Justice: Rationalizing Incompetence

Conservatives on Capitol Hill are gearing up for a fight this week over proposed changes to the Foreign Intelligence Surveillance Act (FISA) that would restore court oversight to the administration's wiretapping program.

OCTOBER 16, 2007 by Faiz Shakir, Amanda Terkel, Satyam Khanna,
Matt Corley, Ali Frick, and Jeremy Richmond
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Rationalizing Incompetence

Conservatives on Capitol Hill are gearing up for a fight this week over proposed changes to the Foreign Intelligence Surveillance Act (FISA) that would restore court oversight to the administration’s wiretapping program. In an effort to grant the Bush administration broad, unchecked wiretapping authority, conservatives are planning to use the kidnapping and subsequent murder of three U.S. soldiers in Iraq earlier this year to put a “human face” on the issue. Last month, Director of National Intelligence Mike McConnell told Congress that “a May wiretap that targeted Iraqi insurgents was delayed for 12 hours by attempts to comply with onerous surveillance laws, which slowed an effort to locate three U.S. soldiers who had been captured.” Further examination of the incident following McConnell’s testimony, however, showed that FISA requirements had nothing to do with the administration’s inability to rescue the soldiers. Nevertheless, conservatives seem intent on distorting the facts to use the kidnapping of these soldiers for their own political agenda.

INCOMPETENCE AT THE JUSTICE DEPARTMENT: On May 12, 2007, U.S. army soldiers Alex Jimenez, Joseph Anzack, and Byron Fouty were abducted in Iraq when insurgents attacked a military outpost in Baghdad. Three days later, at approximately 10:52 AM, “the NSA notified the Department of Justice of its desire to collect some communications that required a FISA order.” Surveillance did not begin until almost 8 PM that evening. In his testimony, McConnell attributed the delay to problems with FISA. But the delay in obtaining the order can be traced to red tape and incompetence within the Bush administration. Alberto Gonzales’s Justice Department, filled with inept political cronies, wrestled with “novel legal issues” that it was not prepared for, creating a four-hour delay. Under FISA, the administration could have obtained an emergency warrant to allow for immediate surveillance of the target. This required only a senior official to sign off on the wiretap. Mired in scandal, Gonzales was speaking to a group of U.S. attorneys and could not be reached. “Deputy AG Paul McNulty had resigned already; Solicitor General Paul Clement ‘had left the building‘; and the other responsible official, Assistant Attorney General Kenneth Wainstein, was not yet authorized to approve the emergency order.” Wainstein had in fact been authorized by FISA to sign emergency warrants, but the “Justice Department had not yet altered its own internal regulations to allow him to do so.” As a result, it took over two hours to find someone who had the authority to sign the emergency warrant.

CONSERVATIVE RHETORIC: Despite McConnell’s version of events having been thoroughly discredited, conservatives are getting ready to recycle the information to fight the proposed changes to FISA. The New York Post embraced the conservative PR campaign and published a politically-charged article reiterating the conservatives’ talking points. The New York Post writes, “U.S. intelligence officials got mired for nearly 10 hours seeking approval to use wiretaps against al Qaeda terrorists suspected of kidnapping Queens soldier Alex Jimenez in Iraq earlier this year…. ‘The intelligence community was forced to abandon our soldiers because of the law,’ a senior congressional staffer with access to the classified case told The Post.” Other conservative news outlets have also been following the right-wing script. Shepard Smith insinuated on Fox News yesterday that FISA was ultimately responsible for the deaths of the three soldiers. In response, members of Congress who support the changes to FISA are accusing the administration of a “cynical and transparent attempt to use the lives of American servicemembers for partisan political gain.” Silvestre Reyes (D-TX), chairman of the House intelligence committee, wrote yesterday that the RESTORE Act would “eliminate the requirement to obtain an individual warrant, based on probable cause, for targets outside the U.S.” This means that the so-called “problem” Gonzales’s Justice Department faced would be remedied by the very bill against which conservatives are rallying. 

BUSH MISLEADS PUBLIC: This is not the first time that conservatives have lied about the wiretap program to further their own political agenda. In court documents released last week, former Qwest CEO Joseph Nacchio revealed that “the NSA approached [the telecom firm] Qwest more than six months” before 9/11 “about participating in a warrantless surveillance program to gather information about Americans’ phone records.” Bush has long insisted that the wiretapping program was put in place in a response to 9/11. As recently as last year, he said that “after September the 11th, I vowed to the American people that our government would do everything within the law to protect them against another terrorist attack. As part of this effort, I authorized the National Security Agency to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.” The fact that the Bush administration had the wiretapping program in place before 9/11 suggests that Bush has been misleading the American people about the origins of the program. It also shows that his wiretap program “objectively failed to prevent 9/11.”


ADMINISTRATION — FRONTLINE DOCUMENTARY ‘CHENEY’S LAW’ DEBUTS TONIGHT ON PBS: Tonight, at 9 PM ET on PBS (check local listings), Frontline kicks off its 26th season with Cheney’s Law, a look at Vice President Dick Cheney’s three-decade, “secretive, behind-closed-doors campaign to give the president virtually unlimited wartime power.” “Through interviews with key administration figures, Cheney’s Law documents the bruising bureaucratic battles between a group of conservative Justice Department lawyers and the Office of the Vice President over the legal foundation for the most closely guarded programs in the war on terror,” says Frontline producer/director/writer Michael Kirk, who has made nine other films about the Bush administration. Though much of the film builds off Barton Gellman and Jo Becker’s Angler series on Cheney for the Washington Post, the film features “a lengthy interview” with former Office of Legal Counsel chief Jack Goldsmith, who “clashed sharply” with Cheney and his longtime legal counsel David Addington over the legality of the administration’s interrogation and surveillance policies. According to TPMmuckraker’s Spencer Ackerman, “much of the film’s final 20 minutes presents the argument that the cronyization of DOJ occurred, with Cheney’s blessing, to ensure that the department didn’t balk, as Goldsmith and his allies did, over torture or surveillance or indefinite detentions.” Watch a preview here.

IRAQ — FORMER ARMY CAPTAINS: INSTITUTE DRAFT OR ‘LEAVE IRAQ IMMEDIATELY’: Today, in a Washington Post op-ed, 12 former Army captains declare that “five years on, Iraq is in shambles” and call for either a military draft or an immediate withdrawal from Iraq. “As Army captains who served in Baghdad and beyond, we’ve seen the corruption and the sectarian division,” they write. “We understand what it’s like to be stretched too thin. And we know when it’s time to get out.” The captains state that the U.S. must reinstate a military draft to continue the war at its current intensity. “Short of that, our best option is to leave Iraq immediately. A scaled withdrawal will not prevent a civil war, and it will spend more blood and treasure on a losing proposition.” The captains’ op-ed comes days after the former top commander in Iraq, retired Lt. Gen. Ricardo Sanchez, issued a scathing critique of the Bush administration’s war strategy, calling it “a nightmare with no end in sight.” Today’s op-ed echoes similar statements made by the seven active-duty members of the 82nd Airborne Division, who wrote in The New York Times that American troops had essentially become an “army of occupation.” Two of those members were killed in action shortly thereafter.

MEDIA — ‘TOP METEOROLOGIST’ HAILED BY TRADITIONAL MEDIA ONCE COMPARED GORE TO HITLER: On Friday, Dr. William Gray, a professor at Colorado State University, joined a long list of rightwing skeptics who have hurled baseless personal remarks at Gore and the Nobel prize committee, claiming that Gore is “brainwashing our children.” (Watch yesterday’s MSNBC report of his comments here). MSNBC called Gray a “top meteorologist.” The Washington Times coined him one of the “world’s foremost meteorologists.” But both failed to note that Gray has a long history of climate change skepticism and attacks on Gore. In May 2006, a Washington Post magazine article quoted Gray directly comparing Gore to Hitler: “Gore believed in global warming almost as much as Hitler believed there was something wrong with the Jews.” In April, Gray told the Associated Press that Gore is “doing a great disservice and he doesn’t know what he’s talking about.” He added that skeptics have had to endure “mild McCarthyism.” In July, Gray indicated that he holds a grudge against the IPCC as well, because the members have never “come to me.” Gray also claimed that the reason other scientists haven’t publicly questioned manmade global warming is because “they’d never get any grants if they spoke out.” But even skeptics are skeptical of claims made by people like Gray. The journal Energy & Environment, “known for publishing work that denies a link between greenhouse gas emissions and climate change,” recently rejected a paper “claiming to show that the scientific consensus on climate change is not in fact a consensus.”


During his town hall meeting in Arkansas yesterday, “not a single questioner criticized” President Bush. With polls showing Bush’s disapproval at record highs, the White House is staging “let-Bush-be-Bush events” in front of “friendly audiences” with “increasing frequency.”

Verizon Communications told congressional investigators that, from Jan. 2005 to Sept. 2007, the company provided customers’ telephone records to federal authorities on an emergency basis 720 times. “Verizon also disclosed that the FBI, using administrative subpoenas, sought information identifying not just a person making a call, but all the people that customer called, as well as the people those people called.”

Air America radio host Randi Rhodes was mugged on Sunday night while walking her dog nearby her Manhattan apartment. “According to Air America Radio late night host Jon Elliott, Rhodes was beaten up pretty badly, losing several teeth and will probably be off the air for at least the rest of the week.”

The House Judiciary Committee is holding a hearing today on the Jena Six case, with Rev. Al Sharpton and others testifying. Panelists will urge Congress to “expand hate crime laws to deal more forcefully with noose-hanging incidents like the one in the Jena Six case in order to squelch what he called a sharp rise in racism.”

The House GOP leadership “has held private discussions with Rep. John Doolittle (R-CA) in an effort to convince him to retire.” But Doolittle, who is under federal investigation, is “promising to run for re-election.”

“For the first time in more than 100 years, much of the Southeast has reached the most severe category of drought, climatologists said Monday, creating an emergency so serious that some cities are just months away from running out of water.

Oil thundered towards $88 a barrel on Tuesday, hitting a new record and extending a rally that has added eight dollars in a week on tight supplies, strong demand and tension in northern Iraq. Oil is closing in on the inflation-adjusted high of $90.46 seen in 1980, the year after the Iranian revolution and at the start of the Iran-Iraq war.”

$15 billion: Amount seniors and other taxpayers could have saved this year if the government had “slashed administrative costs in the Medicare drug program and negotiated the same kind of discounts it does for poor people under Medicaid.”

And finally: While many Capitol Hill offices “proudly display their home-state” sports teams’ gear, the walls of Rep. Stephanie Tubbs Jones’s (D-OH) office are blank. They’re hoping for the Cleveland Indians to go all the way, and remember the loss of the Cleveland Cavaliers in last season’s NBA playoffs when their walls were decorated. “In the past it’s been a jinx,” spokeswoman Nicole Williams said. “We are diehard fans. We hope the Indians go all the way, and then we’ll celebrate.”

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The House yesterday passed a bill urging agencies to “expand research into postpartum depression problems that affect up to one-fifth of new mothers and can, if untreated, lead to more serious psychoses.”


TEXAS: “Texas this month joined a handful of states and the federal government in posting detailed financial information on the Internet.”

CALIFORNIA: “[M]ore than 1,000 of California’s 9,500 schools are branded chronic failures, and the numbers are growing.”

HEALTH CARE: States consider “contingency measures such as enrollment caps or cutting children from the rolls” of health insurance programs because of gridlock in Washington.


THINK PROGRESS: General advocating for “victory declaration” over al Qaeda in Iraq also declared “major combat over” in Iraq in 2003.

THE CRYPT: Rep. Joe Knollenberg’s (R-MI) chief of staff says that supporting House Speaker Nancy Pelosi (D-CA) is “un-American.”

INSIDE CABLE NEWS: Right-wing columnist Michelle Malkin quits Fox News’s The O’Reilly Factor.

WASHINGTON WHISPERS: Rep. Henry Waxman (D-CA) presses investigation into pre-war lies.


“Lt. Gen. Stanley McChrystal, head of the Joint Special Operations Command’s operations in Iraq, is the chief promoter of a victory declaration and believes that AQI [al Qaeda in Iraq] has been all but eliminated.”
— Washington Post, 10/15/07


“I would anticipate that the major combat engagements [in Iraq] are over.”
— McChrystal, 4/14/03

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