Holocaust archive begins opening its files

Maybe now the Holocaust deniers will shut up.

The Bad Arolsen documents — transportation lists, Gestapo orders, camp registers, slave labor booklets, death books — contain references to about 17.5 million people, Jews and non-Jews. It is the largest registry of Holocaust victims ever.

Why is this only coming out now? The transcript (pdf) of a Congressional hearing back in March explains:

The information at Bad Arolsen was originally collected and maintained to help reunite non-German families separated during the war and trace missing family members. Countless files and documentation from across Germany were relocated to Bad Arolsen by allied forces after World War II. Shortly after the end of the war, the Bonn Accord treaty was signed by 11 nations, including the United States, forming an international commission to govern the International Tracing Service (ITS), which was charged with maintaining the massive Nazi archives.

And thus became a captive of international politics, with both East and West having incentive to keep the records shrouded. Both countries employed people who might have been exposed as Nazi collaborators had the archive been open. As well, the archive likely records the involvement of many nationalities, which would be embarassing to the countries involved. And finally, there was always the risk that revelations might expose countries, companies and individuals to demands for restitution.

Cynically understandable as that may be, it's shameful, and yet another example of how excessive secrecy is harmful. By keeping the archive away from public view, the commission robbed survivors of closure and provided space for Holocaust deniers to operate. There may be times when short-term healing takes priority over truth, but I can't think of a good example right now. In general, openness speeds healing by removing doubt.

I hope we remember that principle the next time someone proposes sealing public records to protect the public good.

Holocaust, politics, midtopia

Increased transparency -- or not

On Monday, President Bush signed a bill that purports to strengthen the Freedom of Information Act, by improving response time to FOIA requests and changing the rules agencies use to decide what is secret and what isn't -- with a bias toward "not secret."

The legislation creates a system for the media and public to track the status of their FOIA requests. It establishes a hot line service for all federal agencies to deal with problems and an ombudsman to provide an alternative to litigation in disclosure disputes.

The law also restores a presumption of a standard that orders government agencies to release information on request unless there is a finding that disclosure could do harm.

Trouble is, it apparently does no such thing.

The new law makes several constructive procedural changes in the FOIA to encourage faster agency response times, to enable requesters to track the status of their requests, to expand the basis for fee waivers, and more.

One thing it does not do, however, is alter the criteria for secrecy and disclosure. Whatever records that a government agency was legally entitled to withhold before enactment of the "OPEN Government Act" can still be withheld now that the President has signed it....

The widely-published AP account continued, "The legislation is aimed at reversing an order by former Attorney General John Ashcroft after the 9/11 attacks in which he instructed agencies to lean against releasing information when there was uncertainty about how doing so would affect national security."

But that is incorrect.

Although the original House version of the OPEN Government Act did include a provision that would have repealed the Ashcroft policy and established a "presumption of openness," that provision was removed from the bill prior to passage.

Oops. Turns out the bill is mostly light and noise, signifying nothing. Score one for style over substance.

secrecy, politics, midtopia

Public documents are -- get this -- public

You may recall that in January, we discovered that the White House's penchant for secrecy had reached such an extreme that they had classified the White House visitor logs, elevating West Wing visits to the level of state secrets.

At the time, I hoped that Bush would be forced to retract the move. Today, I get my wish.

White House visitor logs are public documents, a federal judge ruled Monday, rejecting a legal strategy that the Bush administration had hoped would get around public records laws and let them keep their guests a secret.

The administration, true to form, is expected to appeal the ruling. In addition, they went venue shopping:

The Bush administration had sought to have the case moved to another judge by consolidating it with a similar lawsuit before U.S. District Judge Rosemary Collyer, an appointee of President Bush.

Lamberth, who served in the Justice Department before President Reagan put him on the federal bench, has roiled Democratic and Republican administrations alike with rulings rejecting government secrecy claims.

I'm happy to report, however, that that move failed:

On Monday, Collyer and Lamberth agreed to consolidate the two Abramoff-related cases before Lamberth, even though Collyer, in accordance with long-standing courthouse practice, would have dealt with both because the case she was hearing was the older of the two.

I suspect Collyer didn't want the hassle of ruling on a case involving the man who appointed her.

In any case, the principle of open records has been preserved for now. We'll see if the administration decides to push it further up the ladder. They may decide to give it a try just to string the case out until Bush's presidency ends, after which interest in Bush's visitor list will shrink significantly. That's obnoxious, but it's their right. My main concern is that the openness be preserved in the end, so that future inhabitants can't pull the same shenanigans.

White House, secrecy, politics, midtopia

Democrats move to defund Cheney

I thought Rep. Rahm Emmanuel was just engaging in political rhetoric when he suggested cutting off money for the Office of the Vice President because Dick Cheney had declared that the office wasn't part of the executive branch. His amendment to do so was handily defeated.

But over in the Senate, Democrats apparently took him seriously.

A Senate appropriations panel chaired by Sen. Richard Durbin, D-Ill., refused to fund $4.8 million in the vice president's budget until Cheney's office complies with parts of an executive order governing its handling of classified information.

While amusing, this is wrong on several levels.

First, Congress really has no business trying to force an executive agency to follow an executive order -- which, after all, is an order issued at the sole discretion of the president, to be enforced if and as he sees fit (or, as in this case, to be ignored, by pretending the plain language in the EO doesn't include the White House or vice president, even though it clearly does). Congress can use its investigative authority to embarrass the administration, but has no power to compel action. And it shouldn't use its funding powers in an attempt to get around that.

Second, the vice presidency is a Constitutional office, not a statutory one. While that does not entitle Cheney to whatever funding he wants, Congress has an obligation to provide sufficient funding for such an office to do its job.

Third, it's a waste of time.

The Democrats get points for style, but this is bad policy. Put the funding back in.

Durbin, Cheney, politics, midtopia

Cheney's office responds to critics

Dismissively.

“Constitutional issues in government are generally best left for discussion when unavoidable disputes arise in a specific context instead of in theoretical discussions,” Cheney’s chief of staff, David Addington, said in a letter to Sen. John Kerry (D-Mass.).

Meanwhile -- it sounds like Henry Waxman is just getting started, outlining a whole series of reported security violations in the White House. Most of them appear aimed more at embarassing the president than correcting substantive problems, inasmuch as the rules that are said to be violated are rules that the president could change at will. And the reference to Karl Rove is just silly. That said, while the president can do stupid things with classified documents, that does not mean he should. If the White House information security operation is as sloppy as Waxman alleges, Bush deserves embarassment.

Update: The Washington Post has a more detailed piece on the response, noting that the argument being advanced by Addington doesn't appear to be supported by the language of the EO, and has thus been specifically rejected by the National Archives office charged with enforcing the EO. That said, the letter may be a signal that the VP's office won't try to push the "not part of the executive branch" defense.

Too bad. Apparently somebody with a lump of sense got ahold of Cheney's lawyers.

Cheney, politics, midtopia

Good reads

A roundup of links worth clicking on:

1. A New York Times story on an Army platoon dealing with a Baquba neighborhood that is one big booby trap. They get through without a scratch.

2. The former chief judge of the FISA court, Royce C. Lambeth, reveals some details of the court's workings. His anecdotes are interesting, and provide yet another rebuke to the White House's contention that the court functions too slowly to combat modern terrorists.

3. The CIA continues to release once-secret documents detailing their most controversial activities from 1959 to the mid-1970s, including assassination plots and domestic surveillance. They serve as a reminder of why civil liberties and governmental openness are such crucial foundations of democracy. You can dig through the documents themselves at the CIA's Freedom of Information page.

4. The Washington Post's Dana Milbank writes a somewhat sardonic column about everything Cheney.

5. A few Democrats, going a bridge too far, aren't satisfied with leaving Iraq; they want us out of Afghanistan, too. They're wrong. Afghanistan has its problems, and the conflict is fueled by the Taliban safe haven in Pakistan. But our invasion was justified, the government legitimate, the enemy beatable, and we're not stuck in the middle of an ethnic and regional cauldron. As well, the troop demands and casualty rates are much lower, so our presence there is far more sustainable. And most importantly, Afghanistan is far more likely than Iraq to return to being a terror haven if we withdraw.


FISA, Cheney, CIA, Iraq, Afghanistan, politics, midtopia

Cheney the legislator update

I had planned a roundup of (informed) reaction to Dick Cheney's assertion that the Office of the Vice President isn't part of the executive branch, But Joe Gandleman beat me to it.

He links to Captain's Quarters and Glenn Reynolds -- both conservatives, both unimpressed.

And he also notes the hay that Rahm Emanuel is making with it, including a move to strip funding for the OVP from the funding bill currently before the House.

Meanwhile, Newsweek notes that one reason Alberto Gonzales has not responded to the National Archives letter requesting his opinion on the matter could be because, five months later, Justice still hasn't looked into it.

The L.A. Times had a story on Friday saying the White House was exempting itself from the EO as well, something that contradicts reporting in other stories as well as the letters from the National Archives to Cheney and Gonzales. If true, it doesn't make Cheney's "not part of the executive branch" argument any less silly. But it would mean the OVP is no longer acting differently from the White House itself, isn't openly flouting an EO and that the main focus of criticism shifts from Cheney to Bush.

Cheney, politics, midtopia

Cheney's destruction of executive power

The Washington Post is publishing an excellent four-part series examining Dick Cheney's role in the current administration, from terrorism to the economy to the environment. The first two installments are already out, with the next two coming tomorrow and Wednesday.

The series' name, "Angler", seems pretty odd until you realize it's Cheney's Secret Service codename. Though relying heavily on anonymous sources, the breadth, depth and carefulness of the reporting is impressive: More than 200 interviews with administration insiders with direct experience working with or against Cheney, who gave the reporters access to notes, calendars and other records to bolster their words. This isn't a careless, anonymously sourced hatchet job, and the story names so many names that if its claims are not accurate they would be easily demolished. This appears to be "best-practice" use of anonymous sources.

In Sunday's piece, Barton Gellman and Jo Becker detail how Cheney operates: behind the scenes, in secret, depending on his extraordinarily close relationship with President Bush to bypass other agencies and the normal review mechanisms and essentially upend the traditional model of the vice-president's role.

There's nothing particularly wrong with that; A VP who is the president's chief adviser or doppleganger could be very useful, and at a minimum is a way to squeeze extra value out of what has long been a mostly ceremonial post. Sure, one can always paint Cheney as some sort of Rasputin (or, in the current parlance, Lord Voldemort), but there's little evidence to back that up: it's not like he is blackmailing or hypnotizing Bush. It's what Cheney has done with that influence -- not the influence itself -- that deserves criticism.

(If anyone should be blamed for that influence, it's Bush -- who continues to listen to Cheney even though the veep has unhesitatingly led him down losing path after losing path in the last six years.)

The influence goes beyond Bush, though. In the early days of the Bush administration, at the height of his influence, Cheney filled the administration with allies, loyalists and former aides. That gave him huge influence at lower levels of government, allowing him to strongly influence other departments and Congress. It also reinforced his advice to the president, because the president would hear the same advice echoed by Cheney allies elsewhere in the executive branch.

Then there's his legendary penchant for secrecy:

Man-size Mosler safes, used elsewhere in government for classified secrets, store the workaday business of the office of the vice president. Even talking points for reporters are sometimes stamped "Treated As: Top Secret/SCI." Experts in and out of government said Cheney's office appears to have invented that designation, which alludes to "sensitive compartmented information," the most closely guarded category of government secrets. By adding the words "treated as," they said, Cheney seeks to protect unclassified work as though its disclosure would cause "exceptionally grave damage to national security."

Across the board, the vice president's office goes to unusual lengths to avoid transparency. Cheney declines to disclose the names or even the size of his staff, generally releases no public calendar and ordered the Secret Service to destroy his visitor logs.

As well, there's his recent assertion that his office isn't part of the executive branch when it comes to having to obey Executive Orders. As the story says, information flows into the VP's office -- but nothing comes out. It's a Roach Motel for information.

After 9/11 his priority became fighting terrorism without any restrictions whatsoever, be they constitutional, legal or moral. He directed the legal team that sought so many spurious rationales for ignoring plain readings of law or any meaningful limits on executive power in wartime -- regardless of whether that war were actually declared or not, or even meaningfully defined.

That disregard helped him bull through opposition in the short term, but over time has dealt him the usual punishment for overreaching:

The way he did it -- adhering steadfastly to principle, freezing out dissent and discounting the risks of blow-back -- turned tactical victory into strategic defeat. By late last year, the Supreme Court had dealt three consecutive rebuffs to his claim of nearly unchecked authority for the commander in chief, setting precedents that will bind Bush's successors.

One of the main themes of the series is that Cheney, while harshly rebuked, has in practice been far less leashed than most people think, thanks largely to his willingness to build and exploit legal loopholes and questionable claims to get around adverse rulings. But the fact remains that he has weakened the White House for future occupants, especially ones with more respect for legal precedent, logic and intent.

Cheney and his legal team knew their assertions would never withstand scrutiny, which is why they went to such lengths to avoid scrutiny -- even if it meant bypassing Congress, the courts, and administration officials with direct responsibility for the matter at hand.

Cheney's office couldn't be bothered to join administration discussions about what to do with captured Taliban and Al-Qaeda fighters, preferring instead to simply ignore all the discussion about legalities and nuances and do what he wanted by going directly to the president. One of the most interesting sections of the first article explains how this practice went directly against a lifetime of Cheney's own advice.

When James A. Baker III was tapped to be White House chief of staff in 1980, he interviewed most of his living predecessors. Advice from Cheney filled four pages of a yellow legal pad. Only once, to signify Cheney's greatest emphasis, did Baker write in all capital letters:

BE AN HONEST BROKER

DON'T USE THE PROCESS TO IMPOSE YOUR POLICY VIEWS ON PRES.

Cheney told Baker, according to the notes, that an "orderly paper flow is way you protect the Pres.," ensuring that any proposal has been tested against other views. Cheney added: "It's not in anyone's interest to get an 'oh by the way decision' -- & all have to understand that. Can hurt the Pres. Bring it up at a Cab. mtg. Make sure everyone understands this."

In 1999, not long before he became Bush's running mate, Cheney warned again about "'oh, by the way' decisions" at a conference of White House historians. According to a transcript, he added: "The process of moving paper in and out of the Oval Office, who gets involved in the meetings, who does the president listen to, who gets a chance to talk to him before he makes a decision, is absolutely critical. It has to be managed in such a way that it has integrity."

Two years later, at his Nov. 13 lunch with Bush, Cheney brought the president the ultimate "oh, by the way" choice -- a far-reaching military order that most of Bush's top advisers had not seen.

He should have listened to his old self.

The story contains repeated examples of how Bush delegated extraordinary authority on terrorism and intelligence to Cheney -- so much so that when officials went to the White House to complain about Cheney's policy moves, they found themselves meeting with... Cheney.

His reach was long. Supposedly confidential memos from White House officials to the national security advisor -- at the time, Condoleeza Rice -- were secretly routed to Cheney, too; Cheney was reading Rice's mail. In another sign that Alberto Gonzales is an empty shirt, Cheney's staff would prepare memos for Gonzales -- then the White House counsel -- to sign, hiding Cheney's role and putting Gonzales' name to words he never wrote. thus Bush would sometimes hear identical advice from Gonzales and Cheney -- because Cheney had written Gonzales' memo.

Monday's article delves deeper into Cheney's destructive efforts to expand presidential power -- including Cheney's nonstop efforts to allow torture, to exclude the CIA from legal restrictions on torture and to set up the President as the sole authority for deciding what is torture and what isn't (even though abuses by the executive branch are what such laws and conventions are designed to protect against). All this while ignoring, undermining and punishing anyone who dared argue differently.

Once again, the story describes repeated examples of Cheney hiding from the light -- making breathtaking assertions of executive power, then hiding those assertions from anyone who might question or oppose them.

In secret memos, Cheney's chief lawyer, David Addington, pushed some of the most extreme interpretations of presidential power:

The vice president's lawyer advocated what was considered the memo's most radical claim: that the president may authorize any interrogation method, even if it crosses the line of torture. U.S. and treaty laws forbidding any person to "commit torture," that passage stated, "do not apply" to the commander in chief, because Congress "may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."

According to that logic, the president could "accidentally" strangle a prisoner with his own hands in the course of an interrogation, and there is no authority on Earth that could outlaw it. That assertion is so bizarre, so contemptuous of any limit on presidential power, that it's easy to understand why the administration kept it secret. They changed the rules to their own satisfaction, then didn't tell any of the other players.

Cheney refused to step back from even his most outrageous claims, even as they were clearly headed for defeat in the courts. In this he had the continued help of the spineless Gonzales, who often sided with Cheney and Addington over the objections of the Justice Department and even his own staff.

Even when, as predicted, Cheney's views were repudiated in court, he refused to accept reality. For example:

When a U.S. District Court ruled several months later that Padilla had a right to counsel, Cheney's office insisted on sending [solicitor general Ted] Olson's deputy, Paul Clement, on what Justice Department lawyers called "a suicide mission": to tell Judge Michael B. Mukasey that he had erred so grossly that he should retract his decision. Mukasey derided the government's "pinched legalism" and added acidly that his order was "not a suggestion or request."

Even after Cheney's views had been soundly rejected by the Supreme Court -- a defeat that probably helped prompt Olson to resign -- Cheney exercised veto power over the choice of Olson's successor.

Later, Cheney overrode the Defense Department when it tried to formulate rules for the treatment of prisoners after Abu Ghraib.

In late August 2005, [Deputy Defense Secretary Gordon] England called a meeting of nearly three dozen Pentagon officials, including the vice chief and top uniformed lawyer for each military branch. Matthew Waxman, the deputy assistant secretary for detainee affairs, set the agenda.

Waxman said that the president's broadly stated order of Feb. 7, 2002 -- which called for humane treatment [of prisoners], "subject to military necessity" -- had left U.S. forces unsure about how to behave. The Defense Department, he said, should clarify its bedrock legal requirements with a directive incorporating the language of Geneva's Common Article 3. That was exactly the language -- prohibiting cruel, violent, humiliating and degrading treatment -- that Cheney had spent three years expunging from U.S. policy.

"Every vice chief came out strongly in favor, as did every JAG," or judge advocate general, recalled Mora, who was Navy general counsel at the time.

But Cheney objected. Guess who won?

In the following year, Congress and the courts imposed most of those restrictions, and Waxman's successor pushed through the directive Cheney had derailed. But Cheney still found loopholes. Restrictions on torture applied to the Pentagon, not the CIA; and while Bush publicly promised to close down secret CIA prisons, he didn't promise not to open new ones -- and so he did.

For all Cheney's bluster about the supremacy of national security concerns, he has shown a willingness to subordinate those to political concerns. The article describes the case of Australian David Hicks. In plea negotiations with Hicks, they offered to jail him for "only" 20 years in exchange for a guilty plea and an affidavit that he hadn't been tortured as his lawyers claimed.

But then Cheney visited Australia, where he was told that the Hicks case threatened the re-election of Prime Minister John Howard.

Shortly after Cheney returned from Australia, the Hicks case died with a whimper. The U.S. government abruptly shifted its stance in plea negotiations, dropping the sentence it offered from 20 years in prison to nine months if Hicks would say that he was guilty. ... The deal, negotiated without the knowledge of the chief prosecutor, Air Force Col. Morris Davis, was supervised by Susan J. Crawford, the senior authority over military commissions. Crawford received her three previous government jobs from then-Defense Secretary Cheney.

Thus Hicks -- up until that time portrayed as a dangerous terrorist who deserved to be locked up for a long time -- was returned to Australia with a short sentence in order to bolster Howard's re-election bid.

There's a lot more in the stories themselves. And one of the reporters, Barton Gellman, will be online in a couple of minutes answering questions about the series. Meanwhile, stay tuned for Parts III and IV.

Cheney, politics, midtopia

Cheney the Legislator update

I've colonized the Friday open thread over at Stubborn Facts in search of a respectable legal opinion on Cheney's claim that his office isn't part of the executive branch. You can follow the discussion there if you like, and if either Pat or Simon weighs in with a fuller opinion I'll link to it.

Update: Both the L.A. Times and the Washington Post weigh in -- with the Post piece doing a good job of outlining Cheney's long obsession with secrecy. It also quotes the Justice Department saying that it's looking into the matter.

Update II: The press grills White House spokeswoman Dana Perino about the matter, and gets the runaround.

As you get further into it, she seems to be saying that yes, the president meant for the OVP to be exempt from reporting requirements. But she says that's because the president views the OVP as being essentially the same as the office of the president in this matter. The question, then, is why the president's office and the White House are complying with the EO if they're exempt. Again, it's the OVP that's the outlier.

And she doesn't even try to address Cheney's argument that his office isn't part of the executive branch.

She does, however, seemingly answer one of my questions from yesterday, which is that Congress has no authority to enforce or otherwise question how an EO is being carried out. They can attack the EO itself in various ways, but if Bush wants to let Cheney run wild, he can.

Cheney, politics, midtopia

Cheney secedes from the executive branch

Dick Cheney is a wonder.

Remember back in 2001 when he basically invited the oil industry to write the administration's new energy policy? When people wanted to know who attended the advisory meetings Cheney refused to say, claiming executive privilege -- that is, as a member of the executive branch, he had a right to receive "free and frank" advice without those advisors having to worry about their names or words being made public. He won a court case on the matter using that argument.

Fast forward to 2004, where in order to -- again -- maintain the cloak of secrecy over his actions, Cheney claimed that the Office of the Vice President isn't part of the executive branch, exempting it from an executive order that lays out how agencies are supposed to handle and safeguard classified information. This came to a head when the VP's staff blocked an inspection by the National Archives office tasked with making sure the order was being followed.

The National Archives had a cow, to which the VP responded with ... silence. So the Archives wrote to Attorney General Alberto Gonzales. This time the VP responded -- by attempting to abolish the Archives office doing the questioning. Gonzales' response was ... silence.

The Veep's legal reasoning seems worthy of Alberto Gonzales. It asserts that the Office of the Vice President isn't an executive branch agency for the purposes of the executive order because it has both legislative and executive functions -- for instance, presiding over the Senate and casting a vote when necessary to break ties.

Not only is this assertion novel -- no previous VP has made such a claim -- but it's also a ludicrous technicality. The Vice President's legislative duties are narrow and relatively minor, and don't involve disclosures of classified information. Essentially all of the office's handling of classified data comes through its executive duties. The argument appears to make a distinction between the VP (an executive branch officer) and his office (which has mixed duties), allowing the office to claim executive privilege when convenient and legislative-branch status when convenient.

The Archives lay out the argument in a letter to Cheney (pdf) and the subsequent letter to Gonzales (pdf).

The common thread, of course, is Cheney's obsessive need for secrecy and nonaccountability -- as well as his penchant for lashing out at perceived enemies. In this case it's particularly nutty: Cheney is asserting that the government should simply trust that his office is handling classified information appropriately. This arguably places his dislike of accountability above the demands of national security.

Henry Waxman, chairman of the oversight committee, summed things up in a fiery 8-page letter (pdf) requesting answers from the VP's office by July 12. Expect the VP's response to be either silence or a dismissal of Congress' authority in this matter. The latter point might even be valid: Congress' oversight authority over the handling of executive orders is generally limited to attacking the orders themselves (if they lack statutory authority), not questioning whether they were carried out. It doesn't appear that Congress has the power to compel the executive branch to follow or enforce its own orders.

What Congress does have, however, is the power to embarass. Cheney seems immune to embarassment, but stonewalling or public defiance will simply mean that much more political capital drained from an administration that is already running on fumes in that department. And the fault for that lies with Cheney and his congenital and destructive secretiveness, not Congress.

Update: Pulling from the discussion in the comments, I wanted to highlight the aspect of the Executive Order that discusses what government bodies are covered. Section 6.1(b) reads as follows:

"Agency" means any "Executive agency," as defined in 5 U.S.C. 105; any "Military department" as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into the possession of classified information.

Now, Cheney's argument is that the VP's office isn't part of the executive branch, his earlier claims of "executive privilege" notwithstanding. There could be an interesting case to be made there, seeing as how his salary is actually paid by the Senate and his sole constitutional duty is presiding over the Senate. On the other hand, the job of Vice President is laid out in detail in Article II of the Constitution -- the article describing the executive branch.

Then there's the two centuries worth of practice, precedent and legal rulings that undermine Cheney's claim. At USA.gov, the government's directory of itself, the vice president is listed under the "executive office of the President." Besides having an office in the White House, he also has an office in the Eisenhower Executive Office Building -- which, notably, contains executive offices. He's part of the president's Cabinet, something no legislative branch member is. The list goes on.

Besides, if he's not part of the executive branch, then he's an employee of Congress and can be subpoenaed or otherwise overseen at will. I'm sure Congress would love to exercise that newfound power.

Cheney, politics, midtopia

More obsessive administration secrecy

First we had the White House declaring that its visitor logs were classified. Now, in yet another example of the "none of your damn business" school of government, it turns out the vice president has done the same.

A lawyer for Vice President Dick Cheney told the Secret Service in September to eliminate data on who visited Cheney at his official residence, a newly disclosed letter states. The Sept. 13, 2006, letter from Cheney's lawyer says logs for Cheney's residence on the grounds of the Naval Observatory are subject to the Presidential Records Act.

Such a designation prevents the public from learning who visited the vice president.

Note that there is no high-minded principle involved here. The White House classified its logs to keep people from finding out how many times Jack Abramoff had visited. Cheney classified his logs to keep people from finding out how often he was visiting with leaders of the religious right.

The records are preserved and go into the presidential records of the Bush administration. But other Bush orders (facilitated by none other than Alberto Gonzales) give administrations the right to keep documents out of public view forever.

It's time for Congress to address such government records clearly and directly, spelling out that they are public documents that can only be withheld for certain narrow reasons -- and avoiding embarassment or the judgement of history are not among them.

secrecy, politics, midtopia

Life under a gag order

If you want to get your inner civil libertarian riled, read on.

We know, of course, that the FBI has been abusing its authority to seek information without a warrant through National Security letters.

What you may not know is that keeping such abuse secret is made much easier by another FBI power: the gag order. If you're served an NSL you're not allowed to tell anyone -- even if the request is obviously improper. Even after the FBI has abandoned efforts to get the information from you, you cannot tell anyone they tried.

Here, then, is one person's story about living under an NSL gag order.

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Rather than turn over the information, I contacted lawyers at the American Civil Liberties Union, and in April 2004 I filed a lawsuit challenging the constitutionality of the NSL power. I never released the information the FBI sought, and last November the FBI decided that it no longer needs the information anyway. But the FBI still hasn't abandoned the gag order that prevents me from disclosing my experience and concerns with the law.

In other words, the people with direct experience with NSLs are prohibited from using that experience to challenge the FBI's power. A practical consequence of that is that debate over that power is truncated:

Without the gag orders issued on recipients of the letters, it is doubtful that the FBI would have been able to abuse the NSL power the way that it did. Some recipients would have spoken out about perceived abuses, and the FBI's actions would have been subject to some degree of public scrutiny....

I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law.

Here's what it's like to have a gag order imposed:

Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case -- including the mere fact that I received an NSL -- from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

There are legitimate security concerns related to NSLs. Notably, you don't want to tip off a suspect to the existence of an active investigation, particularly the information sought and why. But those concerns can be addressed more narrowly. A broad gag order is the equivalent of using a sledgehammer where a scalpel is needed, and it does more to protect the FBI from scrutiny than it does to protect national security.

Congress has warned the FBI that if they don't clean up their act, they will lose the ability to use NSLs. But Congress needs to do more than that: they need to revise the gag order provisions to protect national security in a way less damaging to democratic debate and less violative of civil liberties.

politics, midtopia

Bush's hard but brittle line

President Bush has offered to make his senior aides available to Congressional investigators in the prosecutor case -- but not under oath, and with no transcripts.

Bush said his White House counsel, Fred Fielding, told lawmakers they could interview presidential counselor Karl Rove, former White House Counsel Harriet Miers and their deputies — but only on the president's terms: in private, "without the need for an oath" and without a transcript.

The president cast the offer as virtually unprecedented and a reasonable way for Congress to get all the information it needs about the matter.

"If the Democrats truly do want to move forward and find the right information, they ought to accept what I proposed," Bush said. "If scoring political points is the desire, then the rejection of this reasonable proposal will really be evident for the American people to see."

"Reasonable"? Maybe. On the one hand, the demand that there be no oath sounds like more than it is: the aides would still be legally required to tell the truth. But the request for no transcripts is an odd one. Are investigators supposed to put a report together from memory? Why is Bush so adamant that there be no record of the conversations? Is this just more knee-jerk secrecy from the administration that redefined obsessive secrecy?

Reject the offer, Bush warned, and it would provoke a Constitutional showdown. He's right about that: it's unclear just what power Congress has -- or should have -- to subpoena senior members of the executive branch.

The Senate offers a good (if potentially self-serving) primer on Congressional subpoena power here (pdf). It notes that the power to subpoena is not written into the Constitution, but falls under Congress' oversight power. It points to the writings of myriad Founding Fathers attesting to that fact. George Mason noted that legislatures "possess inquisitorial powers." Another founder, James Wilson, said the House of Representatives forms "the grand inquest of the state."

Still, the power, being implied, is somewhat ill-defined. Congress could easily pass laws compelling private citizens to appear. But what of executive branch members? Alexander Hamilton and George Washington both had run-ins with Congressional investigators, though both ultimately complied with Congressional demands.

In 1927, the Supreme Court finally ruled in an executive branch case, McGrain v. Daugherty. It said Congress could investigate the executive branch in order to properly oversee it -- a reaffirmation of legislative supremacy in the Constitutional balance of powers. In 1957, in Watkins v. United States, the Court ruled that such power is broad, but it must pertain to a legitimate task of Congress.

The one exception: the implied power of "executive privilege", in which the president is allowed to keep certain internal deliberations private to encourage candid and forceful discussion among his advisers. But that power is less well-established and more limited than the subpoena power. In the most notable case, United States v. Nixon, President Nixon was compelled to turn over the Watergate tapes. When the President asserts only a generalized need for confidentiality, the privilege does not overcome the interests of governmental oversight or (in the case of Watergate) that of criminal defendants.

So what Bush is threatening is a Constitutional showdown between two implied powers: the power to subpoena executive officials, and the power of executive privilege. Both sides have long avoided such a showdown, for fear of an adverse decision. And the judicial branch has encouraged such vagueness, not wanting to get involved in such an interbranch dispute. It's not pure political cowardice at work, either. With neither side on clear constitutional footing, they tend to compromise and reach solutions that solve the problem at hand without backing either branch into a corner, or forcing the Supreme Court to start deciding which privilege dominates when.

But if it comes to it, I think Bush will lose. He is asserting a generalized privilege, while Congress is attempting to investigate a specific potential case. Much will turn on whether the investigation is well-founded or simply a fishing expedition; look for the White House to argue that there is no evidence of wrongdoing, and thus no justification for an investigation. But assuming it is deemed legitimate, then the Watergate precedent suggests the needs of government will win out over the claim of privilege.

Congress thinks so, too; they've already rejected Bush's offer and are preparing to issue subpoenas on Wednesday. I hate to predict what Bush will do, but look for him to fold on this one. His current White House counsel, Fred Fielding, is a legal realist. Whereas Alberto Gonzales would obediently fight a privilege claim to the bitter, losing end, Fielding is more able to predict who has the winning hand. He will probably advise Bush accordingly.

And then consider the irony: The two strongest proponents of executive power in recent history -- Richard Nixon and Bush -- have ended up doing the most to weaken it through their overreach.

Update: Captain Ed surveys the same terrain and reaches the opposite conclusion, based on the argument that the investigation is groundless.

Also, here's a Clinton-era case in which administration officials were ordered to comply with a subpoena. The full text of the decision is here. Note that in both this and the Nixon case there was a pending criminal investigation, which strengthened Congress' hand. In the prosecutor case there is, as yet, no special counsel or other such legal investigation, which tends to strengthen Bush's hand.

And there was some delicious commentary on it from a familiar name: Tony Snow. He wrote the following in an op-ed piece in the St. Louis Post-Dispatch in 1998.

Evidently, Mr. Clinton wants to shield virtually any communications that take place within the White House compound on the theory that all such talk contributes in some way, shape or form to the continuing success and harmony of an administration. Taken to its logical extreme, that position would make it impossible for citizens to hold a chief executive accountable for anything. He would have a constitutional right to cover up.

Chances are that the courts will hurl such a claim out, but it will take time.

One gets the impression that Team Clinton values its survival more than most people want justice and thus will delay without qualm. But as the clock ticks, the public's faith in Mr. Clinton will ebb away for a simple reason: Most of us want no part of a president who is cynical enough to use the majesty of his office to evade the one thing he is sworn to uphold -- the rule of law.

subpoena, Gonzales, politics, midtopia

Plame testifies before Congress

As I mentioned a few days ago, Valerie Plame is testifying before Congress today, as Democrats try to keep the Plame scandal going as long as possible now that the Lewis Libby trial is over. It's a transparent political move, but at the same time it's the first time we've got Plame under oath, so we may get some good questions and answers that we should have gotten long ago.

For now, two links: the AP story on the hearing and a transcript of the opening remarks.

The most notable statements so far:

1. Plame categorically denied having anything to do with sending her husband to Niger, saying "I did not recommend him. I did not suggest him. There was no nepotism involved. I did not have the authority."

2. She repeatedly described herself as a "covert operative," saying she worked undercover and traveled abroad on secret CIA missions. But she says she doesn't know if she was covert in a legal sense. She also says that shouldn't have mattered -- that White House officials, realizing she worked for the CIA, should have checked before discussing her with the press.

More assertive is the statement Rep. Henry Waxman made in opening the session. The relevant quote from the transcript:

But General Hayden and the CIA have cleared these following comments for today's hearing.

During her employment at the CIA, Ms. Wilson was undercover. Her employment status with the CIA was classified information, prohibited from disclosure under Executive Order 12958.

At the time of the publication of Robert Novak's column on July 14, 2003, Ms. Wilson's CIA employment status was covert. This was classified information.

Got that? The CIA is saying (by clearing the comment with Waxman) that the fact Plame worked for the CIA was a secret, and thus White House officials revealed classified information.

Republican Tom Davis admits as much in his remarks:

Let me state at the outset that the outing of Mrs. Wilson's identity was wrong. And we have every right to look at this and investigate it.

His argument, though, is that nobody at the White House knew Plame's identity was classified because the CIA didn't make it clear that it was.

No process can be adopted to protect classified information that no one knows is classified, just as no one can be prosecuted for unauthorized disclosure of information that no one ever said was protected. So this looks to me more like a CIA problem than a White House problem. If the agency doesn't take sufficient precautions to protect the identity of those who engage in covert work, no one else can do it for them.

True enough. But that doesn't address Plame's argument: That the simple fact she worked at the CIA should have served as a red flag. A prudent administration would have checked with the agency before discussing any CIA employee with the press.

Davis is arguing what the White House knew; Plame is arguing what the White House should have known.

It's hard to disagree with either of them, given the facts we know at the moment. That's why it's highly probable no crime was committed, even while the administration is properly flagellated for being careless with Plame's identity.

More updates as events warrant.

Update: Another witness testified about the Bush administration's lac, of curiosity about the leak, despite promises to the contrary:

Dr. James Knodell, director of the Office of Security at the White House, told a congressional committee today that he was aware of no internal investigation or report into the leak of covert CIA agent Valerie Plame....

Knodell said that he had started at the White House in August 2004, a year after the leak, but his records show no evidence of a probe or report there: "I have no knowledge of any investigation in my office," he said.

Rep. Waxman recalled that President Bush had promised a full internal probe. Knodell repeated that no probe took place, as far as he knew, and was not happening today.

Knodell said he had "no" conversations whatsoever with the president, vice president, Karl Rove or anyone about the leak.

Hmm. The administration promised to investigate itself and then didn't. I'm shocked, I tell you; shocked.

Update II: The video of Plame's testimony.

CIA, Plame, politics, midtopia

Dogpile on Fredo!

Body blow! Body blow! Body blow! How long can Alberto Gonzales remain standing?

The Senate Judiciary Committee has approved subpoenas in its probe into the firing of eight federal prosecutors, just in case it's necessary to get the prosecutors and several current and former Gonzales aides to testify. Although Gonzales has said his aides will testify voluntarily, a subpoena will probably be needed for at least one witness: Kyle Sampson, who until last week was Gonzales' chief aide.

Meanwhile, a second Republican Senator, Gordon Smith of Oregon, has joined John Sununu in calling for the AG's ouster. And A Republican House member, as yet unidentified, apparently also intends to call for him to step down.

The root of this case is less about the motivation behind the firings and more about how it was communicated to Congress -- as well as Gonzales' denials that the White House was involved. Thus the emergence of e-mails showing Karl Rove was involved in the discussion both paints Gonzales as a liar and has partisans salivating at the possibility of finally nailing Bush's Brain.

A midday e-mail between two White House staffers, dated Jan. 6, 2005, was titled, "Question from Karl Rove."

"Karl Rove stopped by to ask you (roughly quoting), `How we planned to proceed regarding US Attorneys, whether we were going to allow all to stay, request resignations from all and accept only some of them, or selectively replace them, etc.,'" Colin Newman, a legal aide in the White House counsel's office, wrote deputy counsel David Leitch.

This doesn't indicate Rove was involved in deciding who to fire, but it does show he was in the loop. And the reply from Sampson (to whom Leitch forwarded the e-mail) shows that political loyalty was a factor in the deliberations.

"Judge and I discussed briefly a couple of weeks ago," Sampson wrote, referring to Gonzales, a former Texas state Supreme Court justice. He said the Justice Department was looking at replacing "underperforming" prosecutors. "The vast majority of U.S. Attorneys, 80-85 percent, I would guess, are doing a great job, are loyal Bushies, etc., etc.," he said.

Now, was it a big factor, or was Sampson merely trying to put the best spin on things for Bush's political advisor? We don't know. But again, these e-mails undermine Gonzales' assertions to Congress -- and Congress doesn't like being lied to.

The Senate may end up subpoenaing Rove, though they've put off a decision until Marc 22.

Finally and most explosively, yet a third Gonzales scandal may be rearing its head. The National Journal, citing government records and anonymous officials, says Gonzales advised Bush to shut down a Justice Department probe into the NSA eavesdropping program -- even after learning that he would likely be a subject of the inquiry (here's what I wrote about it back in May, when the probe was killed).

The tactic used to block the probe -- denying security clearances to the investigators involved -- was unusual to begin with. Now add in the spectre of Gonzales the AG urging Bush to derail an inquiry that would have looked into the actions of Gonzales the White House counsel.

The National Journal notes the no-win nature of this problem:

Current and former Justice Department officials, as well as experts in legal ethics, question the propriety of Gonzales's continuing to advise Bush about the investigation after learning that it might examine his own actions. The attorney general, they say, was remiss if he did not disclose that information to the president. But if Gonzales did inform Bush about the possibility and the president responded by stymieing the probe, that would raise even more-serious questions as to whether Bush acted to protect Gonzales, they said.

Either way, Gonzales is screwed. If he didn't tell Bush, he's toast. If he did tell Bush, he's still toast, because he'll be thrown overboard to protect the president.

The only path that saves him is if he can claim, without being contradicted, that he did not advise Bush about the probe. That path remains open for now: the National Journal relies on anonymous sources to make the advisory claim, and that hardly constitutes proof.

But even if he avoids that trap, the timing of the decision to end the probe was interesting. The Journal -- again citing anonymous sources -- says the decision came after investigators had notified the administration of their investigative strategy, which involved questioning some senior Justice Department lawyers who had clashed with Gonzales over the NSA program when he was White House counsel. The Journal describes worries among political appointees that investigators might conclude the administration had deliberately sidestepped the law.

Then there's this gem:

In a March 21, 2006, memo citing his inability to obtain security clearances, Jarrett, the head of OPR, wrote to Paul McNulty, the deputy attorney general, complaining that OPR was being "precluded from performing its duties."

In contrast, Jarrett noted, the administration promptly approved "the Criminal Division's request for the same security clearances for a large team of attorneys and FBI agents that was investigating who initially leaked details of the NSA eavesdropping program to The New York Times."

Security clearances for investigations the White House likes? No problem. Security clearances for investigations it doesn't like? Forget it.

In response to the National Journal story, the House Judiciary Committee is demanding answers from Gonzales.

The dogs smell blood.

Update: I'm not saying this is really significant, but I find it interesting that a site like Right Wing Nuthouse puts up a fairly standard "this is a made-up scandal" post -- and for the most part the only commenters are people who vehemently disagree with him. A couple of posters show up to take half-hearted swipes at liberals -- but nobody defends Gonzales.

ethics, NSA, Gonzales, politics, midtopia

The disaster of Alberto Gonzales

It's always the small things that bring people down.

Back when Alberto Gonzales was nominated for attorney general, he was under fire for being one of President Bush's worst enablers -- finding dubious legal justification for ignoring warrants, gutting FISA, torture, almost unlimited executive power and the odious "enemy combatant" designation, under which a U.S. citizen was detained for more than three years without benefit of trial, charges, lawyers or habeus corpus.

None of that, apparently, was enough to prevent him from being confirmed. And he had one thing going for him: He wasn't John Ashcroft, a man so generally loathed that it would be all but impossible to do worse.

As Attorney General he continued carrying water for Bush, threatening journalists with jail, and denigrating habeus corpus. But that didn't threaten his job.

Then came the nakedly political firings of eight U.S. attorneys, and the revelations that the FBI had abused its Patriot Act powers.

And guess what? It's the former, more than the latter, which may end up taking Gonzales down.

The New York Times called for his resignation this weekend, citing a litany of complaints. So did Democratic Sen. Charles Schumer. Pressure has mounted amid revelations that the White House was directly involved in the decision to fire the prosecutors, and earlier today Gonzales' chief of staff, Kyle Sampson, resigned. The growing controversy finally led Gonazales, who had dismissed the uproar as an "overblown personnel matter", to say publicly that the firings were mishandled.

It seems to be a case of a relatively minor last straw tipping the balance of opinion on a roundly disliked appointee.

The New York Times said it best, I think:

During the hearing on his nomination as attorney general, Alberto Gonzales said he understood the difference between the job he held — President Bush’s in-house lawyer — and the job he wanted, which was to represent all Americans as their chief law enforcement officer and a key defender of the Constitution. Two years later, it is obvious Mr. Gonzales does not have a clue about the difference.

Gonzales can take solace in one impressive achievement: he may have secured John Ashcroft's legacy. Most people thought it impossible to be a worse attorney general than Bush's first nominee. But Gonzales has silenced the doubters. A dubious achievement, perhaps, but an achievement nonetheless.

Fire him. Not merely for the prosecutor kerfuffle, which while sleazy is at least constitutional. No, fire him for the full record of his achievements, and the disrepute he has brought upon our justice system and America's reputation.

Update: ThinkProgress (BIG grain of salt) thinks it has caught Gonzales lying under oath; Gonzales, meanwhile, categorically rejects the idea of resigning.

Update II: Hillary Clinton joins the chorus calling for Gonzales' resignation.

Gonzales, politics, midtopia

Americans are sensible

I like Americans. They may not always pay attention, but when they finally do they usually get it right.

Americans increasingly suspect the federal government has become cloaked in secrecy, a concern they don't have with their local and state governments.

People also overwhelmingly believe that their federal leaders have become sneaky, listening to telephone conversations or opening private mail without getting court permission, according to a survey of 1,008 adults commissioned by the American Society of Newspaper Editors.

By a 2-1 margin, people want FBI agents and other investigators to obtain search warrants before monitoring private communications, even if they suspect terrorism. And more than a quarter of the people in the survey said they suspect their own phone calls and letters have been intercepted.

Warrants? What sort of commie demands warrants before searches can be conducted?

Oops, sorry. I was channeling "security at all costs" proponents for a second there.

The expressed worry that their own communications have been intercepted is almost certainly overblown, unless you're talking about one of the big datamining operations that essentially sucks in everything but analyzes very little of it in detail. There simply aren't enough people in the NSA, the CIA and the FBI put together to monitor the calls of a quarter of the population.

But it does show that people are thinking about how such things might affect them, moving past the simplistic "why are you so concerned about the rights of terrorists" demonizing. I'm not concerned about the rights of terrorists; I'm concerned about the rights of all citizens and detainees, including suspected terrorists.

Fully 70 percent think the federal government is secretive. They were split (46 percent to 45 percent) on whether the press should have reported on the NSA eavesdropping program; fewer people approved of revelations regarding CIA torture (43%), CIA secret prisons (41%) and (oddly) disclosure of the identities of the inmates held at Guantanamo (38%). Approval of disclosure rose with educational attainment.

Americans, as a whole, apparently like their freedoms, and aren't scared enough to give them up just yet.

civil liberties, politics, midtopia

Congress kept in dark on intel programs

Rep. Pete Hoekstra wrote an angry letter (pdf) to President Bush, complaining that he had just found out about various intelligence programs that the administration hadn't bothered briefing Congress about.

"There was at least one major -- what I consider significant -- activity that we had not been briefed on that we have now been briefed on," Hoekstra said on "Fox News Sunday." "Some people within the intelligence community brought to my attention some programs that they believed we had not been briefed on. They were right."

Hoekstra said the briefings took place after he complained in a May 18 letter to President Bush of hearing about "alleged Intelligence Community activities" not described to committee members in classified briefings. "If these allegations are true," he wrote to Bush, "they may represent a breach of responsibility by the Administration, a violation of law and . . . a direct affront to me and the Members of this committee."

Two things are interesting about this:

1. He's clearly referring to programs other than the ones we already know about. It shouldn't surprise anyone that such programs exist, but it's worth keeping in mind.

2. The administration appears to ignore its duty to inform Congress about intelligence activities on a fairly regular basis. That may be a generalized executive branch habit, not just one peculiar to this administration. But that doesn't make it acceptable.

Congress should not have to find out about briefable activities and then demand briefings; that undermines the whole idea of Congressional oversight. And it's not like this is resolved. Even after receiving the briefings he sought, Hoekstra said he still thinks the administration is not fulfilling its legal obligations to inform Congress.

I agree. But I'm forced to take this with a grain of salt, seeing as how Hoekstra has been acting a bit idiotic of late.

Hoekstra, terrorism, Bush, politics, midtopia

Quick response at Gitmo

In the aftermath of the deaths of three inmates at the Guantanamo Bay detention facility, the Bush administration.... kicked reporters out.

Reporters with the Los Angeles Times and the Miami Herald were ordered by the office of Secretary of Defense Donald Rumsfeld to leave the island today.

A third reporter and a photographer with the Charlotte Observer were given the option of staying until Saturday but, E&P has learned, were told that their access to the prison camp was now denied.

Despite the timing, the Pentagon said the expulsions were unrelated to the deaths.

A Pentagon spokesman, J.D. Gordon ... asserted that the move was related to other media outlets threatening to sue if they were not allowed in. He did not say why, instead of expelling the reporters already there, the Pentagon did not simply let the others in, beyond citing new security concerns.

Security concerns? I understand having to develop tighter controls over the detainees in the aftermath of the suicides. I don't see how that involves kicking out reporters. The pressure from other news organizations does create a dilemma -- how to decide who to let in? How to manage them once they arrive? -- but those are solvable.

Kicking out the reporters just makes it look like we're trying to hide something. That's just compounding the PR damage that began with the "PR stunt" explanation for the deaths.

Investigate the deaths. Report the findings. And let reporters cover the whole thing. Only with transparency can we dispel suspicions about what happened at Gitmo.

Oh, and shut the Gitmo facility down. Not because of the deaths; but because it's a legal, moral and PR disaster.

Update: David Ignatius says much the same thing.

suicide, terrorism, Guantanamo, Gitmo, politics, midtopia

NSA spying goes to court

Today a judge will hear arguments in an ACLU lawsuit against the NSA's warrantless eavesdropping program.

The suit in Detroit, like one filed in New York by the Center for Constitutional Rights, asserts that the NSA's eavesdropping program has violated free-speech and privacy rights and has had a chilling effect on the communications of potential surveillance targets.

The major problem with this suit will be the Catch-22 of "standing". Before a plaintiff can sue, they usually have to show that they were affected by the behavior in question, or that they're otherwise qualified to speak for affected parties.

The problem is that the NSA (for obvious reasons) has refused to say who it is monitoring. So a judge may dismiss the suit because the ACLU cannot show it is affected.

The ACLU is trying to get around that by saying the mere existence of the program affects it:

None of the plaintiffs have offered proof they were spied on. Rather, they maintain that the simple existence of the program has impeded their ability to perform their jobs as journalists and lawyers.

"The program is causing concrete and specific injury to plaintiffs and others," the ACLU said in a motion in March, asking U.S. District Judge Anna Diggs Taylor to declare the program illegal and to order its immediate halt.

A brief by Ann Beeson and other ACLU attorneys said the program was disrupting plaintiffs' ability "to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and engage in other activity protected by the 1st Amendment."

The ACLU attorneys contend that because President Bush and several Cabinet members, including Atty. Gen. Alberto R. Gonzales, have publicly acknowledged the existence of the program, Taylor has sufficient evidence to rule on the legality of the program without further fact-finding.

It's worth a try. It seems to me, though, that in important cases like this there should be available a broader form of standing, one that allows a court opinion to be rendered without requiring proof that the plaintiff has been specifically targeted. It would be a class-action suit of sorts, following the logic that "we're all affected by this program, either directly or indirectly, so we all have standing to question it."

Meanwhile, Arlen Specter is keeping the issue alive in Congress, threatening to subpoena phone company executives if the administration doesn't start cooperating.

"If we don't get some results, I'm prepared to go back to demand hearings and issue subpoenas if necessary," Pennsylvania Sen. Arlen Specter told CNN's "Late Edition."

Tough words, and it goes nicely with his assertion that there is "no doubt" the program violates FISA -- which should be blindingly obvious. I approve of his proposed solution: that Bush let the FISA court decide if the program is constitutional. That addresses both security and constitutionality concerns.

But since Bush has not traditionally liked restrictions on his ability to do as he pleases, and since he has asserted the "inherent authority" to conduct such surveillance, I don't expect him to suddenly submit to the judiciary's authority.

If that happens, I expect Specter and others in Congress to hold the administration accountable. The country is not served by Congress rolling over, or shrugging and saying "well, we tried." One way or another, the legality of the NSA program needs to be settled. And if the administration is unwilling to cooperate in that endeavor, then it is time for Congress and the courts to exercise their constitutional obligations and begin acting like the "checks and balances" they were designed to be.

Update: The Washington Post covers the hearing.

eavesdropping, terrorism, Specter, NSA, politics, midtopia