The president, the stripper and the attorney general

[97silverlsc]

The president, the stripper and the attorney general

The extraordinary legal defence of George Bush's domestic spying reads like a blend of Kafka, Le Carré and Mel Brooks
http://www.guardian.co.uk/usa/story/0,,1705511,00.html
Sidney Blumenthal
Thursday February 9, 2006
The Guardian

In 1996, Governor George W Bush received a summons to serve on a jury, which would have required his admission that 20 years earlier he had been arrested for drunk driving. Already planning his presidential campaign, he did not want this information made public. His lawyer made the novel argument to the judge that Bush should not have to serve because "he would not, as governor, be able to pardon the defendant in the future". (The defendant was a stripper accused of drunk driving.) The judge agreed, and it was not until the closing days of the 2000 campaign that Bush's record surfaced. On Monday, the same lawyer, Alberto Gonzales - now attorney general - appeared before the senate judiciary committee to defend "the client", as he called the president.

Gonzales was the sole witness called to explain Bush's warrantless domestic spying, in obvious violation of the foreign intelligence surveillance act (Fisa) and circumvention of the special court created to administer it. The scene at the Senate was acted as though scripted partly by Kafka, partly by Mel Brooks, and partly by John le Carré. After not being sworn in, the absence of oath-taking having been insisted upon by the Republicans, Gonzales offered legal reasoning even more imaginative than that he used to get Bush off jury duty: a melange of mendacity, absurdity and mystery.

The attorney general argued that Fisa did and did not apply; that the administration was operating within it, while flouting it; and that it didn't matter. The president's "inherent" power, after all, allowed him to do whatever he wanted. It was all, Gonzales said, "totally consistent". His explanation, observed Senator Arlen Specter, the Republican chairman of the judiciary committee, "defies logic and plain English".

Congress, Gonzales elaborated, had no proper constitutional role, but in any case had already approved the president's secret programme by voting for the authorisation of the use of military force in Afghanistan - even if members didn't know it; or even, when informed years later that they had approved the secret programme, objected that they hadn't known that that was what they were doing.

The legislation that was ignored, Gonzales declared, shouldn't be amended to bring this domestic spying under the law because the secret programme was already legal, or might be legal; and anyway it doesn't matter if Congress says it's legal. The all-powerful president should be trusted, but when Bush states wrongly that he goes to court for warrants, it's all right that he doesn't know what he is talking about. "As you know," said Gonzales, "the president is not a lawyer."

Who was or wasn't being spied on couldn't and wouldn't be explained. When Senator Dianne Feinstein, Democrat of California, asked whether the programme could be used to "influence United States political processes, public opinion, policies or media", Gonzales replied: "Those are very, very difficult questions, and for me to answer those questions sort of off the cuff, I think would not be responsible." When Senator Joseph Biden, Democrat of Delaware, asked for assurances that only al-Qaida or suspected terrorists were subjected to surveillance, Gonzales answered: "Sir, I can't give you absolute assurance."

Nor would he say what the programme really was. "I am not comfortable going down the road of saying yes or no as to what the president has or has not authorised," Gonzales said. "I'm not going to respond to that. I'm not going to answer."

Gonzales's ultimate argument was an appeal to history. George Washington, he pointed out in a display of erudition, "intercepted British mail", footnoting a 1997 CIA report on the subject. In the civil war, the telegraph was wiretapped. And during both the first and second world wars, communications were intercepted. Gonzales's ahistoricism about technology aside (George Washington had no cell phones to tap, no computers to hack), Washington, Lincoln and Roosevelt could not have broken a law that did not exist.

Through his convoluted testimony, the attorney general represented "the client" as a useful factotum again. But in his tour of history, he neglected the disclosure by the Associated Press on February 3 of about 200 pages of documents from the White House of President Gerald Ford. These papers highlighted the objections made by Ford's secretary of defence, Donald Rumsfeld, and his chief of staff, Dick Cheney, to getting court warrants for domestic surveillance. It was partly to thwart such unaccountable executive power that Congress enacted Fisa in 1978.

Once again Cheney, the power behind the throne, has found a way to relieve the frustrations of the past. But he is fulfilling more than the curdled dreams of the Nixon and Ford era. The Bush presidency is straining to realise a pre-Washington ideal - unconstitutional monarchy.

 

[97silverlsc]

Editorial
The Trust Gap
http://www.nytimes.com/2006/02/12/opinion/12sun1.html?_r=1&hp&oref=slogin
Published: February 12, 2006

We can't think of a president who has gone to the American people more often than George W. Bush has to ask them to forget about things like democracy, judicial process and the balance of powers — and just trust him. We also can't think of a president who has deserved that trust less.

This has been a central flaw of Mr. Bush's presidency for a long time. But last week produced a flood of evidence that vividly drove home the point.

DOMESTIC SPYING After 9/11, Mr. Bush authorized the National Security Agency to eavesdrop on the conversations and e-mail of Americans and others in the United States without obtaining a warrant or allowing Congress or the courts to review the operation. Lawmakers from both parties have raised considerable doubt about the legality of this program, but Attorney General Alberto Gonzales made it clear last Monday at a Senate hearing that Mr. Bush hasn't the slightest intention of changing it.

According to Mr. Gonzales, the administration can be relied upon to police itself and hold the line between national security and civil liberties on its own. Set aside the rather huge problem that our democracy doesn't work that way. It's not clear that this administration knows where the line is, much less that it is capable of defending it. Mr. Gonzales's own dedication to the truth is in considerable doubt. In sworn testimony at his confirmation hearing last year, he dismissed as "hypothetical" a question about whether he believed the president had the authority to conduct warrantless surveillance. In fact, Mr. Gonzales knew Mr. Bush was doing just that, and had signed off on it as White House counsel.

THE PRISON CAMPS It has been nearly two years since the Abu Ghraib scandal illuminated the violence, illegal detentions and other abuses at United States military prison camps. There have been Congressional hearings, court rulings imposing normal judicial procedures on the camps, and a law requiring prisoners to be treated humanely. Yet nothing has changed. Mr. Bush also made it clear that he intends to follow the new law on the treatment of prisoners when his internal moral compass tells him it is the right thing to do.

On Thursday, Tim Golden of The Times reported that United States military authorities had taken to tying up and force-feeding the prisoners who had gone on hunger strikes by the dozens at Guantánamo Bay to protest being held without any semblance of justice. The article said administration officials were concerned that if a prisoner died, it could renew international criticism of Gitmo. They should be concerned. This is not some minor embarrassment. It is a lingering outrage that has undermined American credibility around the world.

According to numerous news reports, the majority of the Gitmo detainees are neither members of Al Qaeda nor fighters captured on the battlefield in Afghanistan. The National Journal reported last week that many were handed over to the American forces for bounties by Pakistani and Afghan warlords. Others were just swept up. The military has charged only 10 prisoners with terrorism. Hearings for the rest were not held for three years and then were mostly sham proceedings.

And yet the administration continues to claim that it can be trusted to run these prisons fairly, to decide in secret and on the president's whim who is to be jailed without charges, and to insist that Gitmo is filled with dangerous terrorists.

THE WAR IN IRAQ One of Mr. Bush's biggest "trust me" moments was when he told Americans that the United States had to invade Iraq because it possessed dangerous weapons and posed an immediate threat to America. The White House has blocked a Congressional investigation into whether it exaggerated the intelligence on Iraq, and continues to insist that the decision to invade was based on the consensus of American intelligence agencies.

But the next edition of the journal Foreign Affairs includes an article by the man in charge of intelligence on Iraq until last year, Paul Pillar, who said the administration cherry-picked intelligence to support a decision to invade that had already been made. He said Mr. Bush and Vice President Dick Cheney made it clear what results they wanted and heeded only the analysts who produced them. Incredibly, Mr. Pillar said, the president never asked for an assessment on the consequences of invading Iraq until a year after the invasion. He said the intelligence community did that analysis on its own and forecast a deeply divided society ripe for civil war.

When the administration did finally ask for an intelligence assessment, Mr. Pillar led the effort, which concluded in August 2004 that Iraq was on the brink of disaster. Officials then leaked his authorship to the columnist Robert Novak and to The Washington Times. The idea was that Mr. Pillar was not to be trusted because he dissented from the party line. Somehow, this sounds like a story we have heard before.

Like many other administrations before it, this one sometimes dissembles clumsily to avoid embarrassment. (We now know, for example, that the White House did not tell the truth about when it learned the levees in New Orleans had failed.) Spin-as-usual is one thing. Striking at the civil liberties, due process and balance of powers that are the heart of American democracy is another.