By Dan Froomkin
Special to washingtonpost.com
Monday, February 25, 2008; 1:52 PM

As President Bush and his aides reject the accusation that they are playing politics with matters of national intelligence, it's worth noting that they have done precisely that many times.

Bush and his top associates have a tradition of selectively disclosing intelligence findings that serve their political agenda -- while aggressively asserting the need to keep secret the information that would tend to discredit them. Think the run-up to war in Iraq. Think Valerie Plame. (See, for example, my March 31, 2006, column.)

Both aspects of this pattern are on full display in the White House's current pursuit of a surveillance bill that would permanently expand its warrantless wiretapping authority -- and would provide retroactive immunity to telecommunications companies that for years complied with Bush's possibly illegal requests for private information.

In attempting to block the lawsuits being pursued by the ACLU and others, the White House is trying to eliminate the last opportunity Americans have to find out what the government has done in their name (at least until the next president takes over).

But now that it's politically advantageous, the administration is alleging all sorts of previously secret intelligence successes based on its expanded powers -- even while it refuses to provide any way to verify its claims.

On Friday afternoon, Attorney General Michael B. Mukasey and national intelligence director Mike McConnell sent a six-page letter to Congress that said the return to older standards for wiretapping -- necessitated by the House's refusal to pass a Senate-backed extension earlier this month -- was hurting intelligence collection.

Although they backtracked within hours -- saying that after a hiccup, the government was once again receiving the necessary intelligence -- they justified the expanded program with some bold assertions: "Using the authorities provided in the Protect America Act, we have obtained information about efforts of an individual to become a suicide operative, efforts by terrorists to obtain guns and ammunition, and terrorists transferring money. Other information obtained using the authorities provided by the Protect America Act has led to the disruption of planned terrorist attacks."

A suicide bomber? Where? Terrorist attacks that have been disrupted? That's huge news.

But should we believe a word they say? Were these plots serious -- or imaginary, like those of the bumblers in Miami who the Justice Department originally said were planning an attack on the Sears Tower in Chicago? Would they withstand public scrutiny -- or vanish like the dirty bomb charges against Jose Padilla? And if these plots were for real, where's the proof that they wouldn't have been found out within the framework of the old law? The last time McConnell made just such an assertion, he ended up having to withdraw it.

In short, it's not just the timing of these disclosures that's suspect -- it's the disclosures themselves. Another example, which I described on NiemanWatchdog.org, came in October when Bush listed four terrorist attacks he said his administration had prevented as a result of the CIA's harsh interrogation tactics. Under examination, it wasn't clear whether any of those attacks were much more than a fantasy.

Eric Lichtblau wrote in Saturday's New York Times: "A new round of political sparring erupted Friday over the government's wiretapping powers, as the Bush administration asserted that the lapsing of a surveillance law a week ago has already led to the loss of important intelligence information and made private phone carriers less willing to cooperate.

"Democrats immediately returned fire over the suggestion that they had compromised national security. The Senate majority leader, Harry Reid of Nevada, accused President Bush of 'crying wolf' and said, 'These latest scare tactics represent the president at his most unreasonable, irresponsible and misleading.' . . .

"[I]n a sharply worded letter released Friday, Attorney General Michael B. Mukasey and Mike McConnell, the director of national intelligence, said the return to the older standards for wiretapping had hurt intelligence collection. . . .

"'Our experience in the past few days since the expiration of the act demonstrates that these concerns are neither speculative nor theoretical,' the letter said. 'Allowing the act to expire without passing the bipartisan Senate bill had real and negative consequences for our national security. Indeed, this has led directly to a degraded intelligence capability.'

"The letter gave no details on actual intelligence losses.

"Mr. Mukasey and Mr. McConnell said the uncertainty created by the lapse of the law had 'reduced cooperation' from some telecommunication providers, causing them to delay or refuse to comply with wiretap requests.

"Generally, the government has the ability to compel the cooperation of private companies and assure them legal immunity with a valid court order. But intelligence officials said compelling cooperation was a cumbersome process that could require litigation, and they predicted that more private companies might resist cooperating if the current impasse and uncertainty over the law continued.

"Democratic leaders blamed the administration for any problems, saying its refusal to agree to a brief extension of the law had caused any lapses."

Josh Meyer wrote in Sunday's Los Angeles Times: "A day after warning that potentially critical terrorism intelligence was being lost because Congress had not finished work on a controversial espionage law, the U.S. attorney general and the national intelligence director said Saturday that the government was receiving the information -- at least temporarily. . . .

"One Democratic congressional official, speaking on condition of anonymity because he was not authorized to discuss the matter, expressed skepticism that any significant gap had existed, noting that existing rules permit continued monitoring of known terrorists and their associates. . . .

"'This is serious backpedaling by the DNI,' the Democratic official said of McConnell. 'He's been saying for the last week that the sky is falling, and the sky is not falling.'"

Reuters reports: "The Bush administration said on Saturday U.S. telecommunications companies have agreed to cooperate 'for the time being' with spy agencies' wiretaps, despite an ongoing battle between the White House and Congress over new terrorism surveillance legislation. . . .

"'Although our private partners are cooperating for the time being, they have expressed understandable misgivings about doing so in light of the ongoing uncertainty and have indicated they may well discontinue cooperation if the uncertainty persists,' the statement said."

The chairmen of the House and Senate intelligence and judiciary committees -- Jay Rockefeller, Patrick Leahy, Silvestre Reyes and John Conyers-- write in a Washington Post op-ed this morning that "instead of working with Congress to achieve the best policies to keep our country safe, once again President Bush has resorted to scare tactics and political games. . . .

"[O]ur country did not 'go dark' on Feb. 16 when the Protect America Act (PAA) expired. Despite President Bush's overheated rhetoric on this issue, the government's orders under that act will last until at least August. These orders could cover every known terrorist group and foreign target. No surveillance stopped. If a new member of a known group, a new phone number or a new e-mail address is identified, U.S. intelligence can add it to the existing orders, and surveillance can begin immediately. . . .

"If President Bush truly believed that the expiration of the Protect America Act caused a danger, he would not have refused our offer of an extension. . . .

"So what's behind the president's 'sky is falling' rhetoric?

"It is clear that he and his Republican allies, desperate to distract attention from the economy and other policy failures, are trying to use this issue to scare the American people into believing that congressional Democrats have left America vulnerable to terrorist attack.

"But if our nation were to suddenly become vulnerable, it would not be because we don't have sufficient domestic surveillance powers. It would be because the Bush administration has done too little to defeat al-Qaeda, which has reconstituted itself in Pakistan and gained strength throughout the world. Many of our intelligence assets are being used to fight in Iraq instead of taking on Osama bin Laden and the al-Qaeda organization that attacked us on Sept. 11 and that wants to attack us again.

"The president may try to change the topic by talking about surveillance laws, but we aren't buying it."

White House press secretary Dana Perino responded to the op-ed this morning with the following statement: "There is an old rhetorical tactic in Washington: you repeat something often enough, regardless of whether it's true, and hope people will start to believe it."

As I've often noted, this tactic is one of the White House's signature approaches to communication. But Perino wasn't talking about her boss.

"This has been the preferred tactic of many Democrats involved in the FISA debate," she said, "and the Democratic chairmen of the House and Senate Intelligence and Judiciary committees employ it again in an op-ed published today in the Washington Post. . . .

"The President has listened to the judgment of these same professionals that the absence of long-term legislation creates uncertainty that poses a risk to those tools and could lead to the loss of intelligence information and that further short-term extensions of the PAA do not solve the problem. Stating that fact is not a scare tactic -- it reflects the considered judgment of the intelligence community, whose principal concern is not politics, but doing their jobs."

Here's Bush in his Saturday radio address: "When Congress reconvenes on Monday, Members of the House have a choice to make: They can empower the trial bar -- or they can empower the intelligence community. They can help class action trial lawyers sue for billions of dollars -- or they can help our intelligence officials protect millions of lives. They can put our national security in the hands of plaintiffs' lawyers -- or they can entrust it to the men and women of our government who work day and night to keep us safe. As they make their choice, Members of Congress must never forget: Somewhere in the world, at this very moment, terrorists are planning the next attack on America. And to protect America from such attacks, we must protect our telecommunications companies from abusive lawsuits."

Bush weighed in on the issue once again this morning: "I want to share with you the core of the problem," he told a gathering of governors. "And the problem is, should companies who are believed to have helped us -- after 9/11 until today -- get information necessary to protect the country, be sued. And my answer is, absolutely not; they shouldn't be sued, for a couple of reasons.

"One, it's not fair. Our government told them that their participation was necessary, and it was -- and still is -- and that what we had asked them to do was legal. And now they're getting sued for billions of dollars -- and it's not fair, and it will create doubt amongst private sector folks who we need to help protect us.

"Secondly, such lawsuits would require disclosure of information, which will make it harder to protect the country. You can imagine when people start defending themselves, they're going to be asked all kinds of questions about tactics used. Makes absolutely no sense to give the enemy more knowledge about what the United States is doing to protect the American people.

"Finally, it'll make it harder to convince companies to participate in the future. I mean, if you've done something that you think is perfectly legal and all of a sudden you're facing billions of dollars of lawsuits, it's going to be hard to provide -- with credibility -- assurances that we can go forward."

Ron Suskind wrote in his book The One-Percent Doctrine that Abu Zubaydah, one of the Bush administration's most celebrated terror suspects and a man responsible for many domestic terror alerts in 2002, was in fact a mentally ill minor functionary who under torture made up imaginary plots against Americans.

Joseph Margulies and George Brent Mickum write in a Washington Post opinion piece: "We represent Saudi-born Abu Zubaydah in a legal effort to force the administration to show why he is being detained. And this week, with our first meeting, we begin the laborious task of sifting fact from fantasy. Yet we worry it may already be too late. . . .

"Zubaydah's mind may be beyond our reach. Regardless of whether he was 'insane' to begin with, he has gone through quite an ordeal since his arrest in Pakistan in March 2002. Shuttled through CIA 'black sites' around the world, he was subjected to a sustained course of interrogation designed to instill what a CIA training manual euphemistically calls 'debility, dependence and dread.' Zubaydah's world became freezing rooms alternating with sweltering cells. Screaming noise replaced by endless silence. Blinding light followed by dark, underground chambers. Hours confined in contorted positions. And, as we recently learned, Zubaydah was subjected to waterboarding. We do not know what remains of his mind, and we will probably never know what he experienced. . . .

"It was the Cold War communists who perfected the dark art of touchless torture. And with it, they brought U.S. soldiers to the tipping point, where the adult psyche shatters, leaving behind a quavering child. At the end of their ordeal, these soldiers made fantastic admissions of American perfidity and spoke unreservedly about their supposed misdeeds. . . .

"What will we be able to learn, at this point, from Zubaydah? Will we be able to recreate the interrogations without the tapes? Will we get access to the material that led Coleman to a conclusion so different from the administration's? . . .

"The American system of justice is founded on the idea that truth emerges from vigorous and informed debate. And if that debate cannot take place, if we cannot learn the facts and share them with others, the truth is only what the administration reports it to be. We hope it has not come to that."

Dan Eggen writes in The Washington Post: "An internal watchdog office at the Justice Department is investigating whether Bush administration lawyers violated professional standards by issuing legal opinions that authorized the CIA to use waterboarding and other harsh interrogation techniques, officials confirmed yesterday.

"H. Marshall Jarrett, counsel for the Office of Professional Responsibility, wrote in a letter to Democratic lawmakers that his office is investigating the 'circumstances surrounding' Justice opinions that established a legal basis for the CIA's interrogation program, including a now-infamous memo from August 2002 that narrowly defined torture and was later rescinded by the department.

"'Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys,' Jarrett wrote.

"This is the second publicly disclosed Justice Department investigation related to the CIA's use of waterboarding, a type of simulated drowning that is considered torture by most human rights groups and legal scholars. Jarrett's inquiry got underway in 2004, but was not confirmed publicly until now, officials said. . . .

"The results of OPR investigations are usually kept confidential because they focus on allegations of professional misconduct or other personnel issues. But in his letter Monday to Sens. Richard J. Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.), Jarrett wrote that investigators will consider releasing a 'non-classified summary' at the conclusion of the investigation 'because of the significant public interest in this matter.'"

In a statement, Whitehouse asks how the Department of Justice could have overlooked its own precedents to authorize waterboarding and concludes that "the answer was preordained and the Department was driven by politics and obedience, not law and independence. I welcome OPR's report in our continuing effort to reclaim DOJ from the 'loyal Bushies' who have besmirched a great institution.'"

Scott Shane writes in the New York Times: "Mr. Jarrett's report could become the first public accounting for legal advice that endorsed methods widely denounced as torture by human rights groups and legal authorities. His office can refer matters for criminal prosecution; legal experts said the most likely outcome was a public critique of the legal opinions on interrogation, noting that Mr. Jarrett had the power to reprimand or to seek the disbarment of current or former Justice Department lawyers. . . .

"Mr. Whitehouse, a former United States attorney, said in an interview that he believed the August 2002 memo on torture, as well as classified opinions he had reviewed, fell far short of the Justice Department's standards for scholarship. He said that in approving waterboarding, the opinions ignored both American military prosecutors' cases against Japanese officers for waterboarding American prisoners during World War II and a federal appeals court's decision that upheld the 1983 conviction of a Texas sheriff for using 'water torture' on jail inmates."

Michael Abramowitz writes in The Washington Post: "President Bush's future presidential library and public policy institute will be housed at Southern Methodist University in Dallas, officials announced yesterday, launching a project that could require hundreds of millions of dollars in private donations.

"The location of the project has not exactly been a state secret -- representatives of Bush's library foundation have been negotiating with the university for months -- but the announcement means Bush's friends and associates will soon begin raising money to bring the project to fruition."

In a letter to SMU's president, Bush wrote: "When he dedicated the first presidential library, President Franklin Roosevelt said that he hoped the public would use it to 'learn from the past' and 'gain judgment in creating their own future.' I hope the same will be true of this library. I look forward to the day when both the general public and scholars come and explore the important and challenging issues our Nation has faced during my presidency -- from economic and homeland security to fighting terrorism and promoting freedom and democracy."

Here's Bush at a state dinner for the nation's governors last night: "You know, I've developed a unique perspective on this event. For six years I sat and watched the President speak; for eight years I was the President and spoke. (Laughter.) And next year, I'll be watching on C-SPAN. (Laughter.)"

At last night's Oscars, host Jon Stewart's joke about the war in Iraq was directed more at Sen. John McCain than at Bush. Stewart: "The films that were made about the Iraq war -- let's face it -- did not do as well. But I am telling you -- if we stay the course and keep these movies in the theaters, we can turn this around. I don't care if it takes 100 years, withdrawing the Iraq movies would only embolden the audience. We cannot let the audience win."

And only one award winner said anything negative about the administration: Alex Gibney, the director of "Taxi to the Dark Side," who said upon winning the Oscar for best documentary feature: "This is dedicated to two people who are no longer with us. Dilawar, the young Afghan taxi driver, and my father, a Navy interrogator who urged me to make this film because of his fury about what was being done to the rule of law. Let's hope we can turn this country around and move away from the dark side and back to the light."

Ann Telnaes on rendition flights; Jeff Danziger on Bush's America; Rob Rogers on Bush's earful; Joel Pett on Bush in foreclosure; and all 12 of the Bush cartoons that won John Sherffius the Herblock Award last week.