I doubt any of my farflung correspondents entirely buys the Administration’s Unitary Executive theory, which essentially says what Nixon said during the Frost interviews in 1977, ‘when the president does it that means that it is not illegal.’
So, doubters: since it was unquestionably illegal, and kept secret from the people and Congress, I have to ask: exactly how can this be tolerated in a society supposedly ‘of laws, not of men’? What rational reason can there be not to impeach this president? Please? Anyone?
If you answer, because it can't be done, politically, OK, but I disagree. We cannot let this stand without at least registering that it was fought against with all we had. We've already wasted two years.
Director of National Intelligence Mike McConnell yesterday gave a strange and rambling interview concerning the new FISA amendments, and several commentators -- including Spencer Ackerman, Digby and Jeralyn Merritt -- have discussed various oddities in what he said. I want to focus on a different, and I think highly revealing, aspect of his remarks.
Unintentionally, McConnell articulated what is an unusually clear and straightforward explanation as to the state of federal law regarding eavesdropping on Americans by our government -- unusually clear particularly for a Bush official, but even in general. McConnell explained:
"The reason that the FISA law was passed in 1978 was an arrangement was worked out between the Congress and the administration, we did not want to allow this community to conduct surveillance, electronic
surveillance, of Americans for foreign intelligence unless you had a warrant, so that was required."
That is exactly what happened, and the NSA scandal has always been, and always will be, this simple and crystal clear. In 1978, the American people responded to the discovery of decades-long abuses of secret eavesdropping powers by making it a felony for any government official to eavesdrop on Americans without a warrant. What McConnell describes an "arrangement worked out between the Congress and the administration" is what most people call a "federal law," but McConnell's basic point -- that "we did not want to allow th[e intelligence] community to conduct surveillance . . . of Americans . . . unless you had a warrant, so that was required" -- is exactly correct.
But in 2001, George Bush ordered the NSA to eavesdrop on Americans in violation of that very law, and continued to do so for the next five years at least. Bush ordered the NSA to commit felonies; we now that he did so; and nothing has happened. It is and always has been as clear as it is extraordinary.
Equally extraordinary is McConnell's admission -- which marks, I elieve, the first time this has been acknowledged -- that private telecommunications companies enabled this lawbreaking by giving the administration access to the conversations of Americans with no warrants:
"Now the second part of the issue was under the president's program, the terrorist surveillance program, the private sector had assisted us. Because if you're going to get access you've got to have a partner and they were being sued."
McConnell went on to explain that the number one priority for the administration regarding FISA now is to demand that Congress make further FISA revisions by providing retroactive immunity to the telecom companies to ensure that there are no consequences from their breaking of the law:
"Now if you play out the suits at the value they're claimed, it would bankrupt these companies. So my position was we have to provide liability protection to these private sector entities. So that was part of the request. . . . The issue that we did not address, which has to be addressed is the liability protection for the private sector now is proscriptive, meaning going forward. We've got a retroactive problem. When I went through and briefed the various senators and congressmen, the issue was: all right, look, we don't want to work that right now, it's too hard because we want to find out about some issues of the past. So what I recommended to the administration is, 'Let's take that off the table for now and take it up when Congress reconvenes in September.' . . . No, the retroactive liability protection has got to be addressed."
Think about how amazing this is. McConnell clearly described that in 1978, we enacted a law prohibiting warrantless eavesdropping; the Bush administration broke that law repeatedly; and the telecommunications companies actively participated in that lawbreaking.
And now -- as a matter of national security -- the Bush administration is demanding that Congress pass a new law declaring that telecom companies are immune from any and all consequences -- both civil and criminal -- in the event they are found to have violated the law. It is hard to imagine open contempt for the rule of law being expressed more explicitly than this.
What possible reason is there to protect anyone -- including telecom companies -- with a special law enacted to declare that they are relieved of all accountability for illegal behavior? And the premise of this argument is even more dangerous than the conclusion: it is all premised on the claim that these companies were only acting at the behest of George Bush, and therefore were entitled, even obligated, to do what they did. In other words, the President has the power to order private actors to break the law and when those orders are obeyed, the
private actors are immune from the consequences of their lawbreaking, because they acted at the Leader's behest.
That government officials like McConnell feel so comfortable openly admitting that the government broke the law, obtaining amendments to legalize that behavior after the fact, and then demanding immunity for the lawbreakers, demonstrates how severely the rule of law has been eroded over the last six years. It is not hyperbole to say that government lawbreaking has become formally legitimized.
So much of this is due to the profound failure of the media and our various "experts" simply to state the basic facts here -- that it is a felony to eavesdrop on Americans without warrants and yet that is what the Bush administration did. Instead, we have self-proclaimed "experts" like the Brookings Institutions' Benjamin Wittes trying to show how smart and thoughtful and knowledgeable he is (and explicitly describing himself this way) by writing in The New Republic articles claiming that these matters are far too complicated for even the most thoughtful experts (like him) to understand, let alone the hordes of simpletons acting as though they know Bush did anything wrong here by breaking the law.
Bush-defending Beltway elites have continuously clouded what is a clear issue of lawbreaking by engaging in all sorts of ill-informed "hand-wringing" and obfuscation masquerading as angst-ridden, Serious deliberation. Hence, as always, we have had two types of opinions dominating our mainstream discourse on the issue of patently illegal eavesdropping: (1) hard-core absolute Bush apologists, and (2) those whose overriding goal is to demonstrate how reasonable and thoughtful and Serious they are by stressing how important it is to fight The Terrorists and how complex and serious and terribly difficult and therefore murky these issues are. Mike McConnell therefore knows that he can expressly admit lawbreaking and demand immunity for it because there will never be any clear voices condemning it.
In the wake of the debacle of the Democrats' FISA capitulation, many
angry Bush critics have focused on the 6-month sunset provision in order to hope that Democrats will allow this law to lapse. That will never happen. Why would it? The administration will simply use the same Terrorist fear-mongering rhetoric and Democrats will respond in exactly the same way. Why would anyone think it will be any different in six months?
The real open issue is not whether the Democratic Congress will un-do the damage they have done. The issue, as McConnell makes clear, is whether the Congress will submit to still further administration demands by granting retroactive immunity to all lawbreakers (governmental and private lawbreakers alike). That is plainly what the administration is after, and it is hard to have much hope that they will be denied what they seek. McConnell's comments yesterday suggested strongly that Democrats were prepared this last round to include immunity, but only requested more time to determine how best that should be done and to obtain some information they have sought about past eavesdropping ("the issue was all right, look, we don't want to work that right now, it's too hard because we want to find out about some issues of the past").
Basically, then, the administration's posture towards Congress is now this: "we have been refusing to provide you any information about what we did over the last six years, and we will provide you some of that information only on the condition that you agree to provide full immunity for the consequences of any lawbreaking." Between (a) the Democratic Congress completing its capitulation to the administration's demands by granting full immunity and (b) reversing themselves on FISA after the 6-month period elapses, it hardly requires much consideration to know which is the far more likely outcome.