Abuse of Power Posted by Morton H. Halperin

Last week as the administration scrambled to justify its sweeping NSA electronic surveillance directed at Americans, it engaged in behavior which led the usually compliant Fourth Circuit Court of Appeals to reject a government motion to transfer Jose Padilla from military to civilian custody.   

The panel led my conservative Judge Michale Luttig concluded that the government's unexplained and inexplicable actions "have given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decisions by the Supreme Court." panel opinion, at page 6).

Only by reading the governments most extensive defense of the constitutionality of its actions in conducting warrantless electronic surveillance can one understand why the administration is in fact desperate to avoid Supreme Court review of the Fourth Circuit's decision in the Padilla case.

Imbalance of Power Posted by Spencer Boyer

Spencer P. Boyer

Season's greetings.  Suzanne Nossel asked me to be a guest contributor while she is in South Africa. By way of background, I am a Fellow to the Security and Peace Initiative of the Center for American Progress and The Century Foundation.

President Bush defends his program of warrantless surveillance of Americans, in violation of the Foreign Intelligence Surveillance Act, by pointing to a 2001 congressional resolution authorizing him to use all necessary force against those responsible for the attacks of September 11, 2001. He also makes the case that, as Commander in Chief in a time of war, he has the power do whatever he sees fit, regardless of legal prohibitions, when he believes it is in the national interest to do so. Unfortunately, his actions are indefensible.

To start with, there is no ambiguity when it comes to FISA. Congress made it clear when it enacted the law in 1978 that the President must have a judicial warrant to eavesdrop on Americans. Congress clearly rejected the idea of inherent Presidential authority to conduct warrantless wiretaps in the U.S. and made such actions by the executive branch a crime.

The administration cites Congress’s 2001 use-of-force statute, which authorized the President to use “necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” as giving him the authority to conduct these warrantless searches on Americans. Attorney General Alberto Gonzales attempted to bolster this point by stating that domestic surveillance by the National Security Agency only occurs where there is a reasonable basis to conclude that one of the parties of the communication is a member of al Qaeda or otherwise affiliated. The administration’s points do not, however, make the domestic spying program any more legal.

As a general matter, a declaration of war, which we have not had since World War II, arguably triggers a range of common law-of-war authorities in addition to standby statutes keyed to “declared war,” “war,” or “time of war.” Use-of-force statutes, on the other hand, have less of a domino effect and do not trigger certain standby authorities, such as the power under the Alien Enemy Act to detain alien enemies, keyed to a declaration of war. But nothing in the 2001 congressional authorization, which was specific in its language, gives the President power to ignore the clear statutory prohibitions in FISA. FISA does allow the Attorney General to use warrantless wiretaps for fifteen days after a declaration of war. But even if the 2001 authorization was a declaration of war, which it was not, the surveillance would have been authorized for only that short period of time. 

In addition, in a Washington Post Op-ed on Friday, former Senate Majority Leader Tom Daschle rejects the notion that Congress intended the 2001 authorization to exempt the President from FISA. Senator Daschle, who helped negotiate the authorization, states that the administration tried, and failed, to insert language allowing for expansive Presidential powers in the U.S.  Thus, there can be no illusion concerning Congress’s intent.

This administration’s penchant for increasing executive power in the name of national security – denying prisoners access to lawyers or courts, indefinitely detaining individuals as enemy combatants, rejecting the applicability of the Geneva Conventions – continues to trample on civil liberties. If we are to accept President Bush’s claim, he could ignore any clear law he disagrees with during our war on terrorism, which could last for decades. The Constitution requires the President to take care that all laws are faithfully executed, not just the ones he likes. The Framers of our Constitution guarded against an abuse of power by the President by embedding governmental powers in a system of checks and balances. It is time for Congress and the courts to re-establish the equilibrium.

What WaPo Won't Tell Us... Posted by Heather Hurlburt

Blogger Michael Roston has summarized European press coverage to give us a much better idea of which Central European countries are housing secret CIA prisons.  And how did the enterprising European journalists get this information, considered too potentially dangerous for the Washington Post to publish?  Why, they called up old Tom Malinowski at Human Rights Watch, right there in Washington DC.  Human Rights Watch, recall, has been tracking those "rendition planes" and where they go.

Think maybe the Post was just a bit too deferential here?  Roston raises another excellent point:  Europe loves to criticize US mishandling of detainees; now will there be European investigations of what has happened on European soil?  Can the French physically expel the Poles from Europe?

The Senate and Phase Two Posted by Derek Chollet

Today an unusual thing happened in the U.S. Senate.  The normally well-scripted body, known for Senators inserting “colloquies” into the Congressional Record as though the debates really happened, went off the rails.  The Senate Democrats interrupted normal business and, without forewarning the Republicans, called a rare closed session to discuss intelligence in Iraq, sending the press into a frenzy.  Good for them.

The dispute in question is the so-called “Phase Two” of the Senate Intelligence Committee’s (or SSCI, pronounced in Hill-speak as “sissy”) investigation of intelligence about Iraq’s WMD programs.  “Phase One” of the Committee’s work was completed and released in July 2004, which focused on the collection and analysis of that intelligence.  At the time, the Democrats tried mightily to get the Committee investigators to turn to the more interesting questions – how policymakers in the White House actually used the intelligence they were given, or whether they knowingly manipulated it when presenting the case for war.  The Republicans on the Committee, led by their Chairman, Senator Pat Roberts of Kansas, pushed back, promising to pursue these issues down the road.  The Democrats knew that this slow-walking was a way to kill the effort, and have tried to pressure the other side to act ever since.

Last week’s Libby indictment provided the pretext they needed.  As Steve Clemons notes, this move was gutsy and important.  Roberts was flushed out (he certainly has been hearing from his Kansas constituents about Iraq, and my guess is that they are not happy), and announced that next week the SSCI will work continuously to “finish” Phase Two, which he claims they have been working on all along.  This is news to the SSCI’s ranking Democrat, Jay Rockefeller, who today placed his relaxed demeanor aside and put on a tough performance.  Is the logjam broken?  Who knows – as the timeline pasted below attests, the Democrats have been trying to get Roberts to move on this for years, to no avail.  As the 9-11 Commission report accurately put it, the Congressional oversight on intelligence is “dysfunctional.”  So we’ll see.

Iraq Intelligence Investigation Timeline

Attached is a chronology prepared by Democratic staff of the Senate Intelligence Committee about Democratic efforts to address the Administration’s misuse of intelligence.

For more than two years, Senate Democrats have pressed Republicans to address the misuse of intelligence.  At every turn, Republicans have blocked efforts to investigate how intelligence was used in the run-up to the war in Iraq.  Below details the long record established by Democrats to investigate this matter.

March 14, 2003 – Senator Rockefeller sent a letter to Director Mueller requesting an investigation into the origin of the Niger documents.

May 23, 2003 – Senators Roberts and Rockefeller sent a letter to the CIA and State Department Inspectors General to review issues related to the Niger documents.

June 2, 2003 – Senator Rockefeller issued a press release endorsing a statement made of the previous weekend by Senator Warner calling for a joint SSCI/SASC investigation.

June 4, 2003 – Senator Rockefeller issued a press release saying he would push for an investigation.  Senator Roberts issued a press release saying calls for an investigation are premature.

June 10, 2003 – Senator Rockefeller sent a letter to Senator Roberts asking for an investigation.

June 11, 2003 – All Committee Democrats signed a letter to Senator Roberts asking for a meeting of the Committee to discuss the question of authorizing an inquiry into the intelligence that formed the basis for going to war.

June 11, 2003 – Senator Roberts issued a press release saying this is routine committee oversight, and that criticism of the intelligence community is unwarranted.  Senator Rockefeller issued a press release calling the ongoing review inadequate.

June 20, 2003 – Senators Roberts and Rockefeller issued a joint press release laying out the scope of the inquiry.

August 13, 2003 – Senator Rockefeller sent a letter to Senator Roberts making 14 points about the investigation, asking to expand the inquiry to address the “use of intelligence by policy makers” and asking for several other actions.

September 9, 2003 – After press reports quoting Senator Roberts as saying the investigation was almost over, Senator Rockefeller sent a letter to Senator Roberts urging him not to rush to complete the investigation prematurely.

October 29, 2003 – Senators Roberts and Rockefeller sent a letter to Director Tenet expressing in strong terms that he should provide documents that have been requested and make individuals available.

October 30, 2003 – Senators Roberts and Rockefeller sent letters to Secretaries Rumsfeld and Powell, and National Security Advisor Rice expressing in strong terms that they should provide documents that have been requested and make individuals available.

October 31, 2003 – Senator Rockefeller sent a letter to Director Tenet asking for documents related to the interaction between intelligence and policy makers, including the documents from the Vice President’s office related to the Powell speech.

November 2, 2003 – Senator Roberts made statements during a joint television appearance with Senator Rockefeller claiming that the White house would provide all documents they jointly requested.

December 5, 2003 – Senator Rockefeller sent a letter to National Security Advisor Rice asking for her help getting documents and access to individuals.

January 22, 2004 – Senator Rockefeller sent a letter to Director Tenet asking for compliance with the Oct. 31 request for documents.

February 12, 2004 – Senators Roberts and Rockefeller issued a joint press release announcing the Committee’s unanimous approval of the expansion of the Iraq review, to include use of intelligence in the form of public statements, and listing other aspects of what became Phase II.

March 23, 2004 – Senator Rockefeller sent yet another letter to Director Tenet asking for compliance with the Oct. 31 request for documents.

June 17, 2004 – Senators Roberts and Rockefeller joint press release announcing the unanimous approval of the report.

July 16, 2004 – Committee Democrats sent a letter to Bush asking for the one page summary of the NIE prepared for Bush.  The Committee staff had been allowed to review it but could not take notes and the Committee was never given a copy.

February 3, 2005 – Senator Rockefeller sent a letter to Senator Roberts outlining Committee priorities for the coming year and encouraging completion of Phase II.

August 5, 2005 – Senator Rockefeller sent a letter to Senator Roberts expressing concern over the lack of progress on Phase II and calling for a draft to be presented to the Committee at a business meeting in September.

September 29, 2005 – All Committee Democrats joined in additional views to the annual Intelligence Authorization Bill criticizing the lack of progress on Phase II.

Intelligence Manipulation: If at first you don't succeed, you're off the hook Posted by Suzanne Nossel

Check here for my take on the Bush Administration's astounding logic on why people like John Bolton haven't actually manipulated or politicized intelligence.

Bad Intel, Bad Policy Posted by Derek Chollet

We should all pay more attention to the recent report of the bipartisan presidential commission chaired by Laurence Silberman and Chuck Robb regarding U.S. intelligence and WMD threats.  It got a couple of days of buzz when it was released a few weeks ago -- especially for its no-nonsense conclusion that all the pre-war judgments about Iraq's WMD were "dead wrong" – but has pretty much dropped out of sight since.  At over 600 pages, it’s not exactly bedtime reading.

But like the 9-11 commission, this group has produced a rare kind of government report: compelling, hard-hitting, clear, provocative, and actually pretty entertaining.  But it is also really scary.  The commissioners conclude that there is no greater threat than the spread of nuclear, biological and chemical weapons (placing special emphasis on the threat from biological weapons, which they describe as the “greatest intelligence challenge”).  Yet they show with great detail that our intelligence community is not sufficiently trained, motivated, equipped, or organized to deal with these threats.  Even if we had an Administration intensely focused on the WMD threat, the limits of our intelligence capabilities would leave still leave us fighting with one hand tied behind our backs. 

Right now, we have the worst of both worlds: an intelligence community that is not up to the challenge, and an Administration that talks a good game but is still not making counter-proliferation the priority it needs to be.  As Ash Carter points out, until we get the policy right, it really doesn’t matter if intelligence is imperfect.   Folks, I gotta tell you, we should be genuinely worried about getting hit with some sort of WMD device (for a very scary illustration of what this might be like, everyone should watch the recent HBO/BBC film “Dirty War”).  The American people understand the problem – according to the recent SPI/Marttila poll, 3 of the top 5 concerns most American have about the world have something to do with the spread of nuclear weapons.  So where's the outrage?  There’s a lot I really don’t understand about the Bush Administration, but not doing more to address the WMD threat – especially when we know what to do about it – is the most perplexing, and I think its greatest long-term failure.