The Nation

White House, NSA Block Investigation of Spying

With news reports exposing the National Security Agency's previously secret spying on the phone conversations of tens of millions of Americans, what is the status of the U.S. Department of Justice probe of the Bush administration's authorization of a warrantless domestic wiretapping program?

The investigation has been closed.

That's right. Even as it is being revealed that the president's controversial eavesdropping program is dramatically more extensive – and Constitutionally dubious -- than had been previously known, the Justice Department's Office of Professional Responsibility (OPR) has informed Representative Maurice Hinchey that its attempt to determine which administration officials authorized, approved and audited NSA surveillance activities is over.


In a letter to Hinchey, the New York Democrat who has been the most dogged Congressional advocate for investigation of the spying program, OPR Counsel H. Marshall Jarrett explained that he had closed the Justice Department probe on Tuesday, May 9, because his office's requests for security clearances to conduct the investigation had been denied.

"I am writing to inform you that we have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program," Jarrett explained in his letter to Hinchey. "Beginning in January 2006, this Office made a series of requests for the necessary clearances. On May 9, 2006, we were informed that our requests had been denied. Without these clearances, we cannot investigate this matter and therefore have closed our investigation."

Who blocked the request? The obstruction has come from the very administration that the president asserts is operating "within the laws of our country" and cooperating with appropriate investigations.

The security clearances were blocked by the NSA, which has taken its direction on the spying program from the White House.

Hinchey, who along with Representatives John Lewis of Georgia and Henry Waxman and Lynn Woolsey of California requested the Justice Department inquiry in January, following initial reports regarding the NSA's warrantless wiretapping program, is furious.

"It is outrageous that people within the Bush administration have blocked an investigation into the role that members of the Justice Department played in establishing and executing this secret domestic spy program," says the New York Democrat. "We must get to the bottom of this and reveal who has stifled this investigation. The Bush administration cannot simply create a Big Brother program and then refuse to answer any questions on how it came about and what it entails. We are not asking for top secret information. We simply want to know how the domestic spy initiative evolved and who is behind what many legal scholars believe is an unconstitutional surveillance program. If the administration believes the program is legal then it should have no problem being forthright with Justice Department investigators as to how it was initiated and is being carried out."

The key questions that Hinchey and his colleagues want answered are these:

• Who within the DOJ first authorized the domestic surveillance program?

• What was that official's justification was for doing so?

• Had the Bush administration already enacted the program before getting original DOJ approval?

• What does the reauthorization process for the surveillance initiative entail?

• Why, according to news reports, did the then-Acting Attorney General refuse to reauthorize the program and why the Attorney General expressed strong reservations about the program and may have rejected it as well?

Hinchey is not prepared to let the matter rest.

The congressman is seeking to determine who in the administration prevented the OPR investigators from obtaining the security clearances needed to conduct an investigation. When he has that information, Hinchey says, he will press for a reversal of the denial of the clearances and the reopening of the investigation.

At the same time, Hinchey continues to push on a number of fronts for the opening of a full Congressional inquiry into the warrantless wiretapping program and administration efforts to stifle examinations of its domestic spying initiatives.

While he has often stood alone in the past, Hinchey's calls come as part of a Congressional chorus of concern expressed by key members of the House and Senate on Thursday.

The Senate's chief critic of the spying program, Wisconsin Democrat Russ Feingold, says that the latest revelations have raised a range of new concerns about the White House's apparent disregard for the Constitution and specific statutes requiring that a warrant be obtained before tapping into the telephone conversations of Americans on American soil.

"This Administration's arrogance and abuse of power should concern all Americans," says Feingold, who has proposed that the president be censured for authorizing the warrantless wiretapping program. "That the government may be secretly collecting, and using data mining to analyze, the phone records of millions of law-abiding Americans, as reported in the press today, is a frightening prospect. I am unaware of this program, and Congress needs to find out exactly what the Administration is doing and whether it is legal. It is time for the Administration to come clean with Congress and the American people. We can effectively fight terrorism and protect privacy, the rule of law, and separation of powers, but only if we have a President who believes in these principles."

Block that Cliche!

Most people agree that it's unattractive to try to stop a campusspeaker--however odious--who comes simply to present a point of view.But the choice of commencement speaker is a different matter, making astatement about the school's identity, and about the aspirations of thegraduates.

I didn't attend my own graduation from the University of Michigan,which was addressed by then-president Bush the First, who now seems aharmless granola-nut compared to Senator John "Stop Me Before I Nuke North Korea" McCain,this year's scheduled commencement speaker at the New School, an institution withprogressive traditions. Founded by the likes of John Dewey andThorstein Veblen, the New School remains, even with disgusting warcriminal and union-buster Bob Kerrey at the helm, a hotbed of seriousleftish thinking. So it's delightful to see New School students protesting McCain's upcoming speech .

Fewer and fewer members of the reality-based community still considerpresidential contender McCain a "maverick," but some members of thenews media are holdouts. Yesterday's New York Times story giddily dubshim an "iconoclast." Some recovering McCain liberals have beenobserving with alarm that--surprise, surprise--in preparation for 2008,McCain is buddying up to social conservatives like Jerry Falwell. Thefact is, his "maverick" schtick was always bogus; he's a genuineright-winger, deeply opposed to abortion rights and in favor ofprivatizing Social Security. Check out Bob Geiger's recent debunking of McCainmythology.

My dictionary defines the word "maverick" thus: "someone who holdsindependent views and who refuses to conform to the accepted orthodoxthinking on a subject." Yet for some reason, the word is always used todescribe Republicans who have trivial, though dramatically rendered,disagreements with other Republicans. So can we agree, from now on,that anyone who uses words like "maverick" and "iconoclast" to describemainstream conservatives like John McCain is a lazy hack?

A Corporate Horror Story

While everyone I know waits for Patrick Fitzgerald's next move--will he or won't he indict Karl Rove?-- I eagerly await the verdict in the Enron trial.

Remember that giant corporate house of cards that camecrashing down on the heads of all the little people while the big guys like former Enron CEO Jeffrey Skilling and Chairman Ken Lay cashed out for mega-millions, smirking all the way? Remember theugliest financial scandal in an era of some pretty nasty corporate scandals? After presenting nearly three dozen witnesses and hundreds of documents, lawyers for Skilling and Lay rested their defenseagainst fraud charges earlier this week. Some analysts say that "gut feelings the jurors developed about Skilling and Lay over 14 days of testimony could prove to be the key..."

Gut feelings? If you want to turbo-charge your gut feelings about these corporate gladiators who ravaged 1000s of pensions, check out the documentary, Enron: The Smartest Guys in the Room.

I finally watched it last weekend. It's like a corporate horror story. It's also, as one film reviewer described it,"a primer on corporate malfeasance for dummies."

No matter what your politics, this well told tale about greed, arrogance, ethical malfeasance on an epic scale is bound to make you mad as hell. Watch it now. And be worried, very worried, and angry, very angry if these Enron hucksters get off.

The Bada Bing Club

In a must-read

-opinionfront-hed ">Chigago Tribune op-ed, GWU law professor Jonathan Turley makes the striking but often ignored point that the Bush Administration has a penchant for hiring those who break or bend the law. It almost seems like a prerequisite for hire or promotion these days. The nomination of Michael Hayden--Mr. Warrantless Wiretapper--to head the CIA only underscores this fact.

"From his very first appointments," Turley writes, "Bush appeared inclined toward officials who appear willing to treat the law as a mere technicality." As examples he cites appointees from the Reagan-era such as Elliott Abrams, Otto Reich, John Poindexter and John Negroponte.

In the second-term, Alberto Gonzales went from torture memos to Attorney General. George Tenet leaped from a "slam dunk" on Iraqi WMDs to a Presidential Medal of Freedom. And on it goes. Turley continues:

There appears to be more here than simply a tendency of Bush's to hang around with a bad group of kids. Bush himself has long displayed an equally dismissive view of the law, claiming the right to violate federal law when he considers it to be in the nation's interest.

As these shadowy figures multiply, you can understand why civil libertarians increasingly see the White House like a gathering at Tony Soprano's Bada Bing! club In Soprano's world, you cannot become a 'made man' unless you first earn your bones by 'doing' some guy or showing blind loyalty. Only when you have proven unquestioning loyalty does Tony 'open the books' for a new guy.

Hayden earned his bones by implementing the NSA operation despite clear federal law declaring such surveillance to be a criminal act. He can now join the rest of the made men of the Bush administration.

Funny how in last week's Sopranos an angry Tony referred to Paulie Walnuts by the now infamous phrase: "You're Doing a Heckuva job, Brownie."

Mary vs. Kerry

The election is history, but the war between a Cheney (Mary) and a Kerry (John) lives on.

In her new memoir, Now It's My Turn, Cheney's lesbian daughter calls Kerry a "son of a bitch" and his running mate, John Edwards, "total slime," for mentioning her sexual orientation during the campaign debates.

Watching Edwards during the veep debate, Cheney allegedly mouthed the words "Go F*** Yourself." Months earlier, the Vice President had told Vermont Senator Patrick Leahy to do the same. Like father, like daughter.

Of course, it was no secret Mary was gay--she'd been out of the closet for years, even working as Coors's liaison to the gay community--but that didn't stop Republicans for trying to paint the Democrats as anti-gay. Needless to say, the attack was one of the odder, and more hypocritical, moments of the campaign.

As our own Richard Kim noted at the time, "It's not like Mary Cheney's been quietly pursuing lesbianism by playing softball and raising cats in Northampton. She has devoted her entire career to providing cover for lesbian-hating organizations, corporations and political parties."

Today, Kerry spokesman David Wade fired back and took The Nation's line. Dick's daughter, he said, "flacked for the most anti-gay administration in history."

Added Wade: "She'd be more credible if she pushed dad's administration to support hate crimes legislation and equal rights for gay Americans."

Instead, she gave daddy credibility as his campaign gay-baited a victory in Ohio.

(PS--Be on the lookout for a full-length piece of mine on Kerry tomorrow.)

Byrd Is Soaring

U.S. Senator Robert Byrd, ardent critic of President Bush's decision to go to war with Iraq, outspoken opponent of the administration's domestic-spying program and chief Congressional challenger of White House moves to undermine the system of checks and balances, will on June 12 become the longest serving senator in history.

Of the 1,885 members of the upper chamnber of the Congress who have served since its first sitting in 1789, Byrd will hold the record for the time served.

But at 88, Byrd rests on no laurels.

Despite the regular battering he takes from conservative talk-radio and television hosts -- who delight in dredging up his brief association with the Ku Klux Klan more than six decades ago but conveniently fail to note that the senator has apologized repeatedly for his error and now wins overwhelming support from African-American voters in West Virginia -- and despite the fact that he has been targeted for defeat by White House political czar Karl Rove and the rest of the Republican attack machine, Byrd is seeking a record ninth term in the Senate.

In classic Byrd fashion, he is highlighting his dissents against the administration. The senator's , campaign website features at its top a petition demanding an investigation of the president's authorization of warrantless wiretaps. It reads:

The United States Constitution has served this country for more than 200 years. Our system of checks and balances ensures that our freedoms are protected.

There is evidence that the Bush Administration may have broken the law, and most certainly has violated the spirit of the Constitution, and the public trust by spying on American citizens without a court order.

We, the undersigned, believe that no President is above the law. We demand a Constitutional check on the Administration's illegal wiretapping. We join Senator Byrd in calling for a nonpartisan, independent commission to investigate and determine the legality of the President's actions.

The Constitution is the people's shield -- a shield of liberty -- and we must not let that shield turn to rust.

Next to the petition is an image of the senator holding a copy of the Constitution and a promise from Byrd to uphold it.

Would that other senators -- including Byrd's fellow Democrats -- would choose to seek reelection on a promise to defend basic liberties.

Perhaps they would do as well as Byrd did in Tuesday's Democratic primary in West Virginia.

He won 86 percent of the vote.

The senator will face a tougher race in the fall, against a millionaire Republican opponent. But, as the Charleston Gazette newspaper explained in an editorial endorsing Byrd: "No political challenger can rise as high as his ankles."

Why? In addition to championing his state's interests with an aggressiveness unequaled in the Senate, the Gazette's editors noted:

Here's another reason to hold Byrd in high esteem: He was almost the only member of Congress who had courage enough to oppose President Bush's plunge into the unnecessary Iraq war. While other national Democrats timidly succumbed to the war cry -- fearing they would be labeled unpatriotic if they didn't -- Byrd protested that the invasion was needless.

History proved him wiser than the rest of Congress. All the purported reasons for the war evaporated. Byrd's Senate speeches were distributed literally to millions around the world, and were incorporated in his book, Losing America: Confronting a Reckless and Arrogant Presidency.

Especially, Byrd is a champion of America's system of checks and balances, the separation of powers envisioned by the nation's founders. He fights endlessly to prevent the president from growing so powerful that Congress and the Supreme Court are reduced to puppets.

Shying from Spying

Democrats are out for the kill. Republicans are on the defensive. Right?

Not exactly. When it comes to national security, many Democrats are still pulling their punches, even with Bush's approval rating at an all-time low. Just take the issue of warrantless wiretapping. When the nomination of the man who masterminded the arguably illegal program, Michael Hayden, for CIA director comes before the Senate next week, Intelligence Committee Democrats plan to promptly change the subject.

According to Bloomberg News, "Democrats say they will focus their fire on Michael Hayden's military background and suitability to head the Central Intelligence Agency...and won't emphasize the nominee's role in running a much-criticized eavesdropping program."

Isn't his role as chief wiretapper central to his suitability? Do we want a CIA chief who believes he's above the rule of law? Is it politically advantageous for Democrats to let Republicans continue to dictate the terms of national security debates?

To reinforce the putrid status quo, Bloomberg quotes a former CIA hand-turned-professor saying: "The public seems to have concluded that the idea of listening in on people who want to blow up things in this country is a pretty good idea."

Of course, if that's how you phrase it. In fact, the public is split on the program. Americans disapprove of the way Bush is fighting the war on terror. And no one knows exactly who the Administration is listening on. They won't tell us. And Congress won't ask.

Hayden's nomination would be the perfect occasion for Democrats to demand answers to some of these questions.

Will Civilians Control the Military?

President Bush's nomination of Air Force General Michael V. Hayden to direct the Central Intelligence Agency has opened a debate over whether the most fundamental principles of the American Republic remain will remain in place.

The founders who proposed to "chain the dogs of war" established civilian control over the military as an essential underpinning of the American experiment. Along with their determination to put in place a system of checks and balances, which they constructed to prevent presidents from leading the country into war without properly consulting Congress, Jefferson, Madison and their compatriots believed that giving civilians the means to manage the military was necessary if the nation they imagined was to be free.

Agonizingly aware of the abuses that had been imposed upon the former colonies by a British military accountable only to a distant and dictatorial king, the founders worried about the degeneration of the American experiment into a state of affairs similar to that of the Empire against which they had rebelled.

Sam Adams warned that, "Even when there is a necessity of military power, within the land... a wise and prudent people will always have a watchful & jealous eye over it." Elbridge Gerry, a delegate to the 1787 Constitutional Convention and the fifth vice president of the United States, argued that, "Standing armies in time of peace are inconsistent with the principles of republican Governments, dangerous to the liberties of a free people, and generally converted into destructive engines for establishing despotism."

Gerry was no radical. He expressed a common concern about the scope and power of the new nation's military, according to the essential review of thinking of the founders with regard to civilian control of the military compiled by Dr. Michael F. Cairo, a specialist in American foreign policy and the foreign policy process.

"At the beginnings of the Republic," recalls Dr. Cairo, in an explanation of the principle distributed by no less an authority than the U.S. State Department, "four basic premises conditioned how most Americans saw civilian control of the military. First, large military forces were viewed as a threat to liberty, a legacy of British history and the army's occupation in the colonial period. Second, large military forces threatened American democracy. This notion was linked to the ideal of the citizen-soldier and fears of establishing an aristocratic or autocratic military class. Third, large military forces threatened economic prosperity. Maintaining large standing armies represented an enormous burden on the fledgling economy of a new nation. Finally, large military forces threatened peace. The founders accepted the liberal proposition that arms races led to war. Thus, civilian control of the military arose from a set of historical circumstances and became embedded over time in American political thought through tradition, custom, and belief."

To cement those principles in place, the founders assured that a civilian, the president, would serve as commander-in-chief of the military. They also established the principle and the precedent that, as Alexander Hamilton noted in a discussion of the management of the military in the Federalist Papers, "the whole power of the proposed government is to be in the hands of the representatives of the people." To Hamilton's view, "This is the essential, and, after all, the only efficacious security for the rights and privileges of the people which is attainable in civil society."

In order to maintain meaningful civilian control of the military, however, one commodity has always been essential: honest intelligence about global threats and opportunities gathered and assessed by an independent agency that recognizes its responsibility to inform and empower civilian authorities -- as opposed to merely echoing the official line of the Pentagon.

This is a wall of separation every bit as important as the one the founders proposed to divide church and state. And the motivation was the same: a sense, born of painful experience, that only by maintaining a strict separation of powers and influences could the new Republic function across the long term as an entity distinct from the monarchical dictatorships of old Europe.

President Bush says his nominee to succeed scandal-hobbled Central Intelligence Agency director Porter Goss is "the right man to lead the CIA at this critical moment in our nation's history." But even if it was true that Hayden's background made him "the right man" for the job -- as assumption shot down by the fact of Hayden's involvement with the president's illegal program of eavesdropping on the phone conversations of Americans -- the appointment of a military commander to head the nation's premier civilian intelligence gathering and analysis agency would still by the wrong move at this or any other point in American history.

Any effort to collapse the wall of separation between an agency charged with gathering the intelligence needed to enable civilians to guide and manage the military -- as the Hayden appointment would surely do -- has to be seen as a radical assault on the founding principles of the Republic.

To his credit, House Speaker Dennis Hastert, the Illinois Republican who rarely differs with the White House, does see it that way.

"The Speaker does not believe that a military person should be leading the CIA, a civilian agency," explains Hastert spokesman Ron Bonjean.

Hastert argues that putting a general in charge of the "CIA would give too much influence over the U.S. intelligence community to the Pentagon."

The Speaker is right, and his position parallels that of House Intelligence Committee chair Peter Hoekstra, the Michigan Republican who has led the charge against Hayden's nomination. "I do believe he's the wrong person, the wrong place, at the wrong time," Hoekstra says of Hayden. "We should not have a military person leading a civilian agency at this time."

The only problem in Hoekstra's otherwise strong statement is his "at this time" qualification.

There is never a right time to undermine the fundamental American principle that civilians should control the military -- and that those civilians should have access to the independent intelligence that alone makes real the promise of such control.

Defending the Constitution

Earlier this week I wrote about the constitutional crisis we currently face as a result of George Bush's abuse, overreach and lawlessness. (A recent article in the Boston Globe documents how Bush has claimed the right to disobey more than 750 laws enacted since he took office.) Accomplices in this assault on our democracy include the religious right which would intrude into our personal lives to determine our rights and freedoms.

Fortunately, there's an important new online grassroots group fighting these extremists: The Campaign to Defend The Constitution (DefCon). Director Jessica Smith describes the group's mission as this, "DefCon has assumed a leading role in the ever intensifying battle between those who believe in the separation of church and state and those who seek, through political influence, to undo this fundamental American principle." DefCon has a dynamic and committed Board of Directors composed of leading legal scholars, scientists and civil liberty activists, including: Kate Michelman (former head of NARAL), Harold Varmus (former head of NIH), Ira Glasser (former head of ACLU) and Bruce Alberts (former President of the National Academy of Sciences).

The group works with activists from diverse backgrounds, including many people of faith who are tired of seeing their beliefs and values hijacked by right-wing extremists. DefCon focuses on strengthening the separation of church and state; an independent judiciary that safeguards rather than rolls back our rights; science and technology that is not hindered by religious ideology; and the right to privacy--whether protecting choice or combating anti-gay legislation.

Since its inception last fall, 55,000 people have joined DefCon and are already making a real impact. In Ohio, DefCon members helped reverse a Board of Education decision that had allowed pro-intelligent design language into the state's science standards. In Utah, 455,000 emails – no, that is not a typo – 455,000 emails helped thwart a well-organized intelligent design movement in the Utah State Legislature.

DefCon has also exposed the maddening hypocrisy of the religious right in its TV and newspaper advertising campaign on the "unholy alliance" between Jack Abramoff, Ralph Reed, Rev. Louis Sheldon, and James Dobson.

In the fight to defend our Constitution, DefCon offers democracy advocates invaluable tools for these times. Check it out today.