Thursday, April 06, 2006

Do We Really Have to Wait for Details of Other Secret Illegal Programs to Leak?

Updated below

In "Warrantless Wiretaps Possible in U.S.," Dan Eggen of the Washington Post reports:
Attorney General Alberto R. Gonzales left open the possibility yesterday that President Bush could order warrantless wiretaps on telephone calls occurring solely within the United States -- a move that would dramatically expand the reach of a controversial National Security Agency surveillance program.
In response to a question from Rep. Adam Schiff (D-Calif.) during an appearance before the House Judiciary Committee, Gonzales suggested that the administration could decide it was legal to listen in on a domestic call without supervision if it were related to al-Qaeda.
"I'm not going to rule it out," Gonzales said.

. . .

In yesterday's testimony, Gonzales reiterated earlier hints that there may be another facet to the NSA program that has not been revealed publicly, or even another program that has prompted dissension within the government. While acknowledging disagreements among officials over the monitoring efforts, Gonzales disputed published reports that have detailed the arguments.
"They did not relate to the program the president disclosed," Gonzales testified. "They related to something else, and I can't get into that."

Justice spokeswoman Tasia Scolinos played down Gonzales's remarks, saying he "did not say anything new" about the NSA program.

As we detail in the update to this post: No kidding. And its old news that what we already know is that the program that they *are* talking about is unquestionably illegal and unconstitutional.

And by the way, the question is raised by these recent articles in the National Journal and NY Sun: did the "trust me" President secretly authorize the leak of classified information for political purposes in violation of his own executive order? I'd hate to presume, as the allegation comes from the in-jeopardy "Scooter" Libby. Still, it's a pretty daring defense gambit to put his word up against the President and Vice President. Would the Libby team have made it without knowing whether it would draw a denial from the White House? Interesting, speculative stuff.

For those looking for a unified theory of Libby, Plame, Cheney, Bush, Iraq, and the uranium from Niger forgery, Prof. Cole has some great visual aids.

Ultimately, whatever you make of this Libby business, it is but a sideshow to the main event: the Unitary, Unbound Executive.

It's time for Censure.

Update:

In what should come as a surprise to noone--despite my rather superficial refusal to presume, above--it turns out that Libby's story of Chief Executive Approval to Leak in the Interest of Politics has been pretty much confirmed by Scott McClellan at a Friday press conference and by a "senior administration official" to the Washington Post:
The White House refused to comment directly on the court filing, except to point out that Bush's very decision to disclose classified information means he declassified it -- an assessment shared by independent legal experts.

A senior administration official, speaking on background because White House policy prohibits comment on an active investigation, said Bush sees a distinction between leaks and what he is alleged to have done. The official said Bush authorized the release of the classified information to assure the public of his rationale for war as it was coming under increasing scrutiny.

Also, the official said, the president has not been accused of authorizing the release of the name of Valerie Plame, the undercover CIA operative whose unmasking in a July 2003 newspaper column prompted the federal investigation.

"There is a clear difference between the two," the official said. "I understand that in politics these two can be conflated. And we're going to have to try to deal with that. But there is an active investigation and that limits our ability to do so."

Still, Bush's action stands in stark contrast to his condemnations of the kind of disclosure that the court filing said he authorized. "Let me just say something about leaks in Washington," Bush told reporters in September 2003. "There are too many leaks of classified information in Washington. There's leaks at the executive branch, there's leaks in the legislative branch, there's just too many leaks. I want -- and if there's a leak out of the administration, I want to know who it is. And if a person has violated law, the person will be taken care of."

That statement was one of many Bush has made over the past three years condemning leaks of sensitive information. His strong words may make the distinction between leaks of classified data and what he is alleged to have done difficult for the White House to explain.

Josh Marshall responds:

It's not too soon to start calling this for what it is: the Bush administration's creeping monarchism.

. . .

[W]hat is most revealing is the attitude suggested by the White House official rather than just the net outcome. Beyond the legal particulars, the president's attitude seems to be that the law just doesn't apply to him -- and that's not surprising since we see so many other instances of that perspective in practice.

Peel back all the individual arguments from Al Gonzales and the president and whomever else they put forward, the underlying idea is not so much that the president is above the law as that he is the law. He embodies it, you might say, even embodies the state itself. And thus what he does can't be illegal. What he does is simply the state cogitating and defending itself.

This is a vision that simply incompatible with any idea of separation of powers because in this view the president's prerogative always trumps the other two branches. And that makes it a grave danger to our constitutional system itself.

And in response to McClellan:
The White House argument is that President made a decision that such-and-such information needed to be heard by the American people. McClellan just said it was "provided to the American people." But he didn't provide it to the American people. He provided it to Judy Miller. Legal or not, it was by definition a 'leak' since it was revealed anonymously to a single reporter.
In a related development, Michael Froomkin points out this Wired article, which ledes:
AT&T provided National Security Agency eavesdroppers with full access to its customers' phone calls, and shunted its customers' internet traffic to data-mining equipment installed in a secret room in its San Francisco switching center, according to a former AT&T worker cooperating in the Electronic Frontier Foundation's lawsuit against the company.
Finally, Jack Balkin sums it all up in "Reductio Ad Dictatorem":

Gonzales' latest admission-- that the President can also engage in purely domestic spying without a warrant-- might seem like a pretty significant grab of power, far beyond what the President said he could do before. But if you understand the Administration's theory of its own power, Gonzales' statement should not be at all surprising. The distinction between domestic communications and international communications is irrelevant to the theory. The latest revelation shows that the President's theory all along has been radical, unreasonable, and dangerous.

. . .

The central problem with the President's argument is that he (or his subordinates) get to decide whether or not a person is associated with a terrorist organization (or associated with an organization associated with a terrorist organization) without having to justify this decision to anyone else. As a result, he can withdraw an American citizen from the ordinary protections of the Bill of Rights (and statutory protections like those in FISA) merely by his own say so.

. . .

. . . Again, the President's argument doesn't distinguish between what he does overseas and what he does within the United States. As far as the President is concerned, if he thinks someone is associated with our enemies (or associated with someone associated with our enemies), he can, without offering any proof of this accusation to a disinterested third party, treat them as an enemy soldier. And, as we know, the laws of war permit enemy soldiers to be captured, detained, and even killed. So, at least in theory, if he could capture Padilla in Chicago, he could also shoot him there.

This theory, taken to its logical conclusions, gives the President the ability to treat anyone living in the United States, including particularly U.S. citizens, as wartime enemies without having to prove their disloyalty to anyone outside the executive branch. In so doing, it offers him what can only be called dictatorial powers-- that is, the power to suspend ordinary civil liberties protections on his say so. The limits on what the President may do under this theory are entirely political-- the question is whether the American people will stand for what the President has done if they discover what he has done in their name. But if the American people don't know what their executive is doing, they can hardly be in a position to object. And so the President has tried to keep secret exactly what he has done under the unreasonable and overreaching theory of Presidential power that his Administration has repeatedly asserted in its legal briefs and public statements.

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