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Frank Church and the Abyss of Warrantless Wiretapping

Thirty years ago, on April 26, 1976, the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, delivered its final report detailing the lawlessness of U.S. intelligence agencies and the need for Congress to reassert the Constitutional system of checks and balances to order to rein in the cloak-and-dagger excesses of the executive branch of the federal government.

The committee, mercifully referred to by the last name of its chair, U.S. Senator Frank Church, D-Idaho, produced fourteen reports on the formation of U.S. intelligence agencies, the manner in which they had and were continuing to operate, and the abuses of law and of power -- up to and including murder -- committed by these agencies in Chile, the Congo, Cuba, Vietnam and other nations that experienced the attention of U.S. authorities in the Cold War era.

The committee also made 96 recommendations for how to do that. Some of those recommendations, such as the committee's call for creation of a permanent Senate Select Committee on Intelligence and for a ban on assassinations of foreign leaders, were implemented. But, as the current controversy over President Bush's warrantless wiretapping program illustrates, the potential abuses about which the Church Committee warned were not entirely -- nor even adequately -- thwarted.

It was not for lack of trying by Senator Church, one of the most courageous legislators in American history, and his colleagues on the committee. As Senator Church said when the committee completed its work: "The United States must not adopt the tactics of the enemy. Means are important, as ends. Crisis makes it tempting to ignore the wise restraints that make men free. But each time we do so, each time the means we use are wrong, our inner strength, the strength which makes us free, is lessened."

The fundamental charge of the Church Committee to the Congress and the American people was not found in the details of the reports specific allegations and recommendations. Rather, it was in the committee's bold reassertion of the founding principle of the Republic -- that only by checking and balancing the excesses of the executive branch can basic liberties be defended.

To renew the inner strength of the nation, the Church Committee first recalled the threats that arise when the executive branch is allowed to operate in secrecy and without constraint:

The natural tendency of Government is toward abuse of power. Men entrusted with power, even those aware of its dangers, tend, particularly when pressured, to slight liberty.

Our constitutional system guards against this tendency. It establishes many different checks upon power. It is those wise restraints which 'keep men free. In the field of intelligence those restraints have too often been ignored.

The three main departures in the intelligence field from the constitutional plan for controlling abuse of power have been:

(a) Excessive Executive Power.

In a sense the growth of domestic intelligence activities mirrored the growth of presidential power generally. But more than any other activity, more even than exercise of the war power, intelligence activities have been left to the control of the Executive.

For decades Congress and the courts as well as the press and the public have accepted the notion that the control of intelligence activities was the exclusive prerogative of the Chief Executive and his surrogates. The exercise of this power was not questioned or even inquired into by outsiders. Indeed, at times the power was seen as flowing not from the law, but as inherent, in the Presidency.

Whatever the theory, the fact was that intelligence activities were essentially exempted from the normal system of checks and balances. Such Executive power, not founded in law or checked by Congress or the courts, contained the seeds of abuse and its growth was to be expected.

(b) Excessive Secrecy.

Abuse thrives on secrecy. Obviously, public disclosure, of matters such as the names of intelligence agents or the technological details of collection methods is inappropriate. But in the field of intelligence, secrecy has been extended to inhibit review of the basic programs and practices themselves.

Those within the Executive branch and the Congress who would exercise their responsibilities wisely must be fully informed. The American public, as well, should know enough about intelligence activities to be able to apply its good sense to the underlying issues of policy and morality.

Knowledge is the key to control. Secrecy should no longer be allowed to shield the existence of constitutional, legal and moral problems from the scrutiny of all three branches of government or from the American people themselves.

(c) Avoidance of the Rule of Law.

Lawlessness by Government breeds corrosive cynicism among the people and erodes the trust upon which government depends.

Here, there is no sovereign who stands above the law. Each of us, from presidents to the most disadvantaged citizen, must obey the law. As intelligence operations developed, however, rationalizations were fashioned to immunize them from the restraints of the Bill of Rights and the specific prohibitions of the criminal code. The experience of our investigation leads us to conclude that such rationalizations are a dangerous delusion.

Senator Church was even blunter in his rejection of the "spin" that would have Americans believe their government is protecting them or spreading democracy when it employs secret electronic eavesdropping at home or "covert action" abroad. Covert action, explained the Idaho Democrat, is nothing more than "a semantic disguise for murder, coercion, blackmail, bribery, the spreading of lies, whatever is deemed useful to bending other countries to our will."

The Church Committee's plan to counter the abuses of the executive branch boiled down to a call for Congress to recognize anew that:

The Constitutional amendments protecting speech and assembly and individual privacy seek to preserve values at the core of our heritage, and vital to our future. The Bill of Rights, and the Supreme Court's decisions interpreting it suggest three principles which we have followed:

(1) Governmental action which directly infringes the rights of free speech and association must be prohibited. The First Amendment recognizes that even if useful to a proper end, certain governmental actions are simply too dangerous to permit at all. It commands that "Congress shall make no law" abridging freedom of speech or assembly.

(2) The Supreme Court, in interpreting that command, has required that any governmental action which has a collateral (rather than direct) impact upon the rights of speech and assembly is permissible only if it meets two tests. First, the action must be undertaken only to fulfill a compelling governmental need, and second, the government must use the least restrictive means to meet that need. The effect upon protected interests must be minimized.

(3) Procedural safeguards -- "auxiliary precautions" as they were characterized in the Federalist Papers -- must be adopted along with substantive restraints. For example, while the Fourth Amendment prohibits only "unreasonable" searches and seizures, it requires a procedural check for reasonableness-the obtaining of a judicial warrant upon probable cause from a neutral magistrate. Our proposed procedural checks range from judicial review of intelligence activity before or after the fact, to formal and high level Executive branch approval, to greater disclosure and more effective Congressional oversight.

It is notable that Senator Church was especially concerned about the threat posed by the National Security Agency if a future president were to abuse those powers.

"I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss," explained Church. "That is the abyss from which there is no return."

Three decades after the Church Committee submitted its final report, President Bush admits to ordering the NSA to spy on the telephone conversations of Americans on American soil without obtaining warrants.

Most of Congress stands idly by.

Not so the senator who has most aggressively challenged the Bush administration's reckless disregard for the Constitution that provides Americans with both a Bill of Rights and a system of checks and balances to protect them.

Senator Russ Feingold, the Wisconsin Democrat who has asked the Senate to censure Bush for ordering the NSA to launch the warrantless wiretapping program, marked the anniversary of the issuance of the Church Committee's final report by describing the committee's work and the challenge to executive excess that it produced as "a watershed moment that spurred Congress to assume its critical role in overseeing the U.S. intelligence community." In particular, he noted, "The Church Committee's report also led to legislation requiring the executive branch to inform the congressional intelligence committees of all intelligence activities."

"Yet," Feingold added, "for over four years, the Bush Administration has ignored this law, hiding its illegal warrantless surveillance program from the full committees, and continuing to deny the committees critical information. At a time when Congress has failed to assert its constitutional and statutory role in conducting intelligence oversight, we should recall the groundbreaking efforts of the Church Committee, and the responsibilities that came with the establishment of the congressional intelligence committees. The American people have entrusted us to protect them from our enemies while ensuring that our government upholds the law and the Constitution. We must renew our commitment to that charge. As Senator Church said 30 years ago today, ‘Our experience as a nation has taught us that we must place our trust in laws, and not solely in men. The founding fathers foresaw excess as the inevitable consequence of granting any part of government unchecked power.'"

Another Republican Ditches Bush

Rep. Dana Rohrabacher was Jack Abramoff's best friend in Congress. The two were so close that Rohrabacher was the only member of Congress to sign a letter asking a federal judge to give Abramoff a reduced sentence.

"Over many years, I've known a far different Jack that the profit-seeking megalomaniac portrayed in the press," Rohrabacher wrote. "Jack was a selfless patriot for most of the time I knew him."

But when President Bush visited Rohrabacher's Orange County locale yesterday to pitch immigration reform, the OC Congressman wanted nothing to do with W.

"I don't want to be behind him looking glum and not applauding," Rohrabacher told the LA Times. "So as not to be rude to the president---which I think is inexcusable---I think I'll just be staying away."

Wow. Is Rohrabacher insinuating that Jack Abramoff is less toxic than President Bush?

As political scientist John Pitney said of the White House: "I'm not sure they had their OC antennae up."

UPDATE: Also see New York Times today: "Once Boon, Ties to Bush May Be Bust."

White House Shuffle

After a week spent manhandling the Chinese President and kicking ScottMcClellan to the curb, The Decider finally got around to downsizing his brain. Karl Rove is giving up his policy role to focus on politics, a distinction without a difference in this White House.

With even Fox News reporting Bush's poll numbers (33 percent) threatening tofall below the Nixon line (28 percent), the best thing Bush could do for hisbeloved Republican majority is decide to resign. Or failing that, sincehe fails at almost everything he tries to do, Bush could simply fireRove the way the CIA fired Mary McCarthy. After all if Ms. McCarthy wasfired for a 'pattern' of inappropriate contact with reporters, thensurely Rove deserves the boot. Everything he does is inappropriate.

Instead we've learned that the Bolten recovery plan to bump up Bush'snumbers includes extending the tax cut for capital gains and stockdividends and more tours of the country to "brag" about the strength ofthe economy. This makes a certain amount of sense, since the onlyAmericans who will be able to afford a tank of gas to go see thepresident will be those who are rich enough to be affected by the taxcut on stocks.

Oh, and one more thing. The Bushies want to regain their securitycredibility by threatening Iran with war.

The White House can shuffle all it wants, but we've seen this dancebefore.

Nuclear Madness

First the Bush Administration undermines the Nuclear Non-Proliferation Treaty (NPT) by supplying India with nuclear technology, then it flirts with the use of tactical nuclear weapons against Iran.

The Administration's reckless nuclear politics has led thirteen of the nation's pre-eminent physicists--including five Nobel laureates--to join generals and intelligence officers as the latest to speak out.

In a letter to President Bush--barely reported in the media--the scientists call the planned use of nuclear weapons against Iran "gravely irresponsible" with "disastrous consequences for the security of the United States and the world." They note that "the NPT will be irreversibly damaged by the use or even the threat of use of nuclear weapons by a nuclear nation against a non-nuclear one…."

Further highlighting just how dangerously out-of-step the Bush administration is with a sane nuclear policy, one-time hardliner and Reagan administration arms negotiator, Max Kampelman, called for the elimination of all weapons of mass destruction in a New York Times op-ed on Monday. "I have never been more worried about the future for my children and grandchildren than I am today," he writes. (For a moment, I thought Kampelman was channeling Jonathan Schell's extraordinary Nation special issue calling for the abolition of nuclear weapons.)

The hypocrisy of the Bush Administration in dealing with Iran is staggering. On the one hand it speaks of diplomacy while it also secretly plans regime change and the use of tactical nuclear weapons. And all the while the charge is led by a little man/would-be cowboy with a messianic vision who finds himself at the helm of the most powerful nation in history.

The least we must do as citizens at this critical moment is follow the lead of these wise physicists and demand that our representatives call for publicly taking the nuclear option against non-nuclear adversaries off of the table. And then we should heed Kampelman's call to bring back a measure of idealism to our politics, and "find a way to move from what 'is'--a world with a risk of increasing global disaster--to what 'ought' to be, a peaceful, civilized world free of weapons of mass destruction."

If a former Reaganite can summon the imagination to envision such a world, so must we.

Bush Enters Border Fray

With the Senate coming back from its recess, will it now pick up from where it left off two weeks ago and finally get around to passing comprehensive immigration reform?

Under pressure from poll-afflicted Republicans, President Bush directly entered the fray this week by endorsing the general outlines of reform: a guest worker program, legalization of the undocumented already here, and tougher enforcement at the border as well as in work sites.

There's been a definite shift in public opinion in the past few months toward liberalizing current immigration policy. And the fact that Senate Republicans have recruited the President to pressure a more recalcitrant House is evidence that at least some in the GOP are ready to reach an acceptable compromise.

This is far from a perfect situation. But we should take our victories where and when we can get them. Pro-reform advocates have made historic progress in moving this issue forward. We're a long way now from last decade's dark days of Pete Wilson winning re-election on the xenophobic slogan of "they keep coming." Read the whole story here.

Springsteen Rocks Pete Seeger and the Folk Tradition

It's as if Bruce Springsteen rounded up the Preservation Hall Jazz Band, gospel legend Clara Ward, and Bill Monroe and His Blue Grass Boys, took them to an undisclosed hideaway (perhaps a juke joint in the backwoods), tossed them old vinyl of Pete Seeger's songs, and said, "This is what we'll be playing." Then he recorded the results for his new album, The Seeger Sessions: We Shall Overcome.

When Springsteen's operation first disclosed in March that his next project would be a collection of songs identified with the folk-singing legend, it was easy to assume that Springsteen was about to release an overly earnest set of ballads, perhaps stripped down in the style of his just-me-and-my-guitar-alone-at-night Nebraska disc. Was he an aging rocker returning to the noble and elegant simplicity of folkie roots? And if so, why was he reaching back to Seeger? Why not Woody?

But in celebrating Seeger, Springsteen concocted not a post-Mighty Wind effort to birth yet another folk revival. Instead, he cooked up an amalgamation of American musical styles that places Seeger and the folk tradition he has tirelessly served for decades in the center of a much larger (and more rollicking) universe. It was an intriguing calculation. This ain't your father's Pete Seeger.

Springsteen took the old-timey songs that Seeger popularized--some that are known to us from nursery school sing-alongs, some from protest marches--and cast them in wide-sweeping arrangements that mixed bluegrass, gospel, New Orleans jazz, R&B, and rock. Explaining why he focused on Seeger, Springsteen told The New Yorker, "Pete's library is so vast that the whole history of the country is there....Everything I wanted, I found there." But Springsteen has taken that songbook and thrown it into a blender with an assortment of American musical elements.

Folk purists--and you know who you are--might cringe. This is not Springsteen strumming along the path that Seeger and others strummed. This is not Springsteen abiding by one of the old rules of folk music: performers should make music the way their listeners could do at home with their own friends and kin. He has pumped up and orchestrated these saved-by-Seeger classics. That might cause some offense. Seeger always said the song was the deal, not the singer. The musician was merely the medium through which a living song--embodying the spirit of those who had sung it before--was passed along to the next generation. A critic could perhaps charge Springsteen with overpowering these songs--juicing them up too darn much with all those guitars, fiddles, banjoes, crashing cymbals, drums, organs, a horn section, and big-voiced background singers. But that would be a question of taste. I'd happily sign up for any choir that believes that keeping a song alive by making it swing is indeed a public interest endeavor. And these real-time, one-take, jam-session recordings--especially the gospel-infused "Jacob's Ladder" and "O Mary Don't You Weep"--do swing. A preservationist ought to get points for that.

Springsteen's song selection (of Seeger's song selection) emphasizes the range of folk songs: ballads, reels, spirituals. There are silly songs ("Old Dan Tucker" and "Froggie Went A Courtin'") storytelling tunes ("Jesse James," "John Henry") and serious numbers ("We Shall Overcome"). Springsteen, who has written topical songs of his own ("American Skin," "Streets of Philadelphia," "The Ghost of Tom Joad," "Youngstown"), recorded and performed protest songs ("War," "This Land Is Your Land"), and campaigned for one presidential candidate (John Kerry), doesn't overdo the political-preaching side of folk music. He focuses, as Seeger often did, on its communal nature--the transmission of stories and voices, not necessarily overt messages. It's true that Seeger cannot be separated from his politics; he sang to make people feel empowered. And he was persecuted for being a communist and prosecuted for refusing in 1955 to testify before the House Un-American Activities Committee about his political views and affiliations. Refusing to invoke the Fifth Amendment, he said to the committee, "I will be glad to tell what songs I have ever sung, because singing is my business...But I decline to say who has ever listened to them, who has written them, or other people who have sung them." Seeger was sentenced to a year in jail for contempt of Congress. In 1962 the verdict was overturned; he remained blacklisted for years. But years before that, he and the Weavers had a number-one pop hit with the toe-tapping and unradical "Goodnight Irene," and his children's songs have helped out many a parent for decades.

With the Seeger Sessions, the Boss gets in a few send-a-message licks. On "Mrs. McGrath," a 19th century Irish song about a war amputee--that is, about a mother's sorrow for the missing legs of her son--Springsteen, singing as that mother, declares, "Oh, foreign wars, I do proclaim/leave only blood and a mother's pain/I'd rather have my son as he used to be/than the King of America and his whole Navy." That's certainly not how the Irish Republicans sang this tune (which originally focused on the Peninsular campaign of the Napoleonic Wars.) His version of "We Shall Overcome" avoids "Kumbaya"-like sentimentality and comes across as a prayerful lullaby--not a tune of idealistic optimism, but one of cautious hope, a rendition for these days not the 1960s. His "Eyes On the Prize" is a quiet, gritty and growling declaration of defiance--again, an arrangement appropriate for the present moment. Springsteen purposefully eschewed "If I Had a Hammer," believing any version of this well-known classic would overwhelm the other cuts.

In the end, the album is not so much a tribute to Seeger the performer and musician as it is to the history of American song and its assorted stylings. (It could have been called The American Song Sessions.) One could argue that by focusing so much on Seeger, Springsteen distracted from his larger goal. Still, choosing the 86-year-old Seeger as the common thread in this crazy quilt is a brilliant homage.

Rock music, in its essence, is about yearning, and Springsteen the rocker frequently captured that fundamental. Folk music, in a way, is about becoming. To be corny about it, America becoming America--whether it's a song chronicling a specific slice of the nation's history (say, the era of the barge workers of "Erie Canal") or a song capturing the stories and sentiments that gripped the imagination and hearts of Americans who lived in earlier times (say, the longing for home of "Shenandoah"). Seeger has devoted much of his life to preserving and promoting this social history. Springsteen, with this album, has, yes, earnestly pursued a similar mission. But he's not taking dictation. He allowed Seeger's songs to inspire him, as he brewed a bastard's mix of American music.

Does the Washington Post Read Its Own Business Columnist?

Maybe it was Exxon's CEO raking in $144,573 a day in compensation that moved mainstream media outlets to look more closely at the way corporations are shredding their social contract with workers?

Just the other day, Washington Post business columnist Steven Pearlstein argued that it's high time corporate America confronts the question: "What is the new social contract it has to offer around which a stable political business model can be built?"

"Either the members of the business community," Pearlstein writes, "will have to come up with an improved social contract that allows them to run competitive companies while ensuring that the gains of globalization are spread more equitably, or they will have to face the almost certain prospect that angry and anxious voters will roll back globalization.... " He ends by warning the CEOs of the world-- ones like Jim Owens of Caterpillar-- that they better show some "backbone and ingenuity in dealing with the excessive and unreasonable demands of Wall Street..."

That's a good idea. Yet Pearlstein's own newspaper thinks the very idea that companies might bear some responsibility for the shredded social contract is ludicrous. In its Sunday editorial about inequality and what to do about it the Washington Post argues, "To blame corporations for ripping up the social contract is to misunderstand their function." Here's hoping the Post editorial page starts listening to its paper's business columnist.


Nation Event Note

The Nation is visiting Yale University on Wednesday, April 26. Click here for details on two public events featuring Katrina vanden Heuvel.

When Will James Dobson See The Light?

In her smart Los Angeles Times op-ed, "E-Gitator" Laurie David (as she was dubbed in a lavish spread in Vanity Fair's current "Green Issue,") observes that "the issue of global warming is finally catapulting toward a tipping point. With the debate firmly behind us, the focus is turning to solutions....the dots are finally being connected and global warming is fast becoming recognized as the most critical issue of our time."

David goes on to note that "the only place not feeling the heat is the White House..the Bush Administration is unmoved." But I'd argue that the Bush administration has already conceded that climate change is real. Why? Because they treat information about climate change the way they treat the truth about the Iraq war. They scrub data from websites. They rewrite science with political spin. And they give scientists like James Hansen at NASA what I would call the "Shinseki treatment"--they silence them; cut them off from reporters.

The global, fact-based evidence is too overwhelming, and the public is ready to deal with this problem, even if the administration can't or won't.

Even some (moderate) evangelicals have seen the light. In February, the Evangelical Climate Initiative was formed. Its mission: advocating personal, religious and commercial action to combat global warming.

But just in time for Earth Day, a new coalition of evangelical leaders --with close ties to the Bush White House--have launched a campaign to try to persuade pastors and churchgoers that concerns about global warming are unfounded. The Interfaith Stewardship Alliance, supported by Focus on the Family founder James Dobson, says it will provide information to parishioners and try to influence sermons.

Maybe the escalating battle among evangelicals over the environment and global warming will produce some moral heat and light. In the meantime, let's expose Dobson and acolytes for what they are: The deniers and procrastinators of our age.


Nation Event Note

The Nation is visiting Yale University on Wednesday, April 26. Click here for details on two public events featuring Katrina vanden Heuvel.

New Orleans in Black and White

The atomization of New Orleans has done more to destroy the political fabric of the post-Katrina city than even some of the most concerned observers had dared imagine.

In a community that last elected a white mayor when Richard Nixon was serving as president, three white candidates – Louisiana Lieutenant Governor Mitch Landrieu, wealthy civic leader Ron Forman and Republican lawyer Rob Couhig – collected 56 percent of the vote in the first mayoral vote after last fall's hurricane swept much of the city's minority population away to Houston, Atlanta and more distant locations.

With turnout among the African-American diaspora low, Mayor Ray Nagin, the most prominent African-American candidate, won just 38 percent. He'll face Landrieu, who took 29 percent, in a May 20 runoff election.

This is the first time since 1982 that a New Orleans mayor has been forced into a runoff, and if the May voting breaks along racial lines, the incumbent could become another victim of Katrina.

Will such a split occur?

Certainly the federal government, which should have worked from the start to assure that a natural disaster did not shift the political dynamic in a major American city that has long been under Voting Rights Act oversight, has done little to avert it.

From the White House's shifting of funds away from infrastructure programs that could have protected the city's poorest neighborhoods, to President Bush's initial neglect of the crisis, to the move-‘em-on-out response of federal agencies to the plight of displaced residents, to House Speaker Dennis Hastert's speculation about whether it made sense to rebuild, to the disengagement of the Justice Department from the serious debates about voting rights that arise when citizens have been turned into refugees, Washington has been no friend to democracy in New Orleans.

Sincere pundits will long debate whether the pattern of neglect was intentional. But few deny that it is to the advantage of the Republican Party that currently dominates federal politics to break up the urban voting bloc that has made New Orleans one of the most Democratic cities in the south and kept Louisiana far more politically competitive – with a Democratic governor and a Democratic U.S. Senator – than most of its neighbors.

Those who would prefer see the political complexion of New Orleans shift may not get their wish, however.

A May 20 result that divides the city along racial lines is at least a bit less likely in a Nagin-Landrieu runoff than it would have been in a contest between the mayor and one of the other white contenders.

Nagin was beat an African-American foe in 2002 with strong backing from the white community. While the mayor's reelection campaign was targeted minority voters – stirring some negative attention nationally when he suggested that New Orleans would emerge as a "chocolate city" -- surveys suggest that he retains a base of support among white voters. Nagin retains the potential to build on that base as he competes in the runoff.

Landrieu is the son of legendary former Mayor Maurice Edwin "Moon" Landrieu, who was one of the few white politicians to fight the segregationists in the 1960s and who went on to serve as former President Jimmy Carter's Secretary of Housing and Urban Development. The son has worked to maintain the multiracial coalition his father built.

Speaking to supporters Saturday, Landrieu struck the right note for a runoff campaign that will test the political maturity not just of New Orleans but America. "Today in this great American city, African-American and white, Hispanic and Vietnamese, almost in equal measure came forward to propel this campaign forward and loudly proclaimed that we in New Orleans will be one people, we will speak with one voice and we will have one future," he said. "We have said loudly and clearly that we will push off the forces of division and that we will find higher, common ground than we tried to find on that fateful day, Aug. 29, 2005, when we literally found ourselves in the same boat. We were in the same boat then and we are in the same boat now."

No matter who wins the runoff, everyone who believes that America can and must continue to promote a politics of empowerment and harmony should hope that Landrieu proves to be right about the potential to unite a city that nature and Washington have done so much to break apart.