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Imbalance of Power?

By Dan Froomkin
Special to washingtonpost.com
Monday, December 19, 2005; 12:00 PM

President Bush's acknowledgment that he unilaterally approved domestic spying is the latest piece of evidence supporting complaints that his White House operates essentially unchecked by the legislative and judicial branches.

Scott Shane writes in the New York Times: "A single, fiercely debated legal principle lies behind nearly every major initiative in the Bush administration's war on terror, scholars say: the sweeping assertion of the powers of the presidency. . . .

"With the strong support of Vice President Dick Cheney, legal theorists in the White House and Justice Department have argued that previous presidents unjustifiably gave up some of the legitimate power of their office. The attacks of Sept. 11, 2001, made it especially critical that the full power of the executive be restored and exercised, they said. . . .

"But some legal experts outside the administration, including some who served previously in the intelligence agencies, said the administration had pushed the presidential-powers argument beyond what was legally justified or prudent. They say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush's assertion of his powers.

" 'Obviously we have to do things differently because of the terrorist threat,' said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the Central Intelligence Agency, who served under both Republican and Democratic administrations. 'But to do it without the participation of the Congress and the courts is unwise in the extreme.' "

Barton Gellman and Dafna Linzer write in Sunday's Washington Post: "In his four-year campaign against al Qaeda, President Bush has turned the U.S. national security apparatus inward to secretly collect information on American citizens on a scale unmatched since the intelligence reforms of the 1970s.

"The president's emphatic defense yesterday of warrantless eavesdropping on U.S. citizens and residents marked the third time in as many months that the White House has been obliged to defend a departure from previous restraints on domestic surveillance. In each case, the Bush administration concealed the program's dimensions or existence from the public and from most members of Congress. . . .

"Bush's constitutional argument, in the eyes of some legal scholars and previous White House advisers, relies on extraordinary claims of presidential war-making power. Bush said yesterday that the lawfulness of his directives was affirmed by the attorney general and White House counsel, a list that omitted the legislative and judicial branches of government. On occasion the Bush administration has explicitly rejected the authority of courts and Congress to impose boundaries on the power of the commander in chief, describing the president's war-making powers in legal briefs as 'plenary' -- a term defined as 'full,' 'complete,' and 'absolute.' "

Gellman and Linzer write that Congress in the 1970s passed the Foreign Intelligence Surveillance Act, which expressly made it a crime for government officials "acting under color of law" to engage in electronic eavesdropping "other than pursuant to statute."

But the Bush administration has argued that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

And Gellman and Linzer write: "Other Bush administration legal arguments have said the 'war on terror' is global and indefinite in scope, effectively removing traditional limits of wartime authority to the times and places of imminent or actual battle."

Democratic Senator Russell Feingold said Saturday in a statement : "The President believes that he has the power to override the laws that Congress has passed. This is not how our democratic system of government works. The President does not get to pick and choose which laws he wants to follow. He is a president, not a king."

The NSA Story

Here is the text of Bush's live radio address on Saturday.

Peter Baker wrote in The Sunday Washington Post: "President Bush said yesterday that he secretly ordered the National Security Agency to eavesdrop on Americans with suspected ties to terrorists because it was 'critical to saving American lives' and 'consistent with U.S. law and the Constitution.' . . .

"Advisers said Bush decided to confirm the program's existence -- and combine that with a demand for reauthorization of the Patriot Act -- to put critics on the defensive by framing it as a matter of national security, not civil liberties. . . .

"Congressional Democrats and some Republicans have expressed outrage at the NSA program, saying it contradicts long-standing restrictions on domestic spying and subverts constitutional guarantees against unwarranted invasions of privacy. . . .

"Bush justified his order on his presidential powers as commander in chief as well as his interpretation of the congressional resolution authorizing him to use force in response to the Sept. 11 attacks, passed days after the World Trade Center and the Pentagon were hit. But Bush did not explain his constitutional thinking, nor how the 2001 resolution gave him the authority to order domestic spying. He took no questions, and aides would not discuss the legal issues surrounding the program."

David E. Sanger wrote in the Sunday New York Times: "In his statement on Saturday, Mr. Bush did not address the main question directed at him by some members of Congress on Friday: why he felt it necessary to circumvent the system established under current law, which allows the president to seek emergency warrants, in secret, from the court that oversees intelligence operations. His critics said that under that law, the administration could have obtained the same information."

Will Congress Reassert Itself?

Dana Milbank wrote in the Sunday Washington Post: "After a series of embarrassing disclosures, Congress is reconsidering its relatively lenient oversight of the Bush administration.

"Lawmakers have been caught by surprise by several recent reports, including the existence of secret U.S. prisons abroad, the CIA's detention overseas of innocent foreign nationals, and, last week, the discovery that the military has been engaged in domestic spying. After five years in which the GOP-controlled House and Senate undertook few investigations into the administration's activities, the legislative branch has begun to complain about being in the dark. . . .

"In an interview last week, Rep. Thomas M. Davis III (R-Va.), chairman of the House Government Reform Committee, said 'it's a fair comment' that the GOP-controlled Congress has done insufficient oversight and 'ought to be' doing more. . . .

"Democrats on the committee said the panel issued 1,052 subpoenas to probe alleged misconduct by the Clinton administration and the Democratic Party between 1997 and 2002, at a cost of more than $35 million. By contrast, the committee under Davis has issued three subpoenas to the Bush administration. . . .

"Democrats list 14 areas where the GOP majority has 'failed to investigate' the administration, including the role of senior officials in the abuse of detainees; leaking the identity of CIA operative Valerie Plame; the role of Vice President Cheney's office in awarding contracts to Cheney's former employer, Halliburton; the White House's withholding from Congress the cost of a Medicare prescription drug plan; the administration's relationship with Iraqi politician Ahmed Chalabi; and the influence of corporate interests on energy policy, environmental regulation and tobacco policy."

Gail Russell Chaddock writes in the Christian Science Monitor: "From a standoff over the Patriot Act to pushback from Capitol Hill on the treatment of detainees, secret prisons abroad, and government eavesdropping at home, tensions between the Bush White House and the Republican-controlled Congress have never been more exposed."

Andrew Rudalevige , a political science professor at Dickinson College and author of the new book, The New Imperial Presidency: Renewing Presidential Power after Watergate , recently wrote for NiemanWatchdog.org: "The 'imperial presidency' can only be empowered by an 'invisible Congress.' It's time for another Congressional resurgence. . . .

"In our system, strong presidential leadership is essential -- but if unchecked and undebated it can also do damage to the soul of our self-governance. Our government is built on the presumption that (in James Madison's phrase) 'ambition [will] counteract ambition.' But so far Congress's ambition has largely manifested itself in a desire to avoid the blame that can be associated with making difficult decisions."

Rudalevige asks: "After the 9/11 attacks, and again in October 2002, Congress granted the president very broad authorizations to use force -- in the first case, against opponents defined by the president himself. Should legislators revisit these 'blank check' resolutions in the light of additional information about the executive decision-making process that led to the Iraq war?"

Froomkin Watch

The White House gave reporters just over two hours notice this morning that Bush would hold a press conference at 10:30 a.m. ET.

I filed my column today before the press conference began. And (bad timing) I have to take tomorrow off. But I expect to be back on Wednesday.

Last Night's Speech

Here is the text of Bush's prime-time Oval Office speech last night.

The president is getting a lot of credit from journalists this morning for sounding chastened, conciliatory, even humble. Some are writing that he is finally admitting his mistakes and engaging his critics. But a close reading of his speech makes it quite clear that he did neither last night.

During the past two weeks, Bush has been more realistic than before about the obstacles in Iraq.

But when it came to admitting mistakes, Bush acknowledged tactical errors and intelligence failures by others. He didn't take responsibility for the bad intelligence -- just for "the decision to go into Iraq." He was still unwilling to admit he's made any mistakes himself. And in fact he said he has "never been more certain" about the mission in Iraq.

Some of Bush's speech was directed at his critics -- a first. He even voiced one of their major concerns -- that "we are creating more problems than we're solving" -- and called that an "important question." All quite unprecedented.

But Bush then moved right into one of his classic straw-man arguments, attacking those who believe that "the terrorists would become peaceful if only America would stop provoking them." The arguments made by critics are quite different. They argue, for instance, that the occupation is turning ordinary Iraqis into terrorists, is turning Iraq into a training ground for terrorists, and is distracting from the greater war on terror. Bush didn't mention those arguments.

And there is a big difference between speaking to critics from the Oval Office -- and actually hearing and responding to their criticisms in person.

The Analyses

Peter Baker writes in The Washington Post: "As more of the country abandons him on Iraq, Bush has embarked on a campaign to bring the war back into the fold with a more realistic assessment of mistakes and of challenges ahead. Last night's national address from the Oval Office ended a two-week series of speeches by imploring the American people to stand behind him, to swallow their skepticism and take hope from last week's Iraqi election, to believe that a greater good will come from the sacrifice.

"Bush addressed opponents of the war in a far more direct and, at moments, almost conciliatory manner, acknowledging that 'this war is controversial' and saying he has heard those who disagree with him. 'We will continue to listen to honest criticism, and make every change that will help us complete the mission,' he said.

"Yet as he signaled deference to their sincerity, he made clear he saw their approach as disastrous to the nation and he further drew a distinction 'between honest critics who recognize what is wrong and defeatists who refuse to see that anything is right.' And for all of the concessions, Bush signaled he has not changed his core beliefs, however disputed they may be, about the value of the war and its link to the larger campaign against radical Islamic terrorists."

David E. Sanger writes in the New York Times: "Rather than dismissing critics with a wave of the hand and an acid retort, as he often has, he asked those who opposed the invasion to help make the biggest gamble of his presidency work. But he never backed away from his insistence that, with patience, the United States will claim victory, as he has defined it.

" 'There is a difference,' he said with an edge in his voice, 'between honest critics who recognize what is wrong, and defeatists who refuse to see that anything is right.'

"Mr. Bush's use of the term 'defeatists' lay at the rhetorical crux of his new argument. The main obstacle, he now contends, is not the insurgency or the anti-American sentiment in Iraq; it is the risk that Americans will give up too early and let terrorists believe they have intimidated 'America into a policy of retreat.' It is an argument he made forcefully in the four speeches that preceded his Oval Office address, when he contended that Al Qaeda believed that Americans would abandon Iraq as they abandoned Vietnam."

Elisabeth Bumiller writes in the New York Times: "The president, speaking in a steady voice punctuated by the constant gesturing of his hands, nonetheless acknowledged his critics more than he has in the past, and adopted a more humble tone."

Tom Shales writes in The Washington Post: "Grim-faced, yet with a trace of anxiety in his eyes, Bush delivered the remarks seated rigidly at a desk, making a variety of hand gestures as he spoke and wearing one of his traditional baby-blue ties."

Fact Checking?

Thom Shanker writes in the New York Times: "Mr. Bush spoke broadly of the deep commitment to the mission found among American officers and troops in Iraq, and he noted that even 'the terrorists' have sent communications among themselves that admit 'they feel a tightening noose, and fear the rise of a democratic Iraq.'

"But Mr. Bush, in his speech, did not cite assessments by the Pentagon, the military and American intelligence that acknowledge the complex nature of an insurgency made up of foreign fighters, former government loyalists, Sunni and Shiite militants and even common criminals -- a complicated mix that offers no single solution for stability."

Doyle McManus writes in the Los Angeles Times: "Bush also quoted selectively from recent opinion polls to suggest that Iraqis were satisfied with the course of events in their country. 'Seven in 10 Iraqis say their lives are going well, and nearly two-thirds expect things to improve even more in the year ahead,' he said.

"He was quoting almost verbatim from the findings of a recent poll in Iraq that was sponsored jointly by ABC News, Time magazine and other news organizations.

"But the same poll had findings that Bush left out: Fewer than half of Iraqis -- 46% -- said their country was better off than it was before the war; half said it was wrong for the United States to invade in 2003. Two-thirds said they opposed the continued presence of U.S. troops, and almost half said they would like to see U.S. forces leave soon."

Mike Allen writes in Time: "Democrats point out that the binary choice Bush offered does not allow for the possibility of a quagmire, where victory is not a choice -- and the whole notion of victory must be redefined."

Had I been writing a fact-checking story last night, I would have noted Bush's explanation of the consequences of pulling out of Iraq. "We would abandon our Iraqi friends and signal to the world that America cannot be trusted to keep its word. We would undermine the morale of our troops by betraying the cause for which they have sacrificed. We would cause the tyrants in the Middle East to laugh at our failed resolve, and tighten their repressive grip. We would hand Iraq over to enemies who have pledged to attack us and the global terrorist movement would be emboldened and more dangerous than ever before."

And I would have noted the counter-argument, made by William Odom on NiemanWatchdog.org, that pretty much everything Bush says would happen if we left is happening already.

Cheney's Trip

Richard W. Stevenson writes in the New York Times: "Vice President Dick Cheney paid a surprise visit to Iraq on Sunday, the opening move in the White House's extraordinary daylong effort to shore up public support for continued military involvement in the country.

"The highly scripted day unfolded exclusively behind concrete barriers, barbed wire, armed guards and the other measures to ensure his safety, and came as insurgents broke the relative calm since the national election on Thursday with a string of attacks in central and northern Iraq that left at least nine people dead."

In his pool report to colleagues, Stevenson wrote that Cheney switched from his red, white and blue 757 to a C-17 cargo plane for the unannounced flight into Baghdad. "An enormous Airstream motor home had been custom-fitted inside the center of the plane so that the vice president could travel in comfort. Lower level Cheney staffers sat in three rows of seats in front of Airstream II, while your poolers were herded over to the steel-and-canvas contraptions lining the sides of the plane. Journalists had a front row seat to the massive stainless steel sides of the motor home."

The trip was so secret that even the Iraqi prime minister, Ibrahim al-Jaafari, didn't know Cheney was there until they came face to face.

Cheney gave a speech to 650 troops at the Al-Asad Air Base. Here's the text .

After the speech, however, Cheney held a smaller, roundtable discussion with troops.

The White House did not release a transcript of that discussion. The Associated Press reports that Cheney faced "tough questions from battle-weary troops. . . .

"Military commanders and top government officials offered glowing reports, but the rank-and-file troops Cheney met did not seem to share their enthusiasm.

" 'From our perspective, we don't see much as far as gains,' said Marine Cpl. Bradley Warren, the first to question Cheney in a round-table discussion with about 30 military members. 'We're looking at small-picture stuff, not many gains. I was wondering what it looks like from the big side of the mountain -- how Iraq's looking.' "

Here's Cheney's response, via Stevenson: "Well, Iraq's looking good. It's hard sometimes, if you look at just the news, to have the good stories burn through. Part of it is that what we're doing here, obviously, takes time. It's hard, tough, day-in, day-out kind of work that all of you are involved in. But from our perspective, from the standpoint of the president, we spend a lot of time on it between us. It's probably the single most important problem on our platter that we have to deal with -- and we do every day. . . .

"I think we've turned the corner, if you will. I think when we look back from 10 years hence, we'll see that the year '05 was in fact a watershed year here in Iraq," the vice president said. "We're getting the job done. It's hard to tell that from watching the news. But I guess we don't pay that much attention to the news."

Jonathan Finer and Naseer Nouri write in The Washington Post: "Violence and civil unrest surged across Iraq on Sunday as Vice President Cheney made his first visit here in more than a decade, praising what he called the 'remarkable' turnout by voters in nationwide elections Thursday and telling U.S. troops that the country had 'turned the corner.'

"Shrouded in fortified compounds and shuttled between venues by squadrons of helicopters, Cheney came on a day that underscored the deep economic and security challenges the country faces."

Cheney in Afghanistan

Cheney then flew to Kabul, where he watched from the front row as Afghanistan's national assembly took its first oath of office.

Nedra Pickler of the Associated Press describes Cheney's chaotic arrival in Afghanistan.

"The Cheneys' seven-hour visit to Afghanistan began when their unmarked C-17 cargo plane landed at Bagram Air Base. They then flew by helicopter to a spot outside the parliament building. The chopper stirred up a massive dust storm, but the Cheneys were shielded when they ducked into a black sport-utility vehicle.

"Security forces surrounded the Cheneys' vehicle and walked along as it moved with their hands on the side of the vehicle. A gun-toting Afghan soldier dressed in fatigues pushed the rest of Cheney's entourage against an outside wall until the gates to the parliament building closed behind them.

"Afghan security forces insisted on searching all the bags carried by members of Cheney's staff and the press who were left outside.

"Secret Service agents objected, saying they had already been checked. A White House advance staffer already on site came out and angrily demanded that the Afghans admit military aides carrying the briefcase that contains the U.S. government's nuclear weapon codes.

" 'I'm telling you to open the gates now,' the White House staffer said. 'These are the vice president's military aides.'

"The Afghans allowed Cheney's military aides through but insisted on doing complete body searches of the rest of his traveling party."

Cheney on Nightline

Cheney held an interview yesterday with Terry Moran that will be aired on ABC's Nightline tonight. Here are excerpts .

Defending the NSA wiretaps, Cheney said: "It's the kind of capability if we'd had before 9/11 might have led us to be able to prevent 9/11."

And, he said: "Terry, these are communications that involve acknowledged or known terrorists -- dirty numbers, if you will. And in fact, it is consistent with the president's constitutional authority as commander in chief. It's consistent with the resolution that was passed by the Congress after 9/11."

He added: "[W]hat I'm concerned about, Terry, is that as we get farther and farther from 9/11, we've got -- we seem to have people less and less committed to doing everything that's necessary to defend the country."

Here's another exchange:

"Moran: Before the war you said Americans would be greeted as liberators here, and yet your own trip here today was undertaken in such secrecy that not even the prime minister of this country knew you were coming, and your movements around are in incredible secrecy and security. Do you ever think about how and why you got it wrong?

"Cheney: I don't think I got it wrong. I think the vast majority of the Iraqi people are grateful for what the U.S. did. I think they believe overwhelmingly that they're better off today than they were when Saddam Hussein ruled."

Bush on PBS

Here's the text of Bush's interview on Friday with Jim Lehrer of PBS's Newshour.

Lehrer repeatedly push Bush to comment on the NSA story. Bush refused.

"PRESIDENT BUSH: I-- Jim, I know that people are anxious to know the details of operations, they-- people want me to comment about the veracity of the story. It's the policy of this government, just not going [to] do it, and the reason why is is that because it would compromise our ability to protect the people."

Just not going to do it? He did it less than 24 hours later.

Lehrer also tried to get Bush to talk about the Plame case.

"JIM LEHRER: Robert Novak, a columnist, says that-- he's the guy who the whole world knows first printed Valerie Plame's name as being a CIA operative. He says now that you know, he's certain you know and leaked her name. Do you?

"PRESIDENT BUSH: You know, I'm not going talk about the case. I've been asked not to talk about the case by the prosecutor and I'm not going to. I appreciate his bold assertion, however.

"JIM LEHRER: In other words, you don't-- you're not going say anything about this?

"PRESIDENT BUSH: No, I'm really not.

"I, you know, I'm-- you know, I made a statement the other day about another case about Tom Delay, and my point in bringing up Tom Delay's name in terms of another case going on in Texas was, is that people are innocent till proven otherwise. All people are. And I feel the same way about the Fitzgerald investigation but it's an ongoing investigation. There are still loose ends that evidently he's looking at and I'm just not going discuss. . . .

"JIM LEHRER: Well, why would Novak say something like that?

"PRESIDENT BUSH: Better ask him. I don't know.

"JIM LEHRER: You don't know. Okay.

"The -- you mentioned Tom Delay. Why did you say he was innocent?

"PRESIDENT BUSH: Well, I was--

"JIM LEHRER: This is an interview with Brit Hume.

"PRESIDENT BUSH: I did and -- but the point I was making was innocent till, until otherwise proven, and I was also asked did I hope he would come back to Congress. The answer was yes.

"JIM LEHRER: But you-- I looked very carefully at that transcript . I mean, you essentially said he was innocent. I mean, you weren't -- that wasn't -- you weren't really saying that then. You were just saying he's presumed innocent?

"PRESIDENT BUSH: I-- that's exactly what I was saying.


Weekend Retreat

Elisabeth Bumiller writes in the New York Times from the Chesapeake Bay retreat of St. Michaels, Md., where "Vice President Dick Cheney and Defense Secretary Donald H. Rumsfeld have found peace and quiet in their new weekend hawks' nests, even if their presence in this Chesapeake Bay retreat causes a racket in town."

Cryptome.org has collected all sorts of information on Cheney's new home, including a virtual tour of the property.

Late Night Humor

Jay Leno via the New York Times : "In a speech, President Bush said, 'As president, I am responsible for the decision to go into Iraq.' Yeah, well, I don't think he has to worry about other people trying to take credit for that one. That's like the captain of the Titanic saying 'hitting the iceberg, that was my idea.' "

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