Shorter WSJ: George Bush Is Irrelevant and So Is McCain

This WSJ editorial beating up on Dems for their shiny new FISA spine is full of the illogical blathering you’d expect. Take this paragraph, which claims that even with immunity from PAA and even with a FISA court order, the telecoms simply won’t do as they’re mandated to do.

Mr. Reyes claims that existing wiretap orders can stay in place for a year. But that doesn’t account for new targets, which may require new kinds of telecom cooperation and thus a new court order. Mr. Reyes can make all the assertions he wants about immunity, but they are no defense against a lawsuit. For that matter, without a statute in place, even a renewed order by the Foreign Intelligence Surveillance Court is likely to be challenged as illegitimate. A telecom CEO who cooperates without a court order is all but guaranteed to get not merely a wiretap lawsuit, but also a shareholder suit for putting the company at legal risk.

Apparently, the WSJ believes that even if the telecoms have immunity, it’s no defense against a lawsuit (someone better tell Mitch and Mike McConnell that all their immunity efforts are for naught). And even if the FISA Court issues a warrant under that statute known as "FISA," the telecoms would regard such an order as illegitimate, because there’s no statute supporting it.

And of course, the WSJ parrots the now mandatory claim that ACLU and EFF are really trial lawyers wearing low-paying disguises.

So instead they’re trying to do it through the backdoor by unleashing the trial bar to punish the telephone companies.

I’m most amused, though, by the closing paragraph, which gets to the heart of the panic over FISA.

Mr. Bush has been doing his part in this debate, but his political capital is waning. The Republican who needs to make himself heard now is John McCain. The Arizona Senator is voting the right way, but he seems curiously disengaged from a debate that plays to his national security strengths. The time to speak up is before the next 9/11 Commission. [my emphasis]

Bush’s "political capital is waning" must be GOP-speak for "don’t look now because the Democrats have stood up to Bush."  And, pathetically, the WSJ whines that John McCain isn’t cowering Democrats into unquestioning obedience, either.

It’s like flying without a net, isn’t it, WSJ? When you can’t rely on Bush’s "political capital" to cow others into compliance?

Ode to Donna Edwards’ Wheaties

I don’t actually know that this sudden outbreak of spine and seemingly coordinated messaging among Democrats is the result of seeing Donna Edwards kick a Democratic incumbent’s behind, but she’s a great person and might as well get the credit. Here’s Silvestre Reyes:

Because I care so deeply about protecting our country, I take strong offense to your suggestion in recent days that the country will be vulnerable to terrorist attack unless Congress immediately enacts legislation giving you broader powers to conduct warrantless surveillance of Americans’ communications and provides legal immunity for telecommunications companies that participated in the Administration’s warrantless surveillance program.


If our nation is left vulnerable in the coming months, it will not be because we don’t have enough domestic spying powers. It will be because your Administration has not done enough to defeat terrorist organizations– including al Qaeda– that have gained strength since 9/11. We do not have nearly enough linguists to translate the reams of information we currently collect. We do not have enough intelligence officers who can penetrate the hardest targets, such as al Qaeda. We have surged so many intelligence resources into Iraq that we have taken our eye off the ball in Afghanistan and Pakistan. As a result, you have allowed al Qaeda to reconstitute itself on your watch.

You have also suggested that Congress must grant retroactive immunity to telecommunications companies. As someone who has been briefed on our most sensitive intelligence programs, I can see no argument why the future security of our country depends on whether past actions of telecommunications companies are immunized.

The issue of telecom liability should be carefully considered based on a full review of the documents that your Administration withheld from Congress for eight months. However, it is an insult to the intelligence of the American people to say that we will be vulnerable unless we grant immunity for actions that happened years ago.


I urge you, Mr. President, to put partisanship aside and allow Republicans in Congress to arrive at a compromise that will protect America and protect our Constitution.

I, for one, do not intend to back down – not to the terrorists and not to anyone, including a President, who wants Americans to cower in fear.

We are a strong nation. We cannot allow ourselves to be scared into suspending the Constitution. If we do that, we might as well call the terrorists and tell them that they have won. [my emphasis]

Read more

Working Extra Hours Is Extra-Constitutional

I guess I shouldn’t be surprised that, according to the Tuesday-through-Thursday Republicans and the Most-Vacation-Ever President, working extra days is extra-constitutional. That’s the implication, after all, of the Administration’s little temper tantrum over the fact that the Senate stayed in session over Christmas to prevent Bush from recess appointing Steven Bradbury.

Q Tony, Reid’s quote on that was — he said he called John Bolten, who, "He called me back and said it is Bradbury or nobody. I said, you’re willing to now allow 84 of your people to get approved because of this guy? He said, yep, that’s what the President wants."

MR. FRATTO: I think what the ask of the administration was, was for the President to give up his constitutional authority to make recess appointments. The power to make recess appointments is granted to the President in the Constitution. And that’s what the President was being asked to forego.

Now, the Senate, then, went and took the extra constitutional act of — over the holidays, of engaging in speed sessions with the soul purpose of frustrating the President’s constitutional authority to make appointments.

So it’s not an offer that we make — you know, that we would find credible or appropriate. And it’s also, again, not the way this system is intended to work. The system — the way it is intended to work is the President nominates, the Senate reviews the nominee, and they can give an up or down vote on these nominees, and we can either put them in place, as the President intended, or the Senate can vote them down. That’s the power that the Constitution gives them.

Apparently somewhere between Article I and Article II of the Constitution it mandates vacations. Who knew??!

Mukasey Refuses to Say Whether He Was Instructed Not to Enforce Subpoenas

This was stunning stuff. I’m going to hunt down a YouTube. But for now, understand that AG Muksey refused to answer Robert Wexler’s question of whether or not the AG had been instructed not to enforce the subpoenas of Harriet Miers and Josh Bolten. Here’s the liveblog excerpt:

Wexler: Failure to reply to Congressional subpoenas. Refusal of Bolten and Miers to even appear. Have you been instructed by POTUS to enforce or not to enforce subpoenas.

MM: I can’t say.

Wexler: Can you tell me the individual that Clinton instructed not to appear?

MM: Dellinger wrote an opinion.

Wexler: I didn’t ask opinions. I asked about the President instructing someone not to appear. Have you been instructed to enforce or not to enforce contempt citations.

MM: That’s privileged.

Wexler: Should Congress pass a contempt citation would you enforce it?

MM: If you’re talking about a contempt citation based on Bolten’s failure to appear–he can’t violate the President’s request.

Wexler: Are you the people’s lawyer or the President’s?

MM: AG of US.

Shouldn’t Mukasey be able to say, "it would be inappropriate for me to discuss these subpoenas with my superiors, Bush, Dick, and Addington"?

Richard Clarke to Bush: Stop Fear-Monger to Take Away Civil Liberties

This article, from the man whose warnings about 9/11 Bush refused to believe, ought to be sent to every Senator.

For this president, fear is an easier political tactic than compromise. With FISA, he is attempting to rattle Congress into hastily expanding his own executive powers at the expense of civil liberties and constitutional protections.

I spent most of my career in government fighting to protect this country in order to defend these very rights. And I know every member of Congress – whether Democrat or Republican – holds public office in the same pursuit.

That is why in 2001, I presented this president with a comprehensive analysis regarding the threat from al-Qaeda. It was obvious to me then – and remains a fateful reality now – that this enemy sought to attack our country. Then, the president ignored the warnings and played down the threats. Ironically, it is the fear from these extremely real threats that the president today uses as a wedge in a vast and partisan political game. This is – and has been – a very reckless way to pursue the very ominous dangers our country faces. And once again, during the current debate over FISA, he continues to place political objectives above the practical steps needed to defeat this threat.

In these still treacherous times, we can’t afford to have a president who leads by manipulating emotions with fear, flaunting the law, or abusing the very inalienable rights endowed to us by the Constitution. Though 9/11 changed the prism through which we view surveillance and intelligence, it did not in any way change the effectiveness of FISA to allow us to track and monitor our enemies. FISA has and still works as the most valuable mechanism for monitoring our enemies.

In order to defeat the violent Islamist extremists who do not believe in human rights, we need not give up the civil liberties, constitutional rights and protections that generations of Americans fought to achieve. We do not need to create Big Brother. With the administration’s attempts to erode FISA’s legal standing as the exclusive means by which our government can conduct electronic surveillance of U.S. persons on U.S. soil, this is unfortunately the path the president is taking us down.

Click through for the rest–and then send copies to your Senators.

You think maybe Clarke is getting fed up with this false debate?

Bush Would Forgo New FISA Programs to Make Sure Dick Gets Immunity

Bush says he wants a new FISA bill, and he wants it now

The White House told Democratic congressional leaders Saturday that President Bush opposes a 30-day extension of an expiring eavesdropping law and instead wants an expanded version to be passed by Friday.

“The president would veto a 30-day extension,” a senior administration official said. “They’re just kicking the can down the road. They need the heat of the current law lapsing to get this done.” 

To which Reid appropriately pinned any blame on Bush.

Senate Majority Leader Harry Reid (D-Nev.) called the veto threat "shamefully irresponsible" and "simply posturing in advance of Monday’s State of the Union address."

"There will be no terrorism intelligence collection gap," Reid said. "But if there is any problem, the blame will clearly and unequivocally fall where it belongs: on President Bush and his allies in Congress."

Reid’s response is useful. But he needs to say one more thing. If Bush vetos a 30-day extension, he will be doing so for one reason and one reason only: because the existing legislationg, PAA, doesn’t offer immunity to telecoms–and with it, to Dick Cheney and everyone else in this Administration who pushed the telecoms to continue their spying even after the acting AG, Jim Comey, refused to certify the program for a period in 2004.

Bush is willing to forgo implementing new FISA programs (all the existing ones will continue for at least six months) all because he wants Dick to get his immunity … now. This is about Bush putting Dick’s interests–and his own–above the security of the country.

Bush’s Secret Cyber Initiative

I’m actually fairly sympathetic to the notion that we need to get much better at defending our network infrastructure against attacks. I’m fairly supportive of the notion that one agency within the government should take the lead on the project.

But the news that Bush has assigned that role secretly…

President Bush signed a directive this month that expands the intelligence community’s role in monitoring Internet traffic to protect against a rising number of attacks on federal agencies’ computer systems.

The directive, whose content is classified, authorizes the intelligence agencies, in particular the National Security Agency, to monitor the computer networks of all federal agencies — including ones they have not previously monitored.

Until now, the government’s efforts to protect itself from cyber-attacks — which run the gamut from hackers to organized crime to foreign governments trying to steal sensitive data — have been piecemeal. Under the new initiative, a task force headed by the Office of the Director of National Intelligence (ODNI) will coordinate efforts to identify the source of cyber-attacks against government computer systems. As part of that effort, the Department of Homeland Security will work to protect the systems and the Pentagon will devise strategies for counterattacks against the intruders.

And the news that cyber-defense still focuses exclusively on government networks…

Supporters of cyber-security measures say the initiative falls short because it doesn’t include the private sector — power plants, refineries, banks — where analysts say 90 percent of the threat exists.

"If you don’t include industry in the mix, you’re keeping one of your eyes closed because the hacking techniques are likely the same across government and commercial organizations," said Alan Paller, research director at the SANS Institute, a Bethesda-based cyber-security group that assists companies that face attacks. "If you’re looking for needles in the haystack, you need as much data as you can get because these are really tiny needles, and bad guys are trying to hide the needles."

…Doesn’t give me a whole lot of confidence that this is being done right.

Though I will say this. The news that Michael Chertoff’s badly managed and contractor dominated Department of Homeland Security is no longer slotted to take the lead on this is one bit of good news. Read more

How to Establish an Empire without Congressional Approval

Charlie Savage has a great article summarizing Bush’s threats to establish a security relationship with Iraq without consulting Congress.

President Bush’s plan to forge a long-term agreement with the Iraqi government that could commit the US military to defending Iraq’s security would be the first time such a sweeping mutual defense compact has been enacted without congressional approval, according to legal specialists.

After World War II, for example – when the United States gave security commitments to Japan, South Korea, the Philippines, Australia, New Zealand, and NATO members – Presidents Truman and Eisenhower designated the agreements as treaties requiring Senate ratification. In 1985, when President Ronald Reagan guaranteed that the US military would defend the Marshall Islands and Micronesia if they were attacked, the compacts were put to a vote by both chambers of Congress.

By contrast, Bush and Iraqi Prime Minister Nouri Al-Maliki have already agreed that a coming compact will include the United States providing "security assurances and commitments" to Iraq to deter any foreign invasion or internal terrorism by "outlaw groups." But a top White House official has also said that Bush does not intend to submit the deal to Congress.

Savage shifts the focus from whether Bush is trying to force the hand of his successor to the Constitutional questions behind such an act. And he finds that even wingnut Republicans oppose Bush’s threats to bypass Congress. Read more

Did Bush Re-Nominate Bradbury to Control Mukasey?

Mind you, I’m sure Bush re-nominated Steven Bradbury, the second incarnation of John Yoo, because Bradbury has dutifully shredded the Constitution on demand, and Bush would like to reward him. But the National Journal’s coverage of the Bradbury re-nomination raises an interesting point. It notes, as does everyone else, that Bradbury’s nomination is a big "Cheney yourself" to the Democrats who have refused to approve Bradbury’s nomination in the past.

In the latest example of the continuing partisan rifts over CIA interrogation techniques, Bush renominated lawyer Steven Bradbury to a senior post at the Department of Justice yesterday, despite years of Democratic resistance to his nomination.


Bush’s previous attempts to install Bradbury permanently as head of the OLC stalled during the confirmation process, when the DOJ refused to provide senators with copies of Bradbury’s legal opinions on terrorism issues. His previous nominations have expired, and last year Democrats pressed Bush to withdraw Bradbury’s candidacy for the post. But the administration refuses to yield, claiming that Bradbury’s opinions on interrogation techniques do not contradict the law.

But then it points out that Mukasey promised to review the existing OLC opinions to make sure they don’t shred the Constitution.

During his own confirmation hearings last fall, Attorney General Michael Mukasey pledged to review the controversial OLC opinions and "change them" if need be.

Now, I have no idea whether Bush re-appointed Bradbury with Mukasey’s approval; John Ashcroft was able to scuttle John Yoo’s appointment to the OLC, which led to the appointment of Jack Goldsmith. But I imagine Bush (and more importantly, Cheney) wasn’t too happy with the way that worked out.

Certainly, when Mukasey visits the Senate Judciary next week, they ought to ask him whether Bush consulted with him before he re-appointed Bradbury.

Whether Mukasey approved that re-appointment or not, though, the re-appointment guarantees that Bradbury can continue to act as OLC head through the end of Bush’s term. It ensures that Dick and Addington have their stool (in both senses of the word, I suspect) in the heart of DOJ, preventing any real roll-back of Dick’s Constitutional atrocities.

No matter what Mukasey’s intentions, it seems, Bush and Dick now have their insurance that Mukasey can only do so much to fix this Administration’s shredding of the Constitution.

The Supplicant to Kings and “Entrepreneurs”

Via email, joejoejoe highlighted a line from Bush’s speech to Saudi "entrepreneurs" that Holden had highlighted.

And one of my concerns was after September the 11th that our visa policy, particularly for Saudis, was tightened to the point where we missed opportunity to show young and old alike what our country is really about.

As joejoejoe points out, we tightened a very permissive visa policy with the Saudis because 15 Saudis used that permissive visa policy to enter the US and kill 3000 Americans. Letting Khalid al-Midhar into the country to see "what our country is really about" apparently did little to persuade him not to get into a plane and kill lots of Americans.

But that wasn’t the only supplication that Bush offered these Saudi businessmen. Here’s the whole statement.

I’m George W. Bush, President of the United States. (Laughter.) Thank you all for joining us. Ambassador, thanks for setting this up. It’s important for the President to hear thoughts, hopes, dreams, aspirations, concerns from folks that are out making a living. And I really appreciate you taking time out of your day to come and visit with me. I’m looking forward to hearing your thoughts.

One thing that’s for certain: The United States benefits when people come to my country. And one of my concerns was after September the 11th that our visa policy, particularly for Saudis, was tightened to the point where we missed opportunity to show young and old alike what our country is really about. I love the fact that some of you were educated in America. I think you’ll find you got a good education there, but more importantly, Americans get to see you, and you get to see them. And the best way to achieve better understanding in the world is for folks just to get together, and get to understand that we share the same God, and we share the same aspirations for children and for our futures. Read more