Bush Defends Breaking the Law

by DemFromCT

At some level the WH realizes they're stepped in it, and that key elements of the country are not buying their story. Despite a press conference and multiple interviews, along with the Saturday radio address, it looks like he's lost Specter:

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, said, "I am skeptical of the attorney general's citation of authority, but I am prepared to listen."

Mr. Specter, who has said he will hold hearings on the program soon after the confirmation hearings for the Supreme Court nominee, Judge Samuel A. Alito Jr., said he did not believe the president's decision to inform a handful of members of Congress was sufficient.

"I think it does not constitute a check and balance," he said. "You can't have the administration and a select number of members alter the law. It can't be done."

Mr. Specter also predicted that the domestic spying debate would spill over into Judge Alito's confirmation.

"The fat's in the fire," Mr. Specter said. "This is going to be a big, big issue. There's a lot of indignation across the country, from what I see."

What's that got to do with Alito? This:

I did mention Alito, which is probably why you've read this far. Here's where Alito fits in: My brother-in-law, an actual attorney, called my attention to another case in the same line as Keith: Mitchell v. Forsyth. This case also flows from Nixon-era wiretapping, but wasn't decided until 1985. It's mainly relevant to the question of executive-branch immunity. The Court found that Attorney General Mitchell enjoyed qualified immunity from lawsuits or prosecution for the wiretaps, but only because the constitutional issue had not been clear at the time of the wiretaps, when Keith had not yet been decided.

...

My brother-in-law noted that the case identifies the lawyers involved as follows: "Deputy Solicitor General Bator argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Willard, Samuel A. Alito, Jr., Barbara L. Herwig, Gorden W. Daiger, and Larry L. Gregg." Given that Alito is the first working lawyer listed -- as opposed to SG, Deputy SG, AAG -- and the others are not in alphabetical order, it's probably a good guess that he drafted the brief arguing for absolute immunity.

Alito's views of executive power should be a major, major topic at the hearings.

And as Laura Rozen points out, Alito's not looking so good lately anyway. Well, the story's the spying, and it doesn't look like the firestorm isn't going away any time soon. Let's see how the Bush defenders try to salvage this one. After all, Congress is up for reelection and their standing is even lower than Bush's. So what are they going to do about it? Hearings and the other trappings of oversight would certainly be a move in the right direction. After all, it couldn't happen to a nicer bunch of crooks and liars.

Comments

[Mimikatz]

Yes, the Judiciary Committee will get the first crack via the Alito hearings. A national platform to begin to raise the issues of the limits on eexecutive power. Then Intelligence will want to hold more technical hearings on the program itself. Pat Roberts better clear his calendar--get that little phase 2 report done before the Intell Committee hearings begin.

I keep thinking that the public will be fed up sooner or later. It is hard to understand how they can not be, given how hard so many people are struggling these days, as Congress votes another $60 billion in tax cuts for the very, very rich. And the sheer magnitude of the Abramoff/DeLay/defense contracting scandals.

No wonder Bush looks peaked.

[texas dem]

I really don't know anything, but I find all this interesting so I'm going to comment anyway.

I'm guessing that Bush's eventual defense is going to be: "Yes, I datamined. There was no law allowing me to, but the laws were from 1978 and this is new technology and I chose to deploy it in defense of my country." Except for the fact that he's given no particulars on what he did, that's already his defense.

Our countercharge looks like it might be "Butbutbut, you broke the law damnit!" It'd be nice if it was "You broke the law and you acted alone and you didn't really need to." I'm wondering if there's room for that.

Specifically, Bush might be right to say that we don't really have statutes that cover some of our newer technologies well. For instance, it seems like FISA courts really wouldn't be suitable for datamining. The whole name-a-suspect / get-a-warrant-from-a-judge / conduct-a-search model doesn't apply to datamining, and yet, datamining really might be a useful defensive tool.

So would there be a right way to do this? A right road that we can say Bush should have taken, instead of breaking the law in secret?

The basic tension in all of these situations is that you want to create power for the government to protect us from bad guys, but you don't want to see that power abused by government against its own citizens. It's need for tools versus potential abuse of tools.

The warrant naming an individual in advance of the search isn't actually sacred then; it's an instrument for advancing the larger need to prevent the abuse of power. In a different context, a different way to protect that goal might be needed.

If your new context is datamining, then maybe the way to prevent the government from using its toys against domestic political opposition is to make the government get a warrant for search terms, instead of named suspects. So valid national security searches -- based on bits of information gleaned from KSM's computer, for instance -- would get cleared, but searches like "Texas+Senators+redistricting+flee+NewMexico" (or "peace+activist+rally+civil+disobedience" or "Kerry+campaign+strategy") would be nixed by the judge. Then we'd have a layer of judicial protection from the abuse of power, same as FISA.

That would protect us from abuse of power by the executive but still allow the new tool to be deployed. The Total Information Awareness stuff -- credit card purchases, hotel bills, book purchases -- may never be appropriate, but datamining email actually might have been workable. If so, then that would move the Bush Admin's error back to where it always is: assuming they're the only hardminded people around, assuming no one would ever allow them to "take the gloves off," and assuming that they're going to have to break the rules in secret to get anything done. That's a foolish attitude, and it takes us very close to the secret unrestrained government that is the heart of all these rational fears anyway. They're creating conditions perfect for the abuse of power against domestic opponents, even if they themselves really weren't going to cross that line.

If it turns out that there could have been a rational right way to do this, then their crime is no longer overzealous defense of Amurcans, and their defense is no longer martyrdom. Now their crime is secrecy and arrogance and reckless treatment of a carefully maintained balance of governmental power. Their defense is "we were fools but we had good intentions," and their punishment is more severe because their judgment was, in some ways, worse.

I have no idea if there's a workable way to use datamining, or if it's really as valuable a tool as the Bushies seem to think it is. If it is valuable, and there is a sensible balance to be found that allows its use, then we have caught Bush having made a very bad judgment. I don't want to allow him the defense "but I had to," cause if it is a real tool, then I'm vaguely confident there would have been a right way to do this.

Thoughts from those who actually understand these issues? Is datamining categorically beyond the pale for reasons I haven't encountered, or just useless, or workable with the right balances in place, or what? Hell, I don't even know exactly what they were searching. Was it email or phone transcripts?

I don't understand these issues, but I do imagine there would have been a right way to act. There usually is. If somebody has it identified, then the accusation against them is stronger.

Thanks guys.

[Chuck Dupree]

It's always a trip to see Sen. Magic Bullet take a stand for civil liberties.

"You can't have the administration and a select number of members alter the law. It can't be done."

Should be true, but isn't completely. In fact, the law that created the NSA was not allowed to be read by most members of Congress. A select number of members read the law, and assured the rest that they should vote for it, which they proceeded to do.

No Such Agency has long been involved in skirting, and sometimes flouting, the law. Bush's current use of it reminds me of Nixon's Huston Plan and the other Tricky Dick strategies.

Perhaps we'll end up with Scourged George…

[emptywheel]

texas dem

I actually have been thinking along those lines. We're going to get to a point quickly where data mining would be a valuable tool in fighting terrorism. But before you get there, our data needs to be secure (it's not--I just received notice from my mortgage company that someone's got my data!), and that you can search on data independent of identity.

But the other thing you need is some kind of real data. In my post on this, I'm suggesting that, rather than working from a massive amount of data and discovering the patterns that result in terrorists, they are probably taking a very limited set of data (that found on KSM's laptop, for example) and building their pattern off that. It's as if a statistician took his most important interpretation from an interview with one voter, and then based on that one voter's beliefs as a lens, analyzed his data trends. Statistics (and data mining) only works if you START with large amounts of data, if you discover patterns from large numbers.

I actually think they might have been able to approve TIA-International. And they were, apparently, able to approve Able Danger. But I strongly suspect they're working with a theory of data mining that wouldn't be accepted by analysts of it. And then, based on that perverted use of data mining, they're tapping US citizens.

[DemFromCT]

The PoliZoo link above (thanks) alsdo has some excellent 'across the political spectrum' links in it. Check out Volokh.

[janinsanfran]

The trouble with all this datamining is that at some point some human being is going to have determine whether the "information" extracted from it has any meaning. And since 9/11 these guys have repeatedly shown they can't tell a terrorist from a Muslim day laborer -- or a peace activist. This story is just the high tech version of the other story of the day, the documents the ACLU has extracted showing a pattern of spying on activists -- probably because government agents honestly can't tell the difference between Osama and any brown guy or a Catholic Worker and a Commmunist.

[DemFromCT]

Well, Quaker and al Queda both are something to do with religion and are spelled with a Q.

[jonnybutter]

Isn't 'reverse datamining' (if that is indeed what they were doing) a classic fishing expedition? Unless it's very sophisticated (I guess?) it seems to me to be conceptually irrational because you don't necessarily know which patterns are useful. You generate patterns because you *can*, not because they're valuable. I sense some logical fallacies here. The very idea of reverse datamining - as I understand it, which isn't very much! - is kind of like arguing from authority, except the authority in this case is software, making it seem unimpeachable ('it's *objective* data!'). It's the old 'garbage in, garbage out' principle. And the patterns you create are vulnerable to the syllogistic error of the undistributed middle.

Whatever the utility of this stuff, it's pretty obvious to me that Bush, Cheney and their theorists fundamentally don't understand what kind of government they run (a liberal democracy). Whether they could've gotten legal sanction for this stuff or not, they didn't try nor, probably, even consider it. They don't understand and don't like our form of government.

[p.lukasiak]

I'd like to suggest another possibility...that these "taps" were actually "hacks" --- that the government was going into computers of "suspect" persons remotely, and collecting information from the files therein, and examining it.

The initial reports on this program made it seem like the problem was a "six degrees of separation" thing -- if someone's phone number was in a cell phone, their phone would be tapped under FISA, but the secret program would tap the phone of everyone that the original personal called -- and everyone that this third person called as well.

But the "technology" aspect suggests something entirely different...