The House Strikes Back

By Dan Froomkin
Special to washingtonpost.com
Friday, February 15, 2008; 2:02 PM

After years of going belly-up before President Bush, particularly on matters of national security, Democrats in one chamber of Congress yesterday apparently decided they'd had about enough.

Defiantly rejecting what they called Bush's fear mongering, House Democrats refused to vote on a broad surveillance law their Senate colleagues had sent them the day before.

And, for good measure, they voted to hold Bush's chief of staff and former counsel in contempt.

The FISA Rebellion

Carl Hulse writes in the New York Times: "The House broke for a week's recess Thursday without renewing terrorist surveillance authority demanded by President Bush, leading him to warn of risky intelligence gaps while Democrats accused him of reckless fear mongering. . . .

"The decision by the House Democratic leadership to let the law lapse is the greatest challenge to Mr. Bush on a major national security issue since the Democrats took control of Congress last year.

"Last summer, Democrats allowed the surveillance law to be put in place for six months although many of them opposed it. They have also relented in fights over spending on the Iraq war under White House pressure. But with Mr. Bush rated low in public opinion polls as he enters the last months of his presidency, Democrats are showing more willingness to challenge him."

Dan Eggen and Michael Abramowitz write in The Washington Post: "The episode was a rare uprising by Democrats against the White House on a terrorism issue, and it inspired caterwauling on both sides about the dire ramifications of the standoff.

"Republicans said Democrats were putting the nation at risk, while President Bush offered to delay his scheduled departure for Africa today to reach a deal. Democrats responded with charges of administration recklessness and fearmongering. . . .

"Without the law, administration officials said yesterday in interviews and statements, the monitoring of terrorist groups overseas will be severely hampered. Telecom firms may also become reluctant to help the National Security Agency and other U.S. intelligence agencies conduct surveillance, officials said."

Indeed, at the White House yesterday, Bush warned that if the House didn't act, "our ability to find out who the terrorists are talking to, what they are saying, and what they are planning will be compromised."

But Eggen and Abramowitz write: "Democrats immediately said that the expiration of the temporary law would have little, if any, immediate impact on intelligence gathering. 'He has nothing to offer but fear,' House Speaker Nancy Pelosi (D-Calif.) told reporters after Bush's address. . . .

"The acrimony reflects the long-simmering anger among some Democratic lawmakers and their liberal allies over their inability to thwart Bush on Iraq policy and terrorism issues since the Democrats took control of Congress last year after the 2006 elections. It also indicates a new willingness to risk election-year attacks by Republicans who say that Democrats are unfit to protect the country. . . .

"Several Democrats said yesterday that many in their party wish to take a more measured approach to terrorism issues, and they refused to be stampeded by Bush. 'We have seen what happens when the president uses fearmongering to stampede Congress into making bad decisions,' said Rep. Chris Van Hollen (D-Md.). 'That's why we went to war in Iraq.'

"White House officials and their allies were angry that the Democrats did not 'blink,' as one outside adviser said."

The back and forth between the Hill and the White House yesterday was bitter.

Here, for instance, is a letter to Bush from Silvestre Reyes, the chairman of the House Permanent Select Committee on Intelligence: "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. . . .

"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."

Senate Majority Leader Harry Reid wrote to Bush: "I regret your reckless attempt to manufacture a crisis over the reauthorization of foreign surveillance laws. . . . Your suggestion that the law's expiration would prevent intelligence agents from listening to the conversations of terrorists is utterly false."

White House press secretary Dana Perino responded with this statement: "Senator Reid is wrong and irresponsibly misleading to say that we will be just as safe if the PAA expires as we are with the PAA in effect. . . .

"The terrorist threats to our nation are very real and grave, and inaction by the House in the face of these risks is unacceptable.

"Democrat (sic) leaders know that if they put the Senate bill on the House floor today, it would pass with bipartisan support. Make no mistake -- letting the PAA expire without replacing it with the bipartisan Senate bill results in greater risk to our national security, and it is irresponsible and false for Democrats to suggest otherwise."

Here's more from Perino on Fox News yesterday: "The House Democrats are basically doing the bidding of the trial lawyers, who are licking their chops, hoping that they could get a piece of a big class-action lawsuit against these telecommunications companies, which did their patriotic duty to help America in the immediacy following 9/11 when we weren't sure if there would be another attack."

Bush came out again this morning with his rhetoric blazing: "[B]y blocking this piece of legislation our country is more in danger of an attack. By not giving the professionals the tools they need, it's going to be a lot harder to do the job we need to be able to defend America," he said.

"[T]he House leaders must understand that the decision they made to block good legislation has made it harder for us to protect you."

And intelligence director Mike McConnell writes in a Washington Post op-ed: "Some have claimed that expiration of the Protect America Act would not significantly affect our operations. Such claims are not supported by the facts. We are already losing capability due to the failure to address liability protection. . . . Without long-term legislation that includes liability protection, we will be delayed in gathering -- or may simply miss -- intelligence needed to protect the nation."

The Effects

Neither side is being entirely candid about the effects of letting the law lapse. Bush has provided absolutely no evidence to back up his claim that it would significantly increase the danger of terrorism. But it could have an impact in some very specific -- if at this point hypothetical -- circumstances.

Hulse writes in the Times: "Surveillance efforts will not cease when the law lapses. Administration intelligence officials said agencies would be able to continue eavesdropping on targets that have already been approved for a year after the initial authorization. But they said any new targets would have to go through the more burdensome standards in place before last August, which would require that they establish probable cause that an international target is connected to a terrorist group."

Pamela Hess writes for the Associated Press that McConnell's position is that "[i]t is difficult for intelligence agents piecing together shreds of information to get enough to merit probable cause. . . . By the time they can amass enough information to do that, the phone number they wanted to track might already be obsolete, McConnell said."

So, in the case that the NSA finds "shreds of information" indicating that previously unknown targets are using communications that that pass through the U.S. on wires belonging to a provider with which the government doesn't already have an agreement -- and if those subjects aren't actually behaving suspiciously enough to constitute probable cause -- then there might be a holdup.

Ben Powell's World

In a conference call with reporters yesterday, Ben Powell, general counsel for the Office of the Director of National Intelligence, made all sorts of dramatic assertions about the Protect America Act -- none of which he was able to actually back up with concrete examples.

"Since the enactment of the Protect America Act, we've obtained critical information," he said, according to a Federal News Service transcript (subscription required). "Some examples of that information include insight and understanding leading to disruption of planned terrorist attacks, efforts by terrorists to obtain guns and ammunition, efforts of an individual to become a suicide operative, terrorist facilitator plans to travel to Europe, information on terrorist money transfers, identifying information regarding foreign terrorist operatives, and plans for future terrorist attacks."

Holy moly! Is that for real? Powell even insisted that "in some of the examples I just provided to you, we would not have been able to obtain FISA court orders because FISA sets a probable cause standard."

Powell also addressed the issue of how retroactive liability protection for the telecoms would affect their behavior going forward.

This puzzles me. While retroactive liability for what may well have been illegal acts would certainly be a boon to the telecoms -- and would help keep the public in the dark about what the government asked them to do, as well -- on what grounds could it affect their cooperation going forward? The whole point of surveillance law -- the old one or the new one -- is to clearly define what the government can and can't demand from the telecoms. And when the government presents a telecom with a warrant or a lawful order, there shouldn't be any problem at all in having it enforced, should there?

And yet Powell suggested there might be.

Q: "[A]re you saying that there are carriers that have told you that they will no longer cooperate unless liability is included in the legislation?"

Powell: "Yeah."

But, once again, Powell wouldn't back up his assertion with verifiable examples. "I don't want to get that specific and verge on getting into classified material. But the answer is that beyond just this program, for two years, we've been saying that we are having problems getting cooperation from the private sector, not just on this program, because of this issue. . . .

"[P]rivate sector parties have said that unless we address this issue and the retroactive liability protection, it raises substantial questions about their cooperation with our operations, and have also said that there's an increasing reluctance, or an outright refusal, to willingly cooperate with us in some critical areas."

But on what grounds could the telecoms refuse lawful orders going forward? It sounds a bit like extortion to me. Unless they aren't really lawful orders. In which case it's in the public interest for them to refuse.

Q: "So what do you expect to happen, come February 16th, if AT&T or one of the other carriers does not have liability protection? Do you expect them to simply opt out and say, okay, come after me?"

Powell: "Okay. I'm not going to talk about any specific company or speculate about any specific company. . . ."

Q: "But can you give us an example of what you're not getting right now from the private sector because of the lack of retroactive immunity? . . . Are there examples of what -- of the cooperation you're not receiving now that's making your job much more difficult?"

Powell: "Yes, there are examples, and the director would not be happy with me, I think, if I alerted folks to what we are not getting."

Opinion Watch

Keith Olbermann on MSNBC last night: "You are a liar, Mr. Bush, and after showing some skill at it, you have ceased to even be a very good liar. . . .

"We will not fear any longer. We will not fear the international terrorists, and we will thwart them. We will not fear the recognition of the manipulation of our yearning for safety, and we will call it what it is: terrorism. We will not fear identifying the vulgar hypocrites in our government, and we will name them. And we will not fear George W. Bush. Nor will we fear because George W. Bush wants us to fear."


Paul Kane writes in The Washington Post: "The House yesterday escalated a constitutional showdown with President Bush, approving the first-ever contempt of Congress citations against West Wing aides and reigniting last year's battle over the scope of executive privilege.

"On a 223 to 32 vote, the House approved contempt citations against White House Chief of Staff Joshua B. Bolten and former White House counsel Harriet E. Miers over their refusal to cooperate with an investigation into the mass firings of U.S. attorneys and allegations that administration officials sought to politicize the Justice Department.

"The vote came after a morning of tense partisan bickering over parliamentary rules, including a GOP call for a vote on a motion to close the chamber that briefly forced lawmakers to leave a memorial service for Rep. Tom Lantos (D-Calif.), who died this week. The conflict was capped later in the day when most House Republicans walked off the floor and refused to cast a final vote. They accused Democrats of forcing a partisan vote on the contempt citations instead of approving a surveillance bill supported by Bush.

"Democrats said they were left with no choice but to engage in a legal showdown with Bush because he has refused for nearly a year to allow any current or former West Wing staff member to testify in the inquiry. Citing executive privilege, the president has offered their testimony on the condition that it is taken without transcripts and not under oath."

Richard B. Schmitt writes in the Los Angeles Times: "Democrats accused Republicans of pulling a political stunt. They said the contempt question was hardly a partisan issue because it concerned the system of checks and balances under the Constitution. Choosing not to enforce the subpoenas would be giving 'tacit consent to the dangerous idea of an imperial presidency, above the law,' said House Majority Leader Steny H. Hoyer (D-Md.) . . .

"Under the law, contempt of Congress charges are investigated by the U.S. attorney for the District of Columbia. But the Justice Department has taken the position in previous cases that it will not allow a U.S. attorney to conduct such an investigation if the department has determined that executive privilege was well-founded."

But: "Under the resolution, even if the Justice Department declines to investigate, the House can file its own civil lawsuit against Miers and Bolten. Such a suit would be filed in federal court in Washington by the general counsel of the House. It could come at any time and would not depend on the approval of the Justice Department."

Here's the angry response from Perino: "Today, the United States House of Representatives did something that had never been done in the entire 150-year history of the contempt of Congress statute: it voted to hold in contempt two top White House officials who had been directed by the President not to comply with House Judiciary Committee subpoenas on the basis of the President's assertion of Executive Privilege. The officials in question are the Chief of Staff to the President and the former Counsel to the President, two of the very closest advisers upon whom a President must rely. This action is unprecedented, and it is outrageous. It is also an incredible waste of time -- time the House should spend doing the American people's legislative business. . . .

"This is as a blatant sop to the far left and shameful behavior by House Democrats."

Torture Watch

In an interview with Matt Frei of the BBC yesterday, Bush once again indulged in rhetorical chicanery about torture. Here's the transcript.

"To the critics, I ask them this: when we, within the law, interrogate and get information that protects ourselves and possibly others in other nations to prevent attacks, which attack would they have hoped that we wouldn't have prevented?" Bush said.

But what attacks have been prevented by the tactics in question? He's never said.

Then, rather than address the concerns of his critics, he once again mischaracterized the source of their disagreement: "Now, I recognise some say that these terrorists really aren't that big a threat to the United States any more. I fully disagree. . . .

"America is going to respect law. But, it's gonna take actions necessary to protect ourselves and find information that may protect others. Unless, of course, people say, 'Well, there's no threat. They're just making up the threat. These people aren't problematic.' But, I don't see how you can say that in Great Britain after people came and, you know, blew up bombs in subways. I suspect the families of those victims are - understand the nature of killers."

Here's how Ewen MacAskill of the Guardian summed that up: "President George Bush cited the London July 7 bombings in an interview broadcast last night to justify his support for waterboarding, an interrogation technique widely regarded as torture."

One more exchange from the interview:

Frei: "Can you honestly say, Mr President, that today America still occupies the moral high ground?"

Bush: "Absolutely - absolutely. We believe in human rights and human dignity. We believe in the human condition. We believe in freedom. And we're willing to take the lead."

Bradbury's Testimony

Laurie Kellman writes for the Associated Press: "A senior Justice Department official told Congress on Thursday that laws and other limits enacted since three terrorism suspects were waterboarded have eliminated the technique from what is now legally allowed.

"'The program as it is authorized today does not include waterboarding,' Steven G. Bradbury, acting head of the Justice Department's Office of Legal Counsel, told the House subcommittee on the Constitution. 'There has been no determination by the Justice Department that the use of waterboarding under any circumstances would be lawful under current law.'"

This wasn't the straightforward statement about how waterboarding is now illegal that some had expected. All he really said was that there hasn't been a determination one way or the other. And it gets worse.

Paul Kiel of TPM Muckraker has chilling video excerpts from Bradbury's testimony, in which he essentially defended the CIA's use of waterboarding "because it was a 'procedure subject to strict limitations and safeguards' that made it substantially different from historical uses of the technique by the Japanese and the Spanish Inquisition."

For instance: "The Japanese forced the ingestion of so much water that it was 'beyond the capacity of the victim's stomach.' Weight or pressure was then applied by standing or jumping on the stomach of the victim, sometimes leading to 'blood coming of the victim's mouth.' The Spanish Inquisition would use the technique to the point of 'agony or death.'

"But the CIA wasn't doing that, [Bradbury] argued. 'Strict time limits' were involved -- presumably governing the length of time that interrogators could induce the sensation of drowning. There were 'safeguards' and 'restrictions' that made it a much more controlled procedure. Because of that, he said, the technique did not amount to torture."

Georgetown Law Professor and blogger Marty Lederman responds with outrage: "Bradbury later confirmed (see the video at 36:20-37:00) what I've often speculated here: OLC's view is that a technique is not torture if, 'subject to strict safeguards, limitations and conditions, [it] does not involve severe physical pain or severe physical suffering. . . and something can be quite distressing or comfortable, even frightening, [but] if it doesn't involve severe physical pain, and it doesn't last very long, it may not constitute severe physical suffering. That would be the analysis.'

"Let's be very clear: This so-called 'analysis' is at the very core of the OLC justification for waterboarding, and possibly several other components of the CIA program, as well. And it is flatly, 100% wrong, and indefensible. . . .

"Waterboarding, even the CIA version, entails excruciating and intense physical suffering. That's why they use it. . . .

"To say that this is not severe physical suffering -- is not torture -- is absurd. And to invoke the defense that what the Spanish Inquisition did was worse, that we use a more benign, non-torture form of waterboarding -- after all, we don't stomp on the victim's chest! -- is obscene."

Off to Africa

Sheryl Gay Stolberg writes in the New York Times: "On the eve of a planned trip to Africa, President Bush thrust himself into the role of peacemaker on Thursday, as his plans to promote American efforts against poverty and disease gave way to a more pressing imperative: addressing the violence and turmoil on the continent.

"Mr. Bush injected his administration directly into the political crisis in Kenya, calling for a 'full return to democracy' and announcing that he would send Secretary of State Condoleezza Rice there to 'deliver a message directly to Kenya's leaders.' . . .

"Mr. Bush is scheduled to leave for Africa on Friday evening. The trip will take him to Benin, Tanzania, Rwanda, Ghana and Liberia -- all countries that have benefited from American foreign aid. . . .

"But with Kenya racked by violence over a disputed election, unrest in Chad and a worsening crisis in the Darfur region of Sudan, it had become increasingly clear that Mr. Bush could not take what analysts have dubbed 'a victory lap' in Africa while steering clear of troubles on the continent -- especially in Kenya, where more than 1,000 have died in the recent violence."

Peter Baker writes in The Washington Post: "President Bush vowed yesterday to use a week-long trip to Africa slated to start today to push for peaceful resolutions to conflicts in Kenya and Sudan, but he rebuffed calls to boycott the Summer Olympics in Beijing to pressure China into using its influence to stop the violence in Sudan's Darfur region.

"Bush . . . promised to 'use all our diplomatic resources' to get a full U.N. peacekeeping force deployed to halt what he terms genocide in Darfur.

"But shortly after delivering his speech previewing the five-nation trip, Bush told an interviewer that he saw no reason to use the Olympics to turn up the heat on the Chinese government, which has strong political and trade ties with Sudan. Activists have mounted an international campaign against China for protecting the Khartoum government from stronger U.N. sanctions. Just this week, Hollywood director Steven Spielberg quit as an artistic adviser to the Beijing Olympics in protest."

The main goal of Bush's trip, as Baker writes, is to "highlight his efforts to combat poverty, disease and illiteracy on the continent. Bush in his first term launched a five-year, $15 billion program called the President's Emergency Plan for AIDS Relief, or PEPFAR, that has been widely praised for spreading treatment across Africa. About 1.3 million HIV-positive Africans now receive life-saving medication as a result. Bush also launched programs to increase education and fight malaria."

Edmund Sanders writes in the Los Angeles Times: "Though some have questioned the spending of billions of dollars to fight AIDS abroad or objected to Pepfar's mandatory emphasis on abstinence, the program's delivery of sorely needed AIDS drugs to people who previously had no hope of affording them is so widely supported that it has drawn praise for Bush from such unlikely backers as rock star Bono.

"'This will rank in the top tier of his legacy issues,' said J. Stephen Morrison, executive director of the HIV/AIDS Task Force at Center for Strategic and International Studies, a Washington think tank.

"Since the program's launch, the number of sub-Saharan Africans receiving AIDS drugs skyrocketed from 50,000 to 1.4 million. In Kenya alone, Pepfar is credited with saving more than 57,000 lives."

Rukmini Callimachi writes for the Associated Press that "Bush's focus on the continent, analysts said, stems from the realization that it's no longer just a case of Africa needing America, but of America needing Africa.

"Today, a fifth of U.S. oil imports come from a single African nation -- Nigeria. By the end of the decade, one in five new barrels of oil entering the global market are projected to come from Africa, according to the Council on Foreign Relations.

"The continent's vast, ungoverned spaces have been recognized as one of the new frontiers in the war on terror, with al-Qaida claiming responsibility for attacks in northern Africa and a radical Islamic group with alleged links to the terror organization waging a bloody insurgency in Somalia.

"More than 1,200 U.S troops are stationed in Djibouti, which hosts the base for an anti-terrorism task force in the Horn of Africa. Last year, the Defense Department announced the creation of a unified U.S. military command for the continent."

Hans Nichols and Roger Runningen write for Bloomberg: "The six-day trip will 'call attention to an underestimated foreign policy legacy of the Bush years, which is a tremendous increase in the funding of "soft power," particularly in Africa,' said Michael Gerson, a former Bush speechwriter and a consultant to him on Africa issues. 'When the Bush library is built, this will be a significant portion of what he wants there.'"

And yet: "Missing from the itinerary are nations where Bush and the U.S. haven't been able to have as much of a positive impact. . . .

"'He's devoted more attention to Africa than previous presidents,' said Joel Barkan, a scholar at the Center for Strategic & International Studies in Washington. Yet he has shown an 'inability to move on any international solution on Darfur and a slackening of support for democratization on Africa.' . .

"Even critics praise Bush's work on AIDS. 'He's accomplished one thing, which is the scaling up access to AIDS treatment' and that has 'made a big difference,' said Jeffrey Sachs, a professor at Columbia University in New York and an adviser to United Nations Secretary General Ban Ki-moon. 'Everything else about Africa, we've done nothing.'"

Chris McGreal writes in the Guardian: "They may not be George Bush's natural constituency but Rwanda's prostitutes have good things to say about him. So do poor South Africans abandoned by their quixotic government, and doctors across Africa who otherwise regard the American president as a walking crime against humanity."

In yesterday's BBC interview, Bush portrays himself as quite the humble humanitarian: "I hope by now people have learned that I'm not one of these guys that - really gives a darn about elite opinion. What I really care about is, are we saving lives? And in this case, we are.. . . ."

Frei: "But, it has made a huge difference, hasn't it? So. . . ."

Bush: "Yeah."

Frei: "Why not take some credit for it?"

Bush: "Because it's just not my nature, you know? You just gotta understand about me, I'm more interested in seeing results and sharing the credit with the American people. I mean, this is not a George Bush effort. I just happened to be the leader of a nation that's willing to fund this kind of money."

Frei's Private Chat

Frei writes: "George W Bush may be one of the most controversial and unpopular presidents in history, but judging by his relaxed, reflective demeanour today, you wouldn't know it."

In addition to the 15-minute interview, Bush and Frei had "a private chat that lasted even longer. . . .

"George Bush and I were walking along the red carpet down the corridor towards the West Wing when the president suddenly stopped before the portrait of his mother, the former First Lady Barbara Bush.

"It is a stern depiction of the Bush family matriarch, who has ruled her family with a velvet fist for so many decades.

"The president bowed deeply before the portrait of his mother, saying: 'Matt, this is the shrine!'

"We then went on to survey the state of the world - from China to Africa to the Middle East to the presidential campaign here at home in the US.

"And although I cannot tell you - because this was a private conversation - what he said in detail, I can tell you that for a man who has only 48 weeks in office, he still has a very ambitious agenda.

"In fact, Mr Bush seems blissfully undaunted by his abysmal opinion poll ratings at home and abroad.

"He feels uncowed by the oceanic gulf between his rhetoric about unity and such and the rather vexing reality on the ground."

Cartoon Watch

David Horsey on what's sacred to Bush; Bruce Beattie on Bush's gift to McCain; Signe Wilkinson on Bush's performance; Rob Rogers on immunity; and Pat Oliphant guesses wrong.

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