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A Surrender or a Feint?

By Dan Froomkin
Special to washingtonpost.com
Thursday, January 18, 2007; 1:00 PM

President Bush used to suggest that trying to bring judicial oversight to his warrantless wiretapping program was tantamount to supporting the terrorists. So the announcement yesterday that the program will now operate under court jurisdiction was undeniably a reversal.

But how much of one? Is the White House running up the white flag in its longstanding battle to expand executive power? Or is this just a tactical retreat?

We really don't know, because even while apparently giving ground, the White House is leaving many important issues terribly unclear.

Among today's questions: Are specific wiretapping warrants now being issued by the court -- as federal law would appear to require -- or did the administration somehow persuade one of the judges on the secret panel to grant some sort of blanket approval?

The Coverage

Dan Eggen writes in The Washington Post: "The Bush administration said yesterday that it has agreed to disband a controversial warrantless surveillance program run by the National Security Agency, replacing it with a new effort that will be overseen by the secret court that governs clandestine spying in the United States.

"The change -- revealed by Attorney General Alberto R. Gonzales in a letter to the leaders of the Senate Judiciary Committee -- marks an abrupt reversal by the administration, which for more than a year has aggressively defended the legality of the NSA surveillance program and disputed court authority to oversee it. . . .

"But many details of the new approach remained unclear yesterday, because administration officials declined to describe specifically how the program will work.

"Officials would not say, for example, whether the administration will be required to seek a warrant for each person it wants to monitor or whether the FISA court has issued a broader set of orders to cover multiple cases. Authorities also would not say how many court orders are involved or which judge on the surveillance court had issued them.

"One official familiar with the discussions characterized the change as 'programmatic,' rather than based on warrants targeting specific cases. This official, who spoke on the condition of anonymity, said the judge who issued the Jan. 10 order was not U.S. District Judge Colleen Kollar-Kotelly, the FISA panel's chief judge, but rather one of that court's rotating members who was assigned to hear cases that week. . . .

"White House and Justice officials said the president was not retreating from his stance that he has the constitutional and legislative authority to order warrantless surveillance on international calls but said the new rules promulgated by the surveillance court have satisfied concerns about whether the FISA process can move quickly enough to authorize surveillance."

Eric Lichtblau and David Johnston write in the New York Times: "The Justice Department said Wednesday that it had obtained multiple orders, or warrants, a week ago from the FISA court allowing it to monitor international communications in cases where there was probable cause to believe one of the participants was linked to Al Qaeda or an affiliated terrorist group. . . .

"Justice Department officials said that the FISA court orders, which were not made public, were not a broad approval of the surveillance program as a whole, an idea that was proposed last year in Congressional debate over the program. They strongly suggested that the orders secured from the court were for individual targets, but they refused to provide details of the process used to identify targets -- or how court approval had been expedited -- because they said it remained classified. The senior Justice Department official said that discussing 'the mechanics of the orders' could compromise intelligence activities."

But not everyone is convinced.

"Representative Heather A. Wilson, Republican of New Mexico, who serves on the Intelligence committee, . . . said she believed the new approach relied on a blanket, 'programmatic' approval of the president's surveillance program, rather than approval of individual warrants.

"Administration officials 'have convinced a single judge in a secret session, in a nonadversarial session, to issue a court order to cover the president's terrorism surveillance program,' Ms. Wilson said in a telephone interview. She said Congress needed to investigate further to determine how the program is run."

Richard B. Schmitt and Greg Miller write in the Los Angeles Times: "The change, announced in a letter from U.S. Atty. Gen. Alberto R. Gonzales to senior members of the Senate Judiciary Committee, appears to be a concession to mounting political and legal challenges to the program. . . .

"A senior Justice Department official, speaking on condition of anonymity, acknowledged there had been 'modifications' in the program. But the official said the court did not grant blanket approval to the program, indicating that officials would continue to have to establish probable cause of individual links to terrorism, at least in some cases."

The Analysis

Peter Baker writes in The Washington Post: "President Bush's decision to submit his warrantless-surveillance program to the jurisdiction of a special intelligence court represents the latest step back from the expansive interpretation of executive power he has asserted since the Sept. 11, 2001, attacks.

"Under pressure from Congress and the courts, Bush in the past six months has closed secret overseas CIA prisons, transferred previously unidentified detainees to regular military custody, negotiated congressional approval for tribunals to try foreign terrorism suspects and accepted at least some regulation of how harshly such prisoners could be interrogated."

And yet, it's not quite so cut and dried. For instance, the black prisons are not closed, they were just emptied -- possibly temporarily -- in early September. And it remains unclear what if any restrictions on interrogation methods the administration is accepting, because they won't say. In late September, the traditional media initially described a Senate bill on detainee policy as a major compromise by the White House -- until it became obvious that the White House had actually gotten everything it wanted.

The consistent theme is that these "retreats" are so cloaked in secrecy and obfuscation that it's really hard to tell if they're retreats at all. Another example: Those "high-value" detainees moved out of the black sites are still being denied access to lawyers, on the grounds that the "alternative interrogation methods" to which they subjected are national security secrets.

Anyway, back to Baker, who writes: "Bush vigorously attacked Democrats on the campaign trail for opposing his program, accusing them of not wanting to eavesdrop on terrorists' telephone calls. Democrats bristled, saying their main concern was the unchecked power Bush was claiming to override traditional constitutional liberties. . . .

"Now Bush has deferred to critics in both parties by agreeing to allow another branch of government to oversee his administration's actions. Bush officials argued yesterday that they will still be able to conduct surveillance effectively because of new rules adopted by the Foreign Intelligence Surveillance Court and maintained that they did nothing wrong before. But they implicitly abandoned their argument that the president's inherent power under Article II of the Constitution was all the authority he needed."

Scott Shane writes in the New York Times: "The Bush administration's abrupt abandonment on Wednesday of its program to eavesdrop inside the United States without court approval is the latest in a series of concessions to Congress, the courts and public opinion that have dismantled major elements of its strategy to counter the terrorist threat.

"In the aftermath of the 2001 attacks, President Bush asserted sweeping powers to conduct the hunt for operatives of Al Qaeda, the detention of suspects and their interrogation to uncover the next plot. But facing no new attack to justify emergency measures, as well as a series of losses in the courts and finally the Democratic sweep of the November election, Mr. Bush has had to retreat across the board."

But, Shane acknowledges: "In some areas, the administration has preserved its freedom to act, notably in persuading Congress last fall to deny prisoners held in Guantánamo Bay, Cuba, the right to challenge their detention in American courts."

What the President Has Said

At a January 26, 2006 press conference, Bush explicitly stated that the program could not operate under FISA:

"[T]he FISA law was written in 1978. We're having this discussion in 2006. It's a different world. And FISA is still an important tool. It's an important tool. And we still use that tool. But also -- and we -- look -- I said, look, is it possible to conduct this program under the old law? And people said, it doesn't work in order to be able to do the job we expect us to do."

And as he campaigned for Republican candidates in the mid-term elections, Bush repeatedly tried to tar Democrats who were calling for judicial oversight as being pro-terrorist -- and even went so far as to get his audiences to participate in the jeering.

Here he is for instance, in October: "When it comes to listening to the terrorists, what's the Democrats' answer? It's, just say no. When it comes to detaining terrorists, what is the Democrats' answer? Just say no. When it comes to questioning terrorists, what's the Democrats' answer?

"AUDIENCE: Just say no!

"THE PRESIDENT: When it comes to trying the terrorists, what's the Democrats' answer?

"AUDIENCE: Just say no!"

Snow Job

Lara Jakes Jordan writes for the Associated Press: "White House press secretary Tony Snow said the administration is satisfied with new rules adopted by the FISA court to address administration officials' concerns about national security. Snow could not explain why those concerns were not addressed before the program began."

At yesterday's press briefing, Snow was particularly adamant -- and particularly unpersuasive -- in his insistence that the decision was not a concession to the looming political and legal challenges.

"Q On the FISA move, rolling the terrorist surveillance program under the FISA Court. You're suggesting that this is a voluntary move by the administration, not an action that's tied to federal court action, or --

"MR. SNOW: No, no, no, no, no. No. No. As a matter of fact, it may be interesting to see how it plays out in federal courts, but no, this is not a response -- again, Bret, this has been going on for two years.

"Q But if it has been going on for two years, why wouldn't you say that during the hubbub when we spent a week dealing with this, instead --

"MR. SNOW: Because the Foreign Intelligence Surveillance Court does not like to have its business discussed in public, and only because of the public revelation of the terrorist surveillance program are we announcing this at this juncture."

In the Blogosphere

Blogging lawyers contributed enormously to the public's understanding of the warrantless eavesdropping program, and how it appeared to violate existing law.

Liberal Glenn Greenwald wrote yesterday: "Having read around the blogosphere and elsewhere, what emerges is that there is no way to discern exactly what this new framework is between the administration and the FISA court because the only evidence describing it is Gonzales' letter, which is quite vague in a number of respects about exactly what has happened.

"But ultimately, there are only two options -- (1) the administration is now complying fully and exclusively with FISA when eavesdropping, in which case all of its prior claims that it could not do so and still fight against The Terrorists are false, or (2) the administration has changed its eavesdropping program some, but it is still not fully complying with FISA, in which case nothing of significance has changed (at least on the lawbreaking issues) because the administration is still violating the law. . . .

"There is nothing to celebrate here. We shouldn't be grateful when the administration agrees to abide by the law. That is expected and required, not something that occurs when the King deigns that it should and we then celebrate that he has agreed to comply with the laws we have enacted. Moreover, the administration has been violating the criminal law -- i.e., committing felonies -- for the past five years in how they have been eavesdropping on us."

On the other side of the political spectrum, Mark Levin blogs for the National Review: "For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president's Constitutional authority, to then turnaround and surrender presidential authority this way is disgraceful. The administration is repudiating all the arguments it has made in testimony, legal briefs, and public statements. This goes to the heart of the White House's credibility. How can it cast away such a fundamental position of principle and law like this?"

Jack Balkin writes that "there is a remarkable similarity between the Administration's behavior in the Padilla case and its behavior here. Recall that the Administration held Padilla in a military prison for three years and insisted that he could not speak to anyone-- much less have the basic rights in the Bill of Rights-- because to do so would put our country at grave risk. Once the Administration realized that the Supreme Court would likely reject its theory of Presidential power, it backtracked and placed Padilla in the criminal justice system-- thus undermining all of its predictions and assertions. . . .

"[A] pattern emerges: the Administration repeatedly takes unreasonable positions about its powers. It insists that obedience to these views is necessary to the very survival of the Republic and that those who would dare to disagree are jeopardizing national security. It makes these aggressive claims repeatedly in every venue, hoping that others, cowed by its aggressive self-confidence and patriotic appeals, will be overawed and simply give in. It struts and boasts and threatens and exaggerates until its bluff is called, at which point its previous assertions simply become-- as they once put it in the Nixon Administration-- inoperative. Put another way, the Administration's stance on Presidential power has resembled nothing so much as an altogether familiar character, the neighborhood bully."

Poll Watch

Ronald Brownstein writes for the Los Angeles Times: "A strong majority of Americans opposes President Bush's decision to send more troops to Iraq, and about half of the country wants Congress to block the deployment, a Times/Bloomberg poll has found.

"As he seeks to chart a new course in Iraq, Bush also faces pervasive resistance to and skepticism about the U.S. commitment -- more than three-fifths of those surveyed said the war was not worth fighting, and only one-third approved of his handling of the conflict.

"And in a striking measure of people's declining trust in Bush, half said they believed he deliberately misled the U.S. in making his case for invading Iraq.

"This is Bush's weakest showing on these questions in a Times poll. . . .

"The public clearly wants Congress to address the issue in some fashion: Forty-five percent of those polled said Iraq should be Capitol Hill's first priority, more than double the next-closest issue (dealing with healthcare, which drew 20%)."

Revolt on the Hill

Anne Flaherty writes for the Associated Press: "A Senate resolution opposing President Bush's war plan on Iraq put the White House and Republican leaders on the defensive Wednesday as they scurried to prevent a trickle of GOP support for the measure from swelling into a deluge.

"Eager to avoid an embarrassing congressional rebuke of the president's new war strategy, the administration seemed to hint that the effort -- led chiefly by Democrats -- might somehow be of assistance to terrorists. They also herded GOP skeptics to the White House. . . .

"'What message does Congress intend to give?' asked White House spokesman Tony Snow. 'And who does it think the audience is? Is the audience merely the president? Is it the voting American public or, in an age of instant communication, is it also al-Qaida?'"

Opinion Watch

David S. Broder writes in his Washington Post opinion column: "The third or fourth time I heard Vice President Cheney tell Fox News's Chris Wallace on Sunday that al-Qaeda was gambling that the United States 'doesn't have the stomach' to keep up the fight in Iraq, it crossed my mind that Cheney may be staring at the wrong part of the national anatomy.

"The question, really, is not whether we have the stomach for the fight but the brains to figure out what to do in Iraq.

"The vice president's effort to reduce it to a question of courage -- to suggest that those who want to expand the war are braver than those urging steps to limit it -- is a standard rhetorical trick. Whenever any Bush policy is questioned, someone from the administration almost automatically charges that its critics are soft on terrorism."

Broder writes that Congress should demand regular, frequent updates and reports.

"The administration may complain about this intense monitoring and call it micromanagement. But after the blunders of the past three years, neither the president nor our allies in Baghdad have earned the right to operate with a free hand."

Jonathan Turley writes in a USA Today op-ed: "When members finally feel comfortable with acting to end this war, they will find all the authority they need in the Constitution and all the reasons they need in Iraq."

Scooter Libby Watch

Neil A. Lewis writes in the New York Times: "The difficulties of seating a jury for the perjury trial of Vice President Dick Cheney's former chief of staff were evident on Wednesday as more prospective jurors expressed criticism of the Bush administration. . . .

"Two people were dismissed on Tuesday after saying they did not trust Mr. Cheney, who will testify for Mr. Libby.

"On the other hand, a woman who worked for Lockheed Martin, the military contractor, expressed admiration for the administration on Wednesday and for Mr. Cheney in particular. She stayed in the pool. . . .

"A prospective juror who produced reports from Iraq for National Public Radio was excused after testifying that he held Judith Miller, a former reporter for The New York Times, in low esteem for her prewar reports that Iraq had unconventional weapons. He said would not be able to credit her testimony at the trial."

Carol D. Leonnig and Amy Goldstein write in The Washington Post that "so far nearly every juror candidate seems to have a connection to the players or events surrounding the leak of an undercover CIA officer's identity."

MSNBC's David Shuster and Slate's John Dickinson blog their observations of Day Two.

In a sort of rebuttal to Scott Shane's glowing profile of Libby in the New York Times yesterday, Murray Waas writes for Huffingtonpost.com: "How could it be that Libby -- seemingly such a stickler for the rules -- outed Valerie Plame, as prosecutors claim in their case against him? . . .

"[I]f if Libby's grand jury testimony is to be believed, it was Cheney, not Libby, who constantly was the one pushing Libby to leak classified information to the press."

And what could have been the motivation behind Libby's alleged perjury?

"[F]ederal investigators from the earliest days of the leak investigation have theorized that Libby was attempting to cover up for Cheney."

Freedom Not on the March

Karen DeYoung writes in The Washington Post: "If 'freedom is on the march,' as President Bush often says, it reversed course or at least took a break last year, according to the administration's favored arbiter of political rights and civil liberties.

"The nonpartisan Freedom House released its annual list of 'free,' 'partly free' and 'not free' countries yesterday. . . .

"Overall, it said, 'the percentage of countries designated as Free has failed to increase for nearly a decade.'

"Iraq, which remained in the not-free group, garnered the worst possible rating of 6 (on a scale of 1 to 6) for both political rights and civil liberties."

The United States still gets the highest ranking, although the report cites such "problems" as "continued controversy over the counter-terrorism policies of the Bush administration."

Bush's Library

Gretel C. Kovach writes in the New York Times: "The president of Southern Methodist University told professors on Wednesday evening that the university would benefit if it became the site of President Bush's presidential library.

"The university president, R. Gerald Turner, spoke at the spring faculty meeting and addressed questions posed by professors after Southern Methodist learned on Dec. 21 that it had emerged as the sole finalist for the library.

"Many professors, including some who want the library on campus, are concerned about the relationship between a proposed Bush policy institute and the library and the effects the institute might have on the university's academic independence."

Ralph Blumenthal wrote in the New York Times last week: "Intimates of President Bush have singled out Southern Methodist University as the likely site of his presidential library, but faculty members, complaining of being bypassed, are raising sharp questions about the school's identification with his presidency."

Blumenthal traced the uproar to an op-ed article in the student newspaper, The Daily Campus, by two professors at the university's Perkins School of Theology complaining about the library selection process.

In that op-ed, Bill McElvaney and Susanne Johnson asked: "Do we want SMU to benefit financially from a legacy of massive violence, destruction, and death brought about by the Bush presidency in dismissal of broad international opinion?

"What moral justification supports SMU's providing a haven for a legacy of environmental predation and denial of global warming, shameful exploitation of gay rights, and the most critical erosion of habeas corpus in memory?

"Given the secrecy of the Bush administration and its virtual refusal to engage with those holding contrary opinions, what confidence could be had in the selection of presidential papers made available to the library? Unless the Bush library philosophy is radically different from the already proven track record of insulation, the library will be little more than a center for the preservation and protection of privileged presidential papers. What would that mean for academic integrity based on open inquiry?"

Bush's Body Language

There was much discussion in my Live Online yesterday about Bush's body language -- and how oddly casual it seems in interviews, even when he's talking about the most deadly serious topics.

Bob Cesca blogs for Huffingtonpost.com (with illustrations): "He appears to lack the conscience to understand the gravity of this illegal and unjustified war -- a war with an almost incalculable toll in dollars and lives.

"But worse, he can't even fake the dignity and tact required to discuss Iraq without the cockeyed smirk of a stoned teenager who's being grilled by his parents after coming home late; the laughter seeming to bubble and tickle just below the surface of a thinly aloof facade. Maybe it's embarrassment. Maybe it's poorly-executed stage direction from his media consultants, i.e. 'be more casual than last week's speech, sir.' Or maybe he thinks it's all just a game. . . .

"I don't care if you're for or against this fiasco, but your president's willful lack of respect and dignity should be an outrage to us all -- every American and every human being. His behavior is supposed to set an example, but as the twisted bodies stack up, fewer and fewer of us can observe it all without faces contorted in anger, despair and shame."

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