligence Surveillance Act, the outgrowth of the investigations of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, mercifully much better known as the Church Committee. One of the many ironies of this 30th anniversary of FISA is that the Senate Select Committee on Intelligence became a permanent fixture in the wake of these investigations, and it is, of course, the SSCI led by Democrat Jay Rockefeller that is doing its damnedest to help the Bush administration destroy that 30-year old law.
The current all-out assault by the Bush administration on FISA is wholly predictable, given the career-long obsession of one man--Dick Cheney--with restoring the power of the executive to its pre-Watergate, pre-Church Committee hey days. Cheney's history on this score is well documented by this Charlie Savage piece. Cheney's career, even in those years when he served in Congress, have been bent toward one end:
"In 34 years, I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job," Cheney said on ABC in January 2002. "I feel an obligation...to pass on our offices in better shape than we found them to our successors."
...[Following the NYT's revelations in December 2005 of the warrantless wiretapping scandal] Cheney sat down with reporters and laid out his belief "in a strong, robust executive authority." Bypassing the warrant law, he asserted, was "consistent with the constitutional authority of the president."
Cheney also indicated that he hopes to establish further precedents for the expansion of presidential authority. Listing other statutory constraints on presidential power, he said they "will be tested at some point." When Cheney was asked whether he believed that the pendulum of executive power had swung back far enough in the direction he desired, or whether it needed to swing back further, he demurred.
"I do think that to some extent now, we've been able to restore the legitimate authority of the presidency," he replied.
One thing you can say for Dick, he's consistent. In 1975, when the Church investigations were going full bore, Seymour Hersh published an article in the New York Times describing a CIA espionage program, Cheney's reaction:
Congressional investigations of the C.I.A., including one by a select committee led by Senator Frank Church, were under way in the post-Watergate era.
Under the heading "Broader ramifications," Mr. Cheney wrote: "Can we take advantage of it to bolster our position on the Church committee investigation? To point out the need for limits on the scope of the investigation?"
More immediately, Mr. Cheney considered possible responses to the article. One was to "seek immediate indictments of NYT and Hersh." A second was to get a search warrant "to go after Hersh papers in his apt."
During the Church Committee's investigations, the White House, where Dick Cheney had risen to the position of chief of staff, frequently resorted to claims that Church was harming national security, that his committee had left the intelligence community "naked before our enemies."
The White House was scarcely more temperate. In his State of Union address, Ford referred to "the crippling of our foreign intelligence agencies" in a dangerous world. Vice President Rockefeller accused the Church committee of aiding America's enemies by exposing U.S. intelligence operations. And Henry Kissinger, who later described Church as "our scourge on Vietnam and constant critic of 'deceitful' methods," called on the country to stop undercutting its ability to conduct foreign policy. Years later, Kissinger continued to say that Church had "practically wrecked" the C.I.A. [Fighting the Odds: The life of Senator Frank Church, LeRoy Asby and Rod Gramer, Washington State Univ. Press, 1994. p. 488]
Despite the supposed "crippling" of the CIA, the U.S. was able to prevail in what was the greatest threat to the safety of the country, and the entire world; nuclear annihilation in a potential war with the Soviet Union. The existence of FISA also didn't hamper the U.S. from gathering enough intelligence to suspect, and to provide a briefing to the President on August 6, 2001, an imminent attack by al Qaeda within the United States. We had the evidence, it was ignored.
The national security trope is that last refuge of Cheney and Bush; one that they have relied upon time and time again to justify the executive power grab and who knows what illegal activities. Unfortunately, it's a head fake that has worked with Jay Rockefeller and too many Blue Dog Democrats in the Senate and House, particularly when it comes to telco amnesty.
In that regard, let's return to May 15, 2007, and James B. Comey's incredible testimony about the hospital confrontation between Alberto Gonzales and John Ashcroft over this program. Analyzing that testimony, Marty Lederman wrote:
This is the real heart of the Comey story -- What happened between September 2001 and October 2003, before Comey and Goldmsith came aboard? Just how radical were the Administration's legal judgments? How extreme were the programs they implemented? How egregious was the lawbreaking?
It is imperative now that the Senate do all it can to obtain and investigate the entire paper trail that led up to the events described yesterday. There is no longer any excuse for the legislature to be denied the OLC opinions, at least pre-Goldsmith, that were the basis for the Executive branch's regime of extra-legal conduct. Not only the OLC Opinions and the Executive orders on the NSA program, but also the all-important Yoo Opinion signed on March 14, 2003, the day after Jay Bybee left OLC, which was the genesis for the terrible abuse that occurred in the Department of Defense during the remainder of 2003.
We don't know the answers to Lederman's questions. We don't know because the Senate has not investigated. Instead, it caved to the pressure of the administration by actually trying to codify the illegal activities in its S 2248, the FISA update. And it is aiding and abetting the administration in making sure we never know the answer to these questions by closing the one avenue that exists to investigate: the civil suits brought by the ACLU and the Electronic Frontier Foundation against the telcos that did the administration's illegal bidding.
The national security argument is one that should now be firmly debunked. The House of Representatives thwarted Bush's will and allowed the egregious Protect America Act to expire. The sky hasn't fallen. Bush was so little concerned about our nation's security that he abandoned his Oval Office post for a week to go to Africa.
We all now know, and if we didn't, DNI McConnell has been kind enough to tell us, the "real issue . . . is liability protection for the private sector." Meaning, the real issue is maintaining a veil of secrecy over the illegal activities of the telcos and, more importantly, the administration.
In all of this, Jay Rockefeller, more than any other, has played the patsy, for unknown reasons. It can't be the telcos' campaign donations--he is a Rockefeller, after all. He hardly needs the money. Perhaps it's his natural affinity for the private sector--he is a Rockefeller, after all. But whatever it is, it's a dereliction of duty, the duty he swore when taking his oath of office, to "support and defend the Constitution."
To remind him of that oath, and of the magnitude of his actions, here's a reminder for him from his predecessor on the Intelligence Committee, Senator Church:
Personal privacy is protected because it is essential to liberty and the pursuit of happiness. Our Constitution checks the power of Government for purposes of protecting the rights of individuals, in order that all our citizens may live in a free and decent society. Unlike totalitarian states, we do not believe that any government has a monopoly on truth.
When government infringes those rights instead of nurturing and protecting them, the injury spreads far beyond the particular citizens targeted to untold numbers of other Americans who may be intimidated.
Free government depends upon the ability of all its citizens to speak their minds without fear of official sanction. The ability of ordinary people to be heard by their leaders means that they must be free to join in groups in order more effectively to express their grievances. Constitutional safeguards are needed to protect the timid as well as the courageous, the weak as well as the strong. While many Americans have been willing to assert their beliefs in the face of possible governmental reprisals, no citizen should have to weigh his or her desire to express and opinion, or join a group, against the risk of having lawful speech or association used against him....
The natural tendency of government is toward abuse of power. Men entrusted with power, even those aware of its dangers, tend, particularly when pressured, to slight liberty.
Our constitutional system guards against this tendency. It establishes many different checks upon power. It is those wise restraints which keep men free. In the field of intelligence those restraints have too often been ignored....
The United States must not adopt the tactics of the enemy. Means are important, as ends. Crisis makes it tempting to ignore the wise restraints that make men free. But each time we do so, each time the means we use are wrong, our inner strength, the strength which makes us free, is lessened.
Update: Now this is a signing statement. Pres. Carter on signing FISA:
I am pleased to sign into law today the Foreign Intelligence Surveillance Act of 1978. . . . The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted. It clarifies the Executive's authority to gather foreign intelligence by electronic surveillance in the United States. It will remove any doubt about the legality of those surveillances which are conducted to protect our country against espionage and international terrorism.
(H/T bobdevo in comments)
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