No access means no investigation — redux

May 24, 2006

This seems to be part of a pattern.

The [tag]Federal Communications Commission[/tag] will not pursue complaints about the National Security Agency’s access to millions of telephone records because it cannot obtain classified material, the commission’s chairman said in a letter released on Tuesday.

Representative Edward J. Markey, Democrat of Massachusetts, had asked regulators to investigate a report in USA Today that AT&T, Verizon and BellSouth turned over records of phone calls to the security agency as part of efforts to compile a database to track terrorist activities.

“The classified nature of the N.S.A.’s activities makes us unable to investigate the alleged violations,” said the commission’s chairman, [tag]Kevin Martin[/tag], a Republican, in the May 22 letter released by Mr. Markey.

This comes just two weeks after the [tag]Justice Department[/tag] announced it would not conduct a review whether the NSA’s warrantless-search program was legal because it couldn’t obtain classified material either.

It’s quite a system, isn’t it? The [tag]NSA[/tag], with [tag]Bush[/tag]’s approval, launches legally-dubious [tag]surveillance[/tag] efforts with cooperation from telecommunications companies. The Justice Department isn’t allowed to review the program, the [tag]FCC[/tag] isn’t allowed to review the program, and Congress is allowed but doesn’t feel like it.

May 24, 2006 at 1:23 pm

It is a truly remarkable testament to the legal skills of Patrick Fitzgerald that he could find grounds to bring any charges whatsoever against a White House that classifies absolutely everything of dubious legality.

Even scarier is the administration’s aggressive use of the “state secrets privilege” doctrine. If you haven’t heard about it yet, the best write up I have seen is in Slate.

This administration has wholly declared itself above the law, above any questioning regarding the law, and above any accountability of any other kind — and the other allegedly co-equal branches of government have proven wholly unwilling to provide the slightest check or balance.

I think what we’re seeing is the playing out of an anger turned psychosis on the part of a very strong, persuasive, and driven individual who has worked for years for an unrestrained, unexamined executive. Here’s John Dean:

“Clearly, Vice President Dick Cheney is the force behind the White House’s effort to enhance presidential power, and limit the powers of those on Capitol Hill. This is evident because President Bush simply does not possess the mental acumen, or experience, to play the game his White House has instituted; but Cheney does. This is not to say Bush doesn’t embrace the undertaking, for he obviously does, but simply that Cheney is almost certainly the moving force behind it.

“Indeed, Cheney has all but admitted the point. ‘In thirty-four years, I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job,’ Cheney told ABC’s ‘This Week’ in January 2002.

“His reference to ‘thirty-four years’ is quite clear. About thirty-four years ago, in 1969, Dick Cheney joined the Nixon Administration – serving in a number of positions at the Cost of Living Council, and later the Office of Economic Opportunity. When Nixon was forced from office, Cheney helped Vice President Ford make the transition to the Oval Office and in 1975, Cheney became President Ford’s White House chief of staff.

“Cheney’s reference to the erosion of presidential powers thus appears to relate to the Nixon presidency and Watergate, and then to the Reagan presidency and Iran-contra. Accordingly, one might at first wonder if he was referring to the Independent Counsel Law. But that law has expired. So while no law eroded presidential powers more, nor made it more difficult for the president to do his job, than the Independent Counsel law, that law cannot be Cheney’s target.

“What then is Cheney’s target? History suggests that it is probably what he sees as the expansion of congressional power vis-a-vis the president. Besides the folly of the Independent Counsel law, this perception is probably what bothers Cheney most – and what he would most like to remedy.

“Cheney watched Nixon ‘throw down a gauntlet to Congress, the bureaucracy, the media, and the Washington establishment and challenge them to epic battle’ – to quote the disgraced former president’s memoirs. But for Watergate, Nixon would have succeeded.”

The challenges from Watergate investigators and those who opened up Iran-Contra would seem to have been taken very personally by this guy. He’s got a team around him (quite apart from blood-brother Rumsfeld) which forms his little pay-the-populists-back army. Apparently David Addington looms extra-large in this group.

The FCC, the NSA and the DOJ are all wholly-owned subsidiaries of the Bush administration anyway and take their orders from the same boss, so who would be surprised when they roll over and give up without a fight?

What’s really annoying is when they get together for lunch (at taxpayer expense, no doubt) and snicker about how naive the public is to think that either the DOJ or the FCC would even bother to ask, knowing what the answer would be before the words even passed their lips.

And the reason this isn’t obstruction of justice writ large is…

…oh, right, because the president says so. Gotcha. Thanks for playing.

We really do need to take back the House this November. I’m beginning to obsess over that precious subpoena power the way Gollum did over the ring. Unfortunately, The Hill today has a story that begins:

During a private meeting in San Francisco last week, former Rep. Dick Gephardt (D-Mo.) expressed doubt that Democrats will win control of the House this fall, according to knowledgeable sources.

I deeply hope Gephardt is as wrong as I’ve always thought he was.

“Because,” added Gephardt, “if I couldn’t do it, NOBODY could! And I tried *FIVE* times! It’s, like, IMPOSSIBLE!!!!1111111”

I *suppose* it’s a sign of party discipline that at least the reporters at the papers (NYT, The Hill) who want to write their usual “Democrats in Disarray” stories are forced to talk to *former* Democratic politicians and personalities.

Thanks, Zeitgeist, for the Slate link. The bit that nails it for me is (my emphasis) :

The troubling shift today is that in el-Masri and other similar lawsuits—almost all of which involve important challenges to the government’s conduct since Sept. 11—the administration has been routinely asserting the privilege to dismiss the suits in their entirety by claiming that for it to participate in the trials at all would mean revealing state secrets. In other words, in addition to relying on the state secrets doctrine to an unprecedented degree, the administration is now well on its way to transforming it from a narrow evidentiary privilege into something that looks like a doctrine of broad government immunity.

Just have to quote some more. It’s so on the ball, this piece by Henry Lanman in Slate, the whole thing could be quoted. Here’s the penultimate paragraph:

Despite the burgeoning use of this privilege and the way it’s been used to gut entire cases, the most disturbing aspect of the Bush administration’s expansion of the state secrets privilege may well be this: More and more, it is invoked not in response to run-of-the-mill government negligence cases but in response to allegations of criminal conduct on the part of the government. These are not slip-and-fall cases. They are challenges to the administration’s broad new theories of unchecked executive power. By using the state secrets privilege to shut down whole lawsuits that would examine government actions before the cases even get under way, the administration avoids having to give a legal account of its behavior. And if this tactic persists—if the administration continues to broadly assert this privilege and courts continue to accept it—the administration will have succeeded in creating an insurmountable immunity that can be invoked against pretty much any legal claim that the “war on terror” violates the law. The standard and winning response to any plaintiff who asserted such charges would be, quite simply, that it’s a secret.

I don’t think the bush clan thought they could so easily ‘classify’ what they don’t want investigated.

big-time deadeye must be kicking his pacemaker for not using the ‘classify’ strategy two years ago when Fitz came riging into town.

The next time I get busted for ANYTHING, all I’m gonna say is “it’s classified” and the problem goes away. Parking ticket? Sorry whether that was my car is classified and I ain’t payin’. Speeding ticket? Sorry officer, my driving mission is classified so take a hike. Armed robbery? Sorry, but I need the loot for a classifies purpose and I’m off scott free. Best. Excuse. Ever.

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