Follow the Leader

By Dan Froomkin
Special to washingtonpost.com
Friday, June 20, 2008; 1:01 PM

What kind of a country is it where, when the head of state asks you to do something that may well be illegal, but assures you that he considers it legal, you can't be held accountable for doing it?

Welcome to the new U.S. of A.

Under the surveillance "compromise" that the House of Representatives approved today, telecommunications companies that participated in the government's warrantless surveillance program would get immunity from civil lawsuits as long as they showed that they were told that the program was authorized by President Bush and was determined by his legal team to be lawful.

With Congress having largely abandoned its oversight obligations on this issue, and with little chance of Bush's Justice Department investigating itself, these lawsuits were really the only remaining avenue of accountability -- at least until the next administration.

But the new law would prohibit federal judges from addressing the merits of these suits. Instead, since the government did provide assurances about legality that the companies can easily document, judges would be required to dismiss them.

In a system of laws, a permission slip from the president isn't supposed to supercede duly enacted legislation -- and the Constitution.

So how did Bush get his way with Congress -- again? It was just four months ago that House Democrats defiantly rejected what they called Bush's fear mongering and refused to vote on a surveillance proposal that included telecom immunity. It appeared that Bush's iron hold over Congress on national security had finally been broken.

But, on some issues at least, Congress is apparently still willing to cave to The Man.

Bush Speaks

Bush made brief remarks this morning about the surveillance bill, as well as the no-strings-attached troop funding bill the House passed yesterday. He looked like the proverbial cat that ate the canary.

"My Director of National Intelligence and the Attorney General tells me that this is a good bill. It will help our intelligence professionals learn our enemies' plans for new attacks," Bush said.

"It ensures that those companies whose assistance is necessary to protect the country will themselves be protected from liability for past or future cooperation with the government."

The Coverage

While some Democratic House leaders were pitching the agreement in general -- and the immunity provisions in particular -- as a compromise, many reporters didn't buy it.

Eric Lichtblau writes in the New York Times: "After months of wrangling, Democratic and Republican leaders in Congress struck a deal on Thursday to overhaul the rules on the government's wiretapping powers and provide what amounts to legal immunity to the phone companies that took part in President Bush's program of eavesdropping without warrants after the Sept. 11 attacks.

"The deal, expanding the government's powers to spy on terrorism suspects in some major respects, would strengthen the ability of intelligence officials to eavesdrop on foreign targets. It would also allow them to conduct emergency wiretaps without court orders on American targets for a week if it is determined that important national security information would otherwise be lost. If approved, as appears likely, the agreement would be the most significant revision of surveillance law in 30 years.

"The agreement would settle one of the thorniest issues in dispute by providing immunity to the phone companies in the Sept. 11 program as long as a federal district court determined that they received legitimate requests from the government directing their participation in the program of wiretapping without warrants.

"With AT&T and other telecommunications companies facing some 40 lawsuits over their reported participation in the wiretapping program, Republican leaders described this narrow court review on the immunity question as a mere 'formality."

"'The lawsuits will be dismissed," Representative Roy Blunt of Missouri, the No. 2 Republican in the House, predicted with confidence.

"The proposal -- particularly the immunity provision -- represents a major victory for the White House after months of dispute."

Dan Eggen and Paul Kane write in The Washington Post write that "overall, the deal appears to give Bush and his aides, including Attorney General Michael B. Mukasey and Director of National Intelligence Mike McConnell, much of what they sought in a new surveillance law. . . .

"Caroline Frederickson, a lobbyist for the American Civil Liberties Union, said, 'The telecom companies simply have to produce a piece of paper we already know exists, resulting in immediate dismissal.'. . .

"Pelosi said the most important part of the deal is 'exclusivity' language making it clear that the surveillance law is the only legal authority when it comes to government spying. In defending its warrantless spying program in the past, Bush administration lawyers argued that the commander in chief's warmaking powers trumped such considerations."

Pamela Hess writes for the Associated Press: "The White House had threatened to veto any bill that did not shield the companies, which tapped lines at the behest of the president and attorney general but without permission from a special court established for that purpose, the Foreign Intelligence Surveillance Court. On Thursday, White House spokesman Tony Fratto said the bill met the standards sought by Bush and that the president supported it."

And It's Not Just the Immunity Provision

Siobhan Gorman writes in the Wall Street Journal (subscription required): "Democratic and Republican congressional leaders agreed to the most sweeping rewrite of U.S. domestic-spying powers in three decades, ensuring that much of the controversial surveillance operation created by President Bush in secret will outlast his administration.

"The surveillance powers may end up being a rare survivor of the administration's post-9/11 redrawing of national-security law. Other elements, including interrogation techniques, Guantanamo Bay and secret overseas prisons, have been challenged by the Supreme Court and Congress, withdrawn by the administration or face possible withdrawal by the next.

"The deal, if adopted in Congress, would bring the activities of a National Security Agency surveillance program permanently under the law. It would permit the federal government, in certain circumstances, to listen to communications of U.S. citizens without a specific warrant. It would also expand government powers to monitor communications on topics other than terrorism. Before the Sept. 11, 2001, attacks, the government needed a warrant if it wanted to listen to any conversation involving a U.S. citizen."

In a statement, the ACLU's Caroline Fredrickson argues that, in addition to the immunity provisions: "This bill allows for mass and untargeted surveillance of Americans' communications. The court review is mere window-dressing -- all the court would look at is the procedures for the year-long dragnet and not at the who, what and why of the spying. Even this superficial court review has a gaping loophole -- 'exigent' circumstances can short cut even this perfunctory oversight since any delay in the onset of spying meets the test and by definition going to the court would cause at least a minimal pause. Worse yet, if the court denies an order for any reason, the government is allowed to continue surveillance throughout the appeals process, thereby rendering the role of the judiciary meaningless. In the end, there is no one to answer to; a court review without power is no court review at all."


Salon blogger Glenn Greenwald writes that "all the Attorney General has to do is recite those magic words -- the President requested this eavesdropping and did it in order to save us from the Terrorists -- and the minute he utters those words, the courts are required to dismiss the lawsuits against the telecoms, no matter how illegal their behavior was. . . .

"It's full-scale, unconditional amnesty with no inquiry into whether anyone broke the law. In the U.S. now, thanks to the Democratic Congress, we'll have a new law based on the premise that the President has the power to order private actors to break the law, and when he issues such an order, the private actors will be protected from liability of any kind on the ground that the Leader told them to do it -- the very theory that the Nuremberg Trial rejected."

He also notes: "[I]sn't it so odd how this 'compromise' -- just like the Military Commissions Act, the Protect America Act and all the other great 'compromises' from the Bush era which precede this one -- is producing extreme indignation only from those who believe in civil liberties and the rule of law, while GOP Bush followers seem perfectly content and happy with it? I wonder if that suggests that what the Democratic leadership is supporting isn't really a 'compromise' at all."

Laura Rozen blogs with a few questions about telecom immunity: "Doesn't that actually endorse and extend to private actors the Nixonian view that if the president says it's legal, it's legal, regardless of what the law says and the Constitution says? Wouldn't that set an awful precedent that an administration could get private actors to do whatever they wanted including breaking the law?"

Legal blogger Marty Lederman mocks the big concession Democratic House leaders are crowing about: "The Democrats worked long and hard to include in the bill a provision (stating that FISA and other specified statutes are to be 'the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted') that is, for all intents and purposes, a reenactment of the current 18 U.S.C. 2511(2)(f), which has been the backbone of FISA for 30 years. . . .

"My favorite bit, however, is [House Speaker Nancy Pelosi's] expectation that 'the language would prevent Mr. Bush, or any future president, from circumventing the law.' Yeah, right -- just as it 'prevented' President Bush from authorizing wholesale violations of FISA from 2001 until 2007. (Note to Speaker Pelosi: President Bush's official view, vigorously defended by the Department of Justice, is that the 'exclusive means' provision is unconstitutional, and can therefore be disregarded. FYI)"

Senator Russ Feingold issued this statement: "The proposed FISA deal is not a compromise; it is a capitulation.... Instead of cutting bad deals on both FISA and funding for the war in Iraq, Democrats should be standing up to the flawed and dangerous policies of this administration."

Editorial Board Watch

The New York Times editorial board blogs: "Balance? Only if you consider it balance to tip the scales heavily toward letting the government spy on its citizens whenever it wants and away from the public's privacy rights."

The Washington Post editorial board, by contrast, concludes: "Congress shows it still knows how to reach a compromise in the national interest."

The Wall Street Journal editorial board writes: "The best news about yesterday's White House-Democrat deal on overseas eavesdropping is that the ACLU and the anti-antiterror Internet mob are apoplectic. This can only be good for U.S. national security."

McClellan Watch

Former White House press secretary Scott McClellan's testimony before the House Judiciary Committee was interrupted by the FISA vote. So I'll have more on Monday.

The hearing opened up with committee Chairman John Conyers raising the possibility that Vice President Cheney and others at the White House had obstructed justice when they sent McClellan out to state -- incorrectly -- that Cheney chief of staff Scooter Libby was not involved in the leak of CIA agent Valerie Plame's identity.

Ranking member Lamar Smith accused McClellan of "selling out the president and his friends for a few pieces of silver."

Flood Watch

Michael Abramowitz writes in The Washington Post: "President Bush helicoptered over a water-soaked stretch of eastern Iowa on Thursday, swooping low in Marine One to inspect a burst dam, collapsed bridges and saturated buildings here before landing to offer sympathy to residents struggling to cope with severe flooding that has displaced thousands. . . .

"Federal disaster officials said the repercussions from the flooding across states present their biggest challenge since Hurricane Katrina, the 2005 disaster that, for many, placed a hard-to-shake stamp of incompetence on the Bush administration. They said they have learned a host of lessons, as simple as the need to share responsibility for the distribution of water among several agencies or to create mobile recovery centers for people who cannot travel to existing centers.

"Since Katrina, Bush has also been alert to the public relations dimensions of disaster response, making an array of visits to the victims of wildfire, tornadoes, flooding and -- in Minneapolis last year -- bridge collapse. . . .

"Today's three-hour visit by Bush, which included stops at a Red Cross shelter and a washed-out middle-class neighborhood near the University of Iowa, seemed to lack the emotional resonance of those previous trips, with much of his interaction with ordinary Iowans out of view of reporters."

Thomas Beaumont and Jason Clayworth write in the Des Moines Register: "President Bush offered sympathy to Iowans coping with the state's worst natural disaster on a tour of flood-ravaged eastern Iowa on Thursday - and he pledged a coordinated recovery and reconstruction effort.

"But he made few promises during a three-hour swing from Cedar Rapids to Iowa City, and some wished he offered more specific plans. . . .

"'I think he is aware of how catastrophic it is for us and is willing to help. Now the question becomes, what does his staff see as routes to help. That's less clear,' said Kay Halloran, mayor of Cedar Rapids."

If Iowans had wanted Bush to stay longer, maybe they should have scheduled a Republican fundraiser. Bush is spending all day today traveling to Florida and North Carolina to raise money for GOP candidates.

Praising the president also gets his attention. Here, from Bush's photo op yesterday with Iowa Gov. Chet Culver:

Culver: "Thank you, Mr. President. (Applause.) If I could, just very quickly, I want to thank the President on behalf of the people of Iowa -- "

Bush: "Get those cameras back in here. (Laughter.)"

Iraq Watch

Reuters reports: "President George W. Bush spoke with Iraqi Prime Minister Nuri al-Maliki on Thursday and they agreed negotiations for a long-term security pact were going well, the White House said. Maliki last week had said the talks were stalled.

"'The two leaders discussed the ongoing negotiations to develop normalized bilateral relations -- and agreed that the negotiations are proceeding well with constructive ideas being offered by both sides,' White House spokesman Gordon Johndroe said in a statement. . . .

"'President Bush confirmed the United States' commitment to forge an agreement that fully respects Iraqi sovereignty,' Johndroe said. The two leaders spoke in a video conference call."

Iran Watch

Michael R. Gordon and Eric Schmitt write in the New York Times: "Israel carried out a major military exercise earlier this month that American officials say appeared to be a rehearsal for a potential bombing attack on Iran's nuclear facilities."

A Pentagon source told the Times that one of Israel's goals "was to send a clear message to the United States and other countries that Israel was prepared to act militarily if diplomatic efforts to stop Iran from producing bomb-grade uranium continued to falter."

Afghanistan Watch

The New York Times editorial board writes: "An unstable Afghanistan in which extremists and narco-traffickers have a safe haven may well be another Bush legacy. His would-be successors need to explain how they would deal with it."

Torture Watch

Dahlia Lithwick writes for Slate: "It isn't easy to justify torture. It does, after all, violate centuries' worth of human rights norms and international and domestic law. It has famously been used by the Nazis and Stalin, Saddam Hussein and Kim Il-Sung--not really the kinds of folk we usually strive to emulate. And as professor Darius Rejali explains in his superb Torture and Democracy, it also doesn't work, at least not as a means of extracting useful information. It doesn't work because, among other things, torture leads to false confessions, because interrogators are not skilled at detecting false confessions, and because tortured prisoners are inclined to misremember and misstate what information they do know. You would think that having decided to permit torture, in the face of all these legal, moral, and practical objections, those members of the Bush administration who did so could assemble a coherent defense: We tortured because it works; we tortured because nothing else worked better. We tortured because after careful consideration, it was worth the moral price we paid. But as Congress begins the painful process of tracing the origins of the government's abusive interrogation program, its members are now confronted by the last refuge of torturers everywhere: We tortured with the very best of intentions."

But, Lithwick asks: "Is it enough to say in hindsight that the men who knowingly gutted the American anti-torture policy were genuinely terrified of the next attack, genuinely bending to intense White House pressure, or genuinely behaving in 'good faith?' I suspect they were genuinely all of the above. Are we prepared to commit ourselves to a legal regime--particularly in times of great national fear and uncertainty--in which the good faith of those who act, and act in secret, is all that matters?"

And Jan Crawford Greenburg and Ariane de Vogue report for ABC News: "Former Attorney General Alberto Gonzales, now under investigation for allegedly politicizing the Justice Department, ousted a top lawyer for failing to adopt the administration's position on torture and then promised him a position as a U.S. attorney to placate him, highly placed sources tell ABC News."

Detainee Watch

Michael Doyle and Marisa Taylor write for McClatchy Newspapers: "The Taliban tortured Abdul Rahim Abdul Razak al Ginco. They thought he was a U.S. spy. Then, U.S. soldiers called the Syrian native an enemy and shipped him to Guantanamo.

"Now, Ginco will be turning a spotlight back on the Bush administration itself. Newly empowered by the Supreme Court, Ginco has become the first Guantanamo detainee to demand in a U.S. federal court that the military show the hard evidence that justifies his detention. Scores of others are expected to do likewise, attorneys predict.

"The war on terror may never be the same."

Legacy Watch

Jonathan Last writes in a Philadelphia Inquirer opinion piece: "The Bush presidency can fairly, if tentatively, be judged a failure."

Last argues that "Bush's most serious flaw was not a lack of IQ, but rather use of a management philosophy unsuited to the presidency." Specifically: He delegated too much to Cheney.

"[U]pon assuming the presidency Bush made the more experienced Cheney a hands-on vice president who effectively served as the White House chief of staff. . . .

"A chief of staff is an employee who serves at the pleasure of the president. The vice presidency, on the other hand, is a constitutional office. A chief of staff can be fired. A vice president cannot.

"If the vice president is acting as chief of staff, it creates a situation where one cannot have disagreement between the president and the man responsible for running the White House, because there is no practical way to resolve such a disagreement.

"And disagreement is one of the necessary ingredients for change. One of the striking features of the Bush administration is a dearth of disagreement among the president's advisers.

"Disagreement is not always productive, mind you. But when a situation goes sideways, as the Iraq project did in late 2003 and early 2004, disagreement is vital to finding a solution."

Andy Sullivan writes for Reuters: "When President McCain or President Obama takes office next year, he will inevitably find George W. Bush's budgetary legacy haunts the White House.

"Bush will leave record budget deficits, a sluggish economy and rising health-care and retirement costs that are likely to constrain his successor's ability to pursue his own policies, analysts say. . . .

"The next president will inherit a sluggish economy hobbled by high energy prices and a housing slump, brought on in part by the Bush administration's drive to expand home ownership."

Albatross Watch

Maeve Reston and Bob Drogin write in the Los Angeles Times: "In the months ahead, John McCain will have to repeatedly beat back claims by Barack Obama's campaign that he is running to win a third term for the Bush administration.

"But events this week have illustrated just how difficult that could be. In this crucial opening phase of the general election campaign -- when McCain is trying to establish his independence from the unpopular president -- his message has repeatedly been eclipsed by that of the White House. . . .

"Peverill Squire, a political science professor at the University of Missouri, . . . [said] it wasn't clear whether Bush was 'yet willing to do things that a president leaving office needs to do to help his party's candidate' -- namely, stepping back to give McCain first billing."

Karl Rove Watch

Jonathan Martin of Politico looks for signs of third-party groups preparing to spend millions attacking Barack Obama -- and finds Karl Rove.

"Multiple Republican sources say that Karl Rove has been in contact with donors such as [Sheldon] Adelson [a Las Vegas casino mogul who has been the chief financial patron of Freedom's Watch] and [T. Boone] Pickens [the Texas oilman who gave $3 million to the Swift Boat Veterans for Truth] about helping to create an independent effort but that to date nothing has come of it."

Cheney Keeps His Secrets

Kevin Bogardus and Rebecca Brown write in the Hill: "Vice President Dick Cheney has won his battle to withhold records from the public despite efforts by Congress and other critics who say they should be open to scrutiny. . . .

"'He has managed to stonewall everyone," said Rep. Henry Waxman (D-Calif.), chairman of the House Oversight and Government Reform Committee. 'I'm not sure there's anything we can do.'"

In particular, Congress has demanded that Cheney turn over to an oversight agency the precise number of records he has determined to be classified. It has requested a detailed list of his employees.

"Cheney argues that, as the tie-breaking vote in the Senate, he is not exclusively part of the executive branch and therefore not subject to the public-records standards that have been applied to past administrations."

Bogardus and Brown suggest: "The question now is whether his unique position will survive into the next administration.

"Steven Aftergood of the Federation of American Scientists, who has battled with OVP to release more information, thinks not.

"'Vice President Cheney won the battles over non-disclosure, but I believe he has lost the war," said Aftergood. 'His position has become an object of public ridicule.'"

No Peeking

Al Kamen writes in The Washington Post with an explanation for the " No Peeking" memo he reproduced on Wednesday.

The memo, distributed to folks working in the National Grange Building at 1616 H St. NW, next door to Decatur House and a block from the White House, conveyed a Secret Service request that organizations with windows facing Lafayette Park draw their blinds and stay away from their windows between Tuesday night and Wednesday afternoon.

Kamen discloses that it "was sparked by a visit from Vice President Cheney. He was at Decatur House, which is on the park, for a Republican National Congressional Committee fundraising lunch."

Late Night Humor

Jay Leno via U.S. News: "President Bush spoke at a campaign rally in support of John McCain. They raised millions and millions of dollars, most of which will be used to repair the damage of President Bush supporting John McCain at a campaign rally."

Jon Stewart looks at how Bush has recently announced his intention to track down Osama bin Laden, get an international agreement on climate change and reach peace in the Middle East -- all in the next seven months.

Being president is not like being in college, Stewart says. "You can't just dick around all semester and then pull off a couple of all-nighters before graduating. It doesn't work that way. You can't just throw down some Red Bull and Adderall, and think you're going to fix the Middle East."

Stewart has a new nickname for the president, and a new comic book hero: The Procrastinator.

Cartoon Watch

Lee Judge, Pat Oliphant, Pat Bagley and Daniel Wasserman on Bush and Big Oil; Ed Stein on McCain's Bush problem; Clay Jones on Bush's tradition of disaster response; Jim Morin on the worst of the worst.

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