Dear Mr. Hiatt:
The editorial that you ran today by Rockefeller was disingenuous.
It is one thing to publish various opinions. It is another to publish pieces that are disingenuous.
The piece reads "using existing laws or devise new, secret intelligence programs in uncharted legal waters."
This is a disingenuous statement in two ways.
First, "uncharted legal waters" is not french for "illegal means." It implies ambiguity. That someone claims something is "ambiguous" does not make it ambiguous. Ask Philbin, Comey (your own, sligthly skewed, editorial here) and Jack Goldsmith. Keeping in mind that Goldsmith is a staunch conservative, and Harvard Scholar. Ask Robert Levy, another staunch conservative, and Constitutional scholar and federalist society member, who testified in front of the Senate Judiciary Committee. Ask Bruce Fein, Deputy Attorney General under Ronald Reagan, and another staunch conservative. The list goes on. And then, once one moves beyond "staunch conservatives" into moderate Republicans, Independents, and Democrats, it does not end. In fact, if you have doubts, why don't you contact the American Bar Association -- they are, after all, experts on these types of questions.
Is your constitutional and legal understanding that skewed, or is the newspaper complicit in this disingenuousness?
That is not a rhetorical question. If it is the former, I will gladly explain the concepts. They are not partisan. They are not political. They are not "left" v. "right."
In fact, almost anyone with competent legal and constitutional understanding is aware that the issue is reasonably clear, with the exception of a rather small cabal of radical "interpretationalists" led by Yoo and Yoo -- whose interpretation is illogical, tautological, and out of whack with the founding principles of our nation, as well as the concept of separation of checked powers which our Constitution was set up to ensure in the first place. This radical interpretation renders that division optional at the Executive's discretion (something does not even "have to" be related to national security under this theory, because under this theory, the discretion by definition as to what does and what is necessary goes to the Executive), thus undermining our Constitution's most basic purpose. And even if it didn't, there is nothing in the Constitution -- which Presidents place their hands on the bible and swear to uphold -- which even implies that the separation of powers doctrine somehow is magically suspended for anything one might deem "national security" related.
...
Steve Coll back, in late 2004, when he was still Managing Editor, wrote that the newspaper's purpose was to serve as a check upon power. You have instead become a cheerleader for it.
The most radical changes to sovereign states often occur right before the populace's eyes, with the majority having little idea of what is going on, often obfuscated by intense, belief driven rhetoric and demonization of other views.
With the exception of the demonization of views aspect, your paper is helping to lead the way.
Yet this first consideration is not even the most disingenuous part of this first paragraph.
Let's revisit that first line: ""using existing laws or devise new, secret intelligence programs in uncharted legal waters." It clearly implies that existing laws did not take into account what had happened on September 11, 2001, and were only passed prior to it. Thus presenting some sort of "quandary."
Little could be further from the truth. In the very next month after September 11, the USA Patriot Act was signed into law. The Patriot Act not only provided the tools that the administration claimed that it needed, but it specifically addressed and updated the "existing" law referred to by Senator Rockefeller; that is, the Foreign Intelligence Surveillance Act (FISA). In fact, FISA was updated in direct response to the attacks of September 11, in order to accommodate a reasonably perceived need for increased counter intelligence data.
This is wholly at odds with the clear implications of the piece, and leaves readers completely mislead. The purpose of an editorial page is to opine, not to mislead.
But even if this was not the case, that is, the law was not updated in direct response to the attacks of September 11, why not follow the process that has been followed for over 200 years? That is, get new laws passed?
The reason why is that the program, aside from raising legitimate 1st, 4th, and 5th Amendment questions, went against our nation's number one founding principle; that unchecked power will be abused. (In fact, and partly as a result, these programs that Rockefeller now argues in favor of immunity for were in place for several years, not weeks while legal issues were resolved. And if the other considerations raised by Rockefeller are not also misleading, then any cases against the Telecoms can be thrown out by the Courts on that basis, and there is no need for immunity. Furthermore, his argument, frankly, that requiring accountability undermines future cooperation, is dangerous, in that it undermines the necessary independence between government and corporate apparatus'.)
The one argument that has been presented for this is that somehow, secrecy was necessary to ensure the effectiveness of the program itself. Aside from the fact that this almost makes a mockery of the most basic clauses of our Constitution, it is similarly a false argument. What is kept secretive is not just the specific terrorist connections we are attempting to spy on and the minutiae involved, but our process of oversight and review -- which has nothing to do with information that can somehow enable terrorists to "avoid" being spied up.
The reality is that the current administration has exhibited a chilling disdain for our system of open government, from its first days in office. Yet this excessive overall move towards secrecy, and the clampdown (and even in some cases the false alteration of) public information therein, has similarly, barely been covered by your newspaper. And it has also exhibited a chilling disdain for our system of checks and balances under our Constitution. Yet this, similarly, has barely been covered by your newspaper.
What many critics of the administration do not understand, is that the administration in many instances may believe it is actually doing the right thing. There was tremendous angst over our responses prior to September 11, the underlying cause of which, once again, was similarly, barely covered by your newspaper:
On the one hand, there was a blatant disregard for the threat that the al-Qaeda network presented prior to that time, relative to the increase in both the overall threat level and our overall knowledge of it, and particularly in consideration of the specific warnings passed on by the prior administration. On the other hand, to acknowledge the level of disregard would be to acknowledge an egregious failure of awareness -- some might suggest competence. (Recall that in a long speech on national security that was, ironically, to be delivered on September 11, 2001 by our then National Security Advisor -- the greatest threat that we faced, al-Qaeda, was barely even referenced.) As a result, the administration's response subsequently was; "we just did not know how, when or where." So the issue was ignored, as if a complete roadmap was supposed to have been drawn by our enemies before any significant attention was paid to it at all. And your newspaper similarly did not pay attention to the irrationality of this explanation either.
And so the administration's response to all of this? Toss aside the Constitution, and secretly, at that -- the very thing that our founding fathers sought most of all, to prevent.
Defense of the realm is the claim that Hitler used to explain repeated violations of the rule of law. The rule of law within our government structure has broken down, and you have become a cheerleader for it. The threat from terrorists is grave, as have been other threats that we have faced. Tossing aside our founding principles simply because of this, is not only the cowardly approach, it is not directly relevant to fighting terrorism (third party oversight need not compromise our intelligence needs), and in the long run, is not an approach that is consistent with who and what we are as an open, robust democracy. Unless that is what we no longer wish to be. And is that, in essence, what you are cheerleading for? If not, then you better revaluate your role, and your standards. Because that is what, intentional or not, you are doing.