[Mb-civic] IMPORTANT: Bush's Infinite Constitutional Loop

[William Swiggard]

Tomgram: De la Vega on Bush's Infinite Constitutional Loop

This post can be found at http://www.tomdispatch.com/index.mhtml?pid=69308

Since today's dispatch is by a former federal prosecutor, let me suggest 
a small "law" of my own, one fit for the present moment: When it comes 
to the Bush administration, whatever the subject may be and however bad 
you think things are, they're going to be at least several fallback 
positions worse than whatever top administration officials may be 
fessing up to at any given moment. This, after all, is the 
administration of adamant denials, followed by forceful non-confessions, 
followed by proud statements, followed by limited hang-outs 
<http://www.washingtonpost.com/wp-dyn/content/article/2006/02/28/AR2006022801587.html>, 
followed by even more grudging, only slightly less limited hang-outs. In 
that spirit, without a bit of insider information but with recent 
history as my guide and with consummate confidence, let me assure you 
that the NSA warrantless surveillance operation Elizabeth de la Vega 
takes up below will turn out to be anything but the limited program 
described in the first set of Bush administration fall-back positions. 
It will be a miracle 
<http://www.upi.com/SecurityTerrorism/view.php?StoryID=20060214-053955-9494r> 
if it has not swept up near-infinite 
<http://www.truthout.org/docs_2006/021606L.shtml> American 
conversations, startling numbers of which won't have been conducted with 
overseas parties (and don't even get me started on the subject of the 
secret data-mining of our phone and email life); and surely, before 
we're done, it will turn out that this particular NSA surveillance 
program is only the tip of the administration's surveillance iceberg. 
Where the NSA already is, can the Pentagon or the CIA be far behind? Not 
likely.

Now, consider the infinite loop this President and his top advisors have 
set us journeying along, as de la Vega lays it out. Tom


        Reprogramming the Infinite Loop

    The NSA Spying Debate
    By Elizabeth de la Vega

    It has now been three months since the Bush administration
    reluctantly admitted
    <http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html>
    that it has been conducting warrantless surveillance on American
    citizens, despite the explicit prohibitions of the Foreign
    Intelligence Surveillance Act (FISA). Since then, the public has
    been treated to endless and, unfortunately, fruitless discussion
    about the issue. We have experts and scholars earnestly responding,
    and responding yet again, to administration arguments (both legal
    and factual) that can best be described as protean, internally
    inconsistent, and occasionally evanescent. We have the
    administration refusing to explain the program, but enjoining
    everyone to "trust them." And we have legislators trying to "fix" a
    problem that is undefined by proposing new laws that the
    administration doesn't want. We are, in short, trapped in an
    infinite loop.

    In computer parlance, an infinite loop is a coding sequence that has
    no effective exit because of a flaw in the program. It's a bit like
    trying to call your HMO with what you think is the flu and having a
    recording guide you through a series of numbers that land you back
    at the initial message welcoming you to the system. Of course, you
    can end that phone loop simply by hanging up. The only way to
    permanently extract yourself from an infinite loop in a computer
    program, however, is to find the programming defect. Press the
    refresh key, check the power chord, buy a new computer -- none of
    these fixes will work as long as the fundamental flaw in the program
    is ignored.

    If you have any doubt that the NSA spying "debate" is trapped in an
    infinite loop, you need only review two pieces of evidence. The
    first, which we'll call "Exhibit A," is an article, dated March 8,
    2006
    <http://news.yahoo.com/s/ap/20060308/ap_on_go_pr_wh/eavesdropping_10>,
    entitled "Gonzales: NSA Program Doesn't Need a Law." Aha, you say, a
    mere headline. But this is what the article says: "The Attorney
    General made clear Wednesday, March 8, that the White House is not
    seeking congressional action to inscribe the National Security
    Agency's monitoring into U.S. law."

    How, you wonder, could that be true? Since December, the President,
    White House Press Secretary Scott McClellan, and Secretary of State
    Condoleezza Rice, among others, have said that FISA is outdated, not
    sufficiently agile, ineffective against terrorists, and too
    paper-intensive. Perhaps the AP reporter misinterpreted Gonzales'
    remarks...

    I now refer you to Exhibit B -- a February 28, 2006 letter
    <http://www.washingtonpost.com/wp-dyn/content/article/2006/02/28/AR2006022801587.html>
    from Alberto Gonzales to Arlen Specter, Chairman of the Senate
    Judiciary Committee. In answer to a question about what changes to
    FISA are needed, Gonzales explicitly says, "The Administration
    believes it is unnecessary to amend FISA" to accommodate the spying
    program.

    Let's review. Members of the Bush administration have admitted that
    they routinely ignore FISA. That does not mean, however, that they
    believe there's anything wrong with the law. On the contrary, the
    Bush administration does not think the law needs to be changed; nor
    does it even want the law to be changed. So every time you hear a
    Bush team member mention problems with FISA, all you need to do is
    think like a lawyer and the terms "objection.. irrelevant" will come
    to mind. Under the circumstances, why should Congress waste one more
    minute trying to amend a law the administration has no desire to see
    amended?

    Unfortunately, disposing of the issue of changing the FISA law just
    brings us back to the point where the administration confessed to
    conducting electronic intercepts in the first place without
    following the procedures set forth in that law -- in, to be exact,
    FISA's criminal penalty provision (Title 18, United States Code,
    Section 1809). In other words, it brings us back to the matter of a
    crime having been committed. On this, as we loop upwards again, the
    administration claims two defenses -- one based on its reading of
    the FISA statute; the other on its interpretation of the Constitution.

    The Statutory Argument: That Pesky "After-the-Fact" Feeling

    The statutory argument is that the FISA law allows an exception to
    its procedures if the surveillance in question is otherwise
    "authorized by statute." The administration argues that the
    September 18, 2001 congressional Authorization to Use Military Force
    ("AUMF") against those responsible for the September 11 attacks is,
    in fact, a statute that satisfies this provision. However, not even
    the Republicans on the Senate Judiciary Committee consider this to
    be a reasonable argument. As Arlen Specter said during the February
    6 NSA wiretap hearings, "[the AUMF argument] just defies logic and
    plain English." In the same hearing, South Carolina's Senator
    Lindsay Graham told Gonzales that the administration's statutory
    argument was "very dangerous."

    One other small problem: The administration's statutory argument
    appears to have been devised after the NSA program began. As it
    happens, it is premised in large part on the analysis of a Supreme
    Court detainee case (Hamdi v. United States) that was not even
    decided until 2004. Also, though the Department of Justice's Office
    of Legal Counsel has released an unsigned 42-page paper
    <http://www.washingtonpost.com/wp-dyn/content/article/2006/01/19/AR2006011903276.html>,
    dated January 20, 2006, which purports to set out the
    administration's legal analysis, Attorney General Gonzales has
    refused to provide the Senate Judiciary Committee with any memos
    setting forth a legal analysis of the NSA surveillance program
    written before it began in October 2001. As Senator Patrick Leahy
    noted <http://judiciary.senate.gov/hearing.cfm?id=1770>, Gonzales
    has even refused to say when the statutory argument was first devised.

    However, what Gonzales has acknowledged is that the administration's
    legal analysis has "evolved over time." This is a damning, if not
    entirely surprising, admission. The Office of Legal Counsel is
    charged with providing objective and balanced advice to the
    President before he takes action; it is not supposed to be a firm of
    defense lawyers dedicated to crafting justifications in hindsight.

    Gonzales' cavalier statement is corroborated by recently disclosed
    emails
    <http://www.washingtonpost.com/wp-dyn/content/article/2006/03/08/AR2006030802360.html>,
    sent in December and January, by David Kris, a former Associate
    Deputy Attorney General, to the Office of Legal Counsel lawyers who
    were preparing the written justification for the NSA spying program.
    After reviewing the draft white paper, Kris commented that the AUMF
    statutory argument had a "slightly after-the-fact feeling" to it. He
    was perfectly positioned to make this observation because he had
    been in charge of national security matters at the Justice
    Department from 2000 to 2003. As his emails and a lengthy January
    25, 2006 memo that he provided to journalists make clear, Kris knew
    nothing whatsoever about the NSA surveillance program even though,
    when it began, he headed the legal department assigned to its
    oversight. As to the administration's statutory argument in support
    of the NSA operation, Kris, an expert on FISA, was clearly not
    persuaded.

    The Constitutional Argument: Those Pesky Other Branches of Government

    Unfortunately, the nearly universal conclusion that the
    administration's statutory argument is meritless does not extricate
    us from the loop for a simple reason. Despite the administration's
    quite successful attempt to suggest otherwise, it is clear that the
    statutory argument has never been its principal rationale for the
    warrantless surveillance program. Its main justification has always
    been the constitutional argument that, under Article II, and as
    commander-in-chief, the President has the authority to prevent
    further attacks by taking whatever "military" actions he deems
    necessary to achieve that end. Although this argument enjoys the
    support of a few exceedingly conservative law professors, it has
    been brilliantly refuted, time and again, by the majority of legal
    scholars.

    At bottom, though, the problem raised by this argument is more
    political than legal. The administration began making the claim to
    an unfettered commander-in-chief-style presidency in a rather
    low-key way -- as if it were a given -- in late 2001, after a few
    brave souls had dared to question the conditions under which it was
    detaining enemy combatants. It has repeated it like a mantra ever
    since, accompanied by the refrain that we are at war -- a war not
    specifically in Iraq or Afghanistan, but of a long-term global
    nature and on terrorism.

    Only in June 2004
    <http://www.msnbc.msn.com/id/6732484/site/newsweek/> did the public
    learn that this argument stemmed from the legal and political
    theories of a young Justice Department lawyer, John Yoo. On
    September 25, 2001, he wrote in a memo to the President that, even
    if the congressional Authorization to Use Military Force had never
    existed, no statute passed by Congress "can place any limits on the
    president's determinations as to any terrorist threat, the amount of
    military force to be used in response, or the method, timing and
    nature of the response."

    Astoundingly, it is the absolutely radical theory of presidential
    powers in this memo, clearly espoused by the President, the Vice
    President, and their senior staff, but written by an extreme
    conservative whose views in the now infamous "torture memo"
    <http://www.washingtonpost.com/wp-dyn/articles/A23373-2004Jun7.html>
    have largely been dismissed by those inside and outside the
    administration, that is the fundamental flaw in our "program" for
    national debate. It is this theory that has trapped us in an
    infinite loop of discussion about issues that rational persons of
    good faith should be able to resolve: the obviously illegal
    surveillance of American citizens; prolonged detentions without due
    process; renditions to countries known for their abysmal treatment
    of prisoners; and, most shamefully, our own adoption of torture. But
    until we "debug" this program by fearlessly and unflinchingly
    addressing the President's theory of executive power, and its
    unstated false premises -- especially the claim that we are at war
    by virtue of an undeclared, undefined, and unending "war on terror"
    -- we will all continually find ourselves at different places on the
    same infinite loop.

    It should not require courage to insist on an honest debate about
    issues that are substantial and serious. It should not require
    courage to stand firm in the face of juvenile personal attacks on
    one's allegiance to the United States. But, of course, it does. For
    that type of courage, we need patriots, not politicians -- strength,
    not just strategy. So far, in the Senate, Wisconsin's Russ Feingold,
    California's Barbara Boxer, and Iowa's Tom Harkin have shown
    themselves to be patriots in calling for censure of the President as
    a result of his blatantly illegal NSA surveillance operation. That
    is a total of three. There must be more. We look forward to hearing
    from you soon.

    Elizabeth de la Vega is a former federal prosecutor with more than
    20 years of experience. During her tenure, she was a member of the
    Organized Crime Strike Force and Chief of the San Jose Branch of the
    U.S. Attorney's Office for the Northern District of California. Her
    pieces have appeared in The Nation magazine, the L.A. Times, Salon,
    and Mother Jones. She writes regularly for TomDispatch. She may be
    contacted at ElizabethdelaVega at Verizon.net.

http://www.tomdispatch.com/index.mhtml?pid=69308
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