By Dan Froomkin
Special to washingtonpost.com
Tuesday, August 7, 2007; 1:34 PM
We won't have President Bush to kick around anymore in about 18 months. But until then, Bush has someone he can still kick around: the Democratic Congress. At least when it comes to terror issues.
Despite his 65 percent job-disapproval rating, Bush was able to cow congressional Democrats over the weekend into granting him unprecedented authority to eavesdrop on the international telephone calls and e-mail messages of American citizens without warrants.
Now, having beaten the Democrats into submission with the threat of looking weak on terror, a re-emboldened White House is aiming at the media, hoping to bully journalists into making the new law sound innocuous.The 'Protect America' Act
Jim Rutenberg writes in the New York Times: "Until last weekend, President Bush had repeatedly fallen short in seven months of battles with a Democratic-led Congress that would not give him what he wanted on immigration or education, health care or energy policy.
"But the Congressional vote that authorized eavesdropping without warrants on international communications, including those involving Americans within the United States, has shown that there is at least one arena in which Mr. Bush can still hold the line: terrorism. . . .
"For a president who has played defense most of the year, relying on veto threats and, in terms of Iraq, almost plaintive pleas for time, it was a rare, winning use of offense. The victory points up an enduring challenge for Democrats, even as they have gained other advantages over Mr. Bush and his fellow Republicans. . . .
In interviews, Democratic leaders and their aides acknowledged being outmaneuvered by the White House, which they accused of negotiating in bad faith, and portrayed the bill as a runaway train. . . .
"Everybody was afraid they might be branded as soft on terrorism,' Senator Barack Obama of Illinois, a Democratic presidential candidate, said Monday while speaking to Iowa voters."
James Risen writes in Monday's New York Times: "President Bush signed into law on Sunday legislation that broadly expanded the government's authority to eavesdrop on the international telephone calls and e-mail messages of American citizens without warrants.
"Congressional aides and others familiar with the details of the law said that its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They said seemingly subtle changes in legislative language would sharply alter the legal limits on the government's ability to monitor millions of phone calls and e-mail messages going in and out of the United States.
"They also said that the new law for the first time provided a legal framework for much of the surveillance without warrants that was being conducted in secret by the National Security Agency and outside the Foreign Intelligence Surveillance Act, the 1978 law that is supposed to regulate the way the government can listen to the private communications of American citizens. . . .
"The law also gave the administration greater power to force telecommunications companies to cooperate with such spying operations. The companies can now be compelled to cooperate by orders from the attorney general and the director of national intelligence."
Charlie Savage writes in the Boston Globe that the new law doesn't even limit such surveillance to suspected terrorists: "Instead, it allows executive-branch agencies to conduct oversight-free surveillance of all international calls and e-mails, including those with Americans on the line, with the sole requirement that the intelligence-gathering is 'directed at a person reasonably believed to be located outside the United States.' . . .
"Legal specialists who have criticized the expansion of executive power during Bush's tenure compared the law to the Military Commissions Act of 2006, which expanded the White House's power over detainees in the war on terrorism, and the Iraq war authorization in 2002.
"Both times, Bush abruptly urged Congress to give him greater national security powers shortly before lawmakers went on recess, warning that there was no time to wait. That strategy was echoed in the White House's sudden rush to enact the Protect America Act last week."
Walter Pincus writes in The Washington Post that the law "gives Director of National Intelligence Mike McConnell and Attorney General Alberto R. Gonzales responsibility for creating the broad procedures determining whose telephone calls and e-mails are collected. It also gives McConnell and Gonzales the role of assessing compliance with those procedures."
Yes, that's right: Oversight will be in the hands of the same officials who carry the program out.Attack on the Media
Eric Lichtblau writes in the New York Times: "The White House maintained Monday that the surveillance measure signed into law by President Bush over the weekend did not give the government any sweeping new powers to eavesdrop on Americans without court warrants.
"The chief concern of the White House centered on an assertion by Democrats, civil rights advocates and news organizations that the legislation in effect gave legal authorization to the National Security Agency's once-secret wiretapping program. That program, approved by Mr. Bush soon after the Sept. 11 attacks, permitted the agency to eavesdrop without a court warrant on Americans' international e-mail messages and telephone calls, an operation that provoked intense debate about its legality.
"The new measure, signed into law by the president on Sunday, allows intelligence officials to eavesdrop without a warrant on international phone calls or e-mail messages to or from an American inside the United States, but only if they conclude that the 'target' is outside this country. The legislation gives broad discretion to the attorney general and the director of national intelligence, rather than a judge, in deciding how those complicated surveillance decisions are made.
"Critics of the measure, which expires in six months, maintain that whether or not an American on United States soil is considered the 'target' of an eavesdropping operation, the effect is the same: an end run around constitutional rights. But administration officials heatedly disputed that interpretation."
The White House went so far yesterday as to issue a statement in which spokesman Tony Fratto criticized Risen's front-page story from Monday as "highly misleading": "Revolutionary changes in technology have occurred since FISA was enacted in 1978, and those changes have resulted in FISA -- contrary to the intent of Congress in 1978 -- often requiring the government to get a court order to collect information on foreign terrorists and other foreign targets located overseas," Fratto wrote. "The new law makes clear that a court order is not required to conduct surveillance of foreign intelligence targets located overseas.
"But under FISA, court approval is required for the government to target an individual located in the United States, and nothing in the new law changes that."
White House spokeswoman Dana Perino went even further, in an appearance on Fox News: "Now, remember, this is a bare minimum of what Mike McConnell, the DNI, said he needed," she said. "And I see today that some people are saying that this is a wild expansion of powers for the president. That could not be further from the truth. Only in a Democratic spin room could they come up with expansion of powers when you have to -- when what we actually did was return the law to its original intent, which was you don't need a warrant to go after foreigners you reasonably believe to be overseas."
Greg Miller writes in the Los Angeles Times: "In a public relations push to counter criticism of the new law, senior administration officials cited a combination of legal barriers and resource restrictions that they said would keep the government from sifting through e-mails and phone calls of Americans without obtaining court warrants first.
"But officials declined to provide details about how the new capabilities might be used by the National Security Agency and other spy services. And in many cases, they could point only to internal monitoring mechanisms to prevent abuse of the new rules that appear to give the government greater authority to tap into the traffic flowing across U.S. telecommunications networks. . . .
"[I]ntelligence experts said there were an array of provisions in the new legislation that appeared to make it possible for the government to engage in intelligence-collection activities that the Bush administration officials were discounting.
"'They are trying to shift the terms of the debate to their intentions and away from the meaning of the new law,' said Steven Aftergood, an intelligence policy analyst at the Federation of American Scientists.
"'The new law gives them authority to do far more than simply surveil foreign communications abroad,' he said. 'It expands the surveillance program beyond terrorism to encompass foreign intelligence. It permits the monitoring of communications of a U.S. person as long as he or she is not the primary target. And it effectively removes judicial supervision of the surveillance process.'"
Katherine Shrader writes for the Associated Press that despite the White House statements, "the law's wording -- underscored by conversations with administration officials -- shows the rules governing when and how Americans' calls and e-mails will be monitored have changed significantly."
And Shrader spots a "little-noticed provision of the bill. While the law expires in February unless Congress acts to extend it, any surveillance orders that are in place when it sunsets can last up to a full year."Meanwhile...
Michael Isikoff writes for Newsweek that "a team of FBI agents, armed with a classified search warrant, raided the suburban Washington home of a former Justice Department lawyer," apparently as part of a "criminal probe into who leaked details of the warrantless eavesdropping program to the news media. The raid appears to be the first significant development in the probe since The New York Times reported in December 2005 that Bush had authorized the National Security Agency to eavesdrop on the international phone calls and e-mails of U.S. residents without court warrants."Opinion Watch
The Washington Post editorial board wrote on Monday: "The Democratic-led Congress, more concerned with protecting its political backside than with safeguarding the privacy of American citizens, left town early yesterday after caving in to administration demands that it allow warrantless surveillance of the phone calls and e-mails of American citizens, with scant judicial supervision and no reporting to Congress about how many communications are being intercepted. To call this legislation ill-considered is to give it too much credit: It was scarcely considered at all. Instead, it was strong-armed through both chambers by an administration that seized the opportunity to write its warrantless wiretapping program into law -- or, more precisely, to write it out from under any real legal restrictions. . . .
"The government will now be free to intercept any communications believed to be from outside the United States (including from Americans overseas) that involve 'foreign intelligence' -- not just terrorism. It will be able to monitor phone calls and e-mails of U.S. citizens or residents without warrants -- unless the subject is the 'primary target' of the surveillance. Instead of having the Foreign Intelligence Surveillance Act court ensure that surveillance is being done properly, with monitoring of Americans minimized, that job would be up to the attorney general and the director of national intelligence. The court's role is reduced to that of rubber stamp."
The New York Times editorial board writes: "It was appalling to watch over the last few days as Congress -- now led by Democrats -- caved in to yet another unnecessary and dangerous expansion of President Bush's powers, this time to spy on Americans in violation of basic constitutional rights. . . .
"Republicans marched in mindless lockstep with the president. There was double-dealing by the White House. The director of national intelligence, Mike McConnell, crossed the line from being a steward of this nation's security to acting as a White House political operative.
"But mostly, the spectacle left us wondering what the Democrats -- especially their feckless Senate leaders -- plan to do with their majority in Congress if they are too scared of Republican campaign ads to use it to protect the Constitution and restrain an out-of-control president."
The Los Angeles Times editorial board writes: "That this flawed legislation was approved by a Democratic Congress is a reminder that many in the party are still fearful that they will be labeled 'soft on terror' if they don't give this administration what it wants when it wants it. But the party may be equally injured by the perception that it won't stand up for what it believes."
The USA Today editorial board writes: "Left on the books long enough, this is not just an invitation to abuse; history suggests it is a guarantee."
Eugene Robinson writes in his Washington Post opinion column: "People with a tendency to imagine that they are constantly being watched now have evidence to support their delusions."
Salon blogger Glenn Greenwald writes: "It is staggering, and truly disgusting, that even in August, 2007 -- almost six years removed from the 9/11 attacks and with the Bush presidency cemented as one of the weakest and most despised in American history -- that George W. Bush can 'demand' that the Congress jump and re-write legislation at his will, vesting in him still greater surveillance power, by warning them, based solely on his say-so, that if they fail to comply with his demands, the next Terrorist attack will be their fault. And they jump and scamper and comply."
Legal blogger Jack Balkin writes that "the new bill shows that the Republican Party can get the Democrats to surrender almost any civil liberty -- indeed, to give the President just as much unchecked power as he might obtain under a Republican controlled Congress -- simply by playing the fear card repeatedly and without shame."Those 'Alleged' Patriots
Bush concluded his remarks upon signing the legislation with this admonition: "When Congress returns in September the Intelligence committees and leaders in both parties will need to complete work on the comprehensive reforms requested by Director McConnell, including the important issue of providing meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001."
Alleged assistance? Blogger Balkin explains: "Apparently 'allegedly helped us stay safe' is Bush Administration code for telecom companies and government officials who participated in a conspiracy to perform illegal surveillance. Because what they did is illegal, we do not admit that they actually did it, we only say that they are alleged to have done it."Cheney Watch
Vice President Cheney was in Albuquerque yesterday, talking to a military audience: "We're pleased that Congress, this past weekend, approved legislation to give intelligence professionals the tools and the authority they need to operate for the next six months," he said. "But Congress needs to complete the task on a permanent basis before the end of the year. We must and we will keep this commitment for the clearest and simplest of reasons: It's our duty."
As for Iraq, Cheney said: "Iraq's relevance to the war on terror simply could not be more plain. And here at home, that makes one thing, above all, very clear: If you support the war on terror, then you ought to support it where the terrorists are fighting us."Bush, Karzai and Iran
Sheryl Gay Stolberg writes in the New York Times: "President Bush and President Hamid Karzai of Afghanistan, close allies in fighting terrorism, found much to agree on as they completed a two-day meeting here on Monday, with one major exception: the role of Iran in Afghanistan.
"Mr. Karzai characterized Iran as 'a helper' in a CNN interview broadcast Sunday. But when the two men greeted reporters here on Monday, Mr. Bush pointedly disagreed, saying, 'I would be very cautious about whether the Iranian influence in Afghanistan is a positive force.'
"Iran has sent workers to Afghanistan to provide aid to villages, but American officials contend that Tehran is also funneling weapons into the country. Mr. Bush has long viewed Iran as a state sponsor of terrorism, and is deeply suspicious of its nuclear ambitions, a view he reiterated Monday even as he said he was 'willing to listen' to Mr. Karzai's position."
Here's the transcript of the short press availability.
Olivier Knox of AFP catches Bush in a misstatement: "US President George W. Bush charged Monday that Iran has openly declared that it seeks nuclear weapons -- an inaccurate accusation at a time of sharp tensions between Washington and Tehran.
"'It's up to Iran to prove to the world that they're a stabilizing force as opposed to a destabilizing force. After all, this is a government that has proclaimed its desire to build a nuclear weapon,' he said during a joint press conference with Afghan President Hamid Karzai.
"But Iran has repeatedly said that its nuclear program, which is widely believed in the West to be cover for an effort to develop atomic weapons, is for civilian purposes."
So did the White House retract the statement once reporters inquired about it? No.
"Asked to provide examples of Tehran openly declaring that it seeks atomic weapons, White House officials contacted by AFP said that Bush was referring to Iran's defiance of international calls to freeze sensitive nuclear work. . . .
"'After keeping their nuclear program secret for a decade, the Iranian government has refused the offers of the international community to provide nuclear energy and continues to flout the inspectors of the IAEA,' said national security spokesman Gordon Johndroe.
"'Unfortunately, their intentions seem clear,' Johndroe said."
Maura Reynolds writes in the Los Angeles Times: "President Bush declined to say Monday whether the United States would seek permission from Pakistani President Pervez Musharraf before attacking top Al Qaeda leaders if intelligence indicated they were hiding in Pakistan."
Peter Baker writes in The Washington Post: "Democrats used Karzai's visit to lambaste Bush's record. 'Despite reassuring words from the White House, it is undeniable the president has dropped the ball on the real front in the war on terror -- Afghanistan,' said Senate Majority Leader Harry M. Reid (D-Nev.). 'Osama bin Laden remains at large, attacks are on the rise, poppy crops, which are used to finance Taliban operations, are at record levels, and al-Qaeda is regrouping on the Afghanistan-Pakistan border.'"Torture Watch
Dahlia Lithwick writes for Slate: "There are two ways to think about the Bush administration's willingness to torture prisoners in the wake of 9/11. One is the story we were sold after we learned about Abu Ghraib: A few 'bad apples' at the lowest levels of the military went a little crazy and tortured some prisoners on their own initiative, for which (some) were duly punished. The second is confirmed in a new and devastating piece of investigating by The New Yorker's Jane Mayer: A systematic and rigorous program of highly abusive interrogation was approved at the highest levels of government at so-called 'black sites' around the world. This second version of the national torture story reveals not so much the bad apples as a profoundly diseased tree."
Here is Mayer's New Yorker piece. She writes "The C.I.A.'s interrogation program is remarkable for its mechanistic aura. 'It's one of the most sophisticated, refined programs of torture ever,' an outside expert familiar with the protocol said. 'At every stage, there was a rigid attention to detail. Procedure was adhered to almost to the letter. There was top-down quality control, and such a set routine that you get to the point where you know what each detainee is going to say, because you've heard it before. It was almost automated. People were utterly dehumanized. People fell apart. It was the intentional and systematic infliction of great suffering masquerading as a legal process. It is just chilling.'"
Go read it.
Josh White, Julie Tate and Joby Warrick write in The Washington Post about a secret report from the International Committee of the Red Cross about the CIA sites that Mayer describes, in which the treatment of prisoners is called "tantamount to torture."
"The ICRC report, which was given to CIA Director Gen. Michael V. Hayden and has had limited distribution within the administration's highest ranks, details interviews with the 14 detainees and assesses the CIA program," The Post reporters write. "Sources familiar with the document have told The Washington Post that the report shows amazing similarities in terms of how the detainees were treated even though they were kept isolated from one another.
"Sources also have told The Post that the detainees almost universally told the ICRC that they made up stories to get the harsh interrogations to stop, possibly leading U.S. officials astray with bad intelligence."Gonzales (Non) Death Watch
Peter Wallsten and Richard B. Schmitt write in the Los Angeles Times: "Democrats are not winning the battle to force Atty. Gen. Alberto R. Gonzales from office, stymied by a legal system that gives the Bush administration wide discretion to block investigations of itself. And they are not getting the White House witnesses or records they have demanded in recent weeks.
"But many Democrats are fine with that.
"Although they may prove fruitless, the Democrats' investigative efforts may help keep President Bush and his administration the center of attention in next year's elections, even as the Republican Party chooses a new standard-bearer and tries to move on."Censure Watch
Fox News reports: "The White House responded to two censure resolutions on Monday. . . .
"'We understand that some Democrats in Congress don't support the president's plans to keep the country safe and prosperous. At the same time, we welcome the opportunity to work with members on important legislation to fund our troops who are in harm's way, make us less reliant on foreign sources of energy, to make health care more affordable, and extend tax relief to America's families and businesses,' spokesman Scott Stanzel told FOX News."
Over the weekend, Sen. Russ Feingold, D-Wis., and Rep. Maurice Hinchey, D-N.Y., introduced two censure resolutions. Feingold explains them on his Web site.Impeachment (Non) Watch
Michael Tomasky writes in a Washington Post opinion piece: "There's little disagreement among liberals about the substance. If any administration since President Richard M. Nixon's has committed high crimes and misdemeanors, surely it's this one."
But, he writes: "Impeachment is not merely a bad idea, but the single worst course of action that Democrats could possibly undertake -- the only thing they could do that might, in one stroke, convert Bush from the figure of contempt and mockery he is now into one of vague sympathy."Novak Watch
Columnist Robert M. Novak, via Think Progress: "I don't support this administration. The president's cut me off the list of conservative columnists that are invited there. They consider me a lot of trouble."Rove's Addiction