The Coup is Almost Complete

washingtonpost.com
Alito Urged Wiretap Immunity
Memo Offers Look at Nominee on Privacy

By Jo Becker and Christopher Lee
Washington Post Staff Writers
Saturday, December 24, 2005; A01

Supreme Court nominee Samuel A. Alito Jr. once argued that the nation's top law enforcement official deserves blanket protection from lawsuits when acting in the name of national security, even when those actions involve the illegal wiretapping of American citizens, documents released yesterday show.

As a lawyer in the Reagan Justice Department, Alito said the attorney general must be free to take steps to protect the country from threats such as terrorism and espionage without fear of personal liability. But in a 1984 memo involving a case that dated to the Nixon administration, Alito also cautioned his superiors that the time may not be right to make that argument and urged a more incremental approach.

"I do not question that the Attorney General should have this immunity," Alito wrote. "But for tactical reasons, I would not raise the issue here."

To date, much of the debate involving Alito's nomination has centered on his views on abortion. The latest of Alito's memos to be disclosed opened a window on his thinking in the area of national security vs. privacy rights, an issue that is currently under considerable scrutiny.

The release of the memo comes as President Bush is under attack for launching a secret National Security Agency program to bypass the courts and eavesdrop on the overseas telephone calls and e-mail of U.S. citizens with suspected ties to terrorists. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) has said he will press Alito for his views on that subject when the panel opens confirmation hearings Jan. 9.

Democrats were quick to link the issues yesterday, saying Alito's memo raises questions about his commitment to protecting civil liberties by checking executive power. The type of absolute immunity that Alito discussed would have shielded attorneys general even when their actions violated constitutional rights.

"At a time when the nation is faced with revelations that the Administration has been wiretapping American citizens, we find that we have a nominee who believes that officials who order warrantless wiretaps of Americans should be immune from legal accountability," said Sen. Edward M. Kennedy (D-Mass.).

But Alito supporters noted that the memo does not defend the practice of warrantless eavesdropping, instead dealing only with the question of whether government officials who often must act quickly can be sued for damages when they err. Nor did the memo deal with the question of whether a warrant was necessary to investigate foreign threats.

"Despite Democrats' attempts to link this memo to reports of NSA activities, the two have nothing to do with each other," said White House spokesman Steve Schmidt.

The memo was among more than 700 pages released by the National Archives yesterday in response to a public records request from The Washington Post.

They portray a strategic legal thinker attuned to the sensitivities and ideological balance of the Supreme Court. Coupled with previously released memos, they paint a picture of a man who often preferred more indirect approaches over headlong charges in advancing the Reagan administration's legal agenda.

In memos released last month, for instance, Alito made it clear to Reagan administration officials that he personally believed there was no constitutional right to abortion. But he recommended against launching a "frontal assault" on Roe v. Wade , instead outlining a strategy to chip away at the landmark 1973 abortion rights case.

The 1984 wiretapping memo involved a lawsuit filed against Nixon administration attorney general John N. Mitchell, who in 1970 had ordered wiretaps of antiwar activists. The FBI suspected the activists of plotting to blow up Washington utility tunnels and kidnap Henry A. Kissinger, then President Richard M. Nixon's national security adviser. The case had been in the courts for years, and it fell to Alito to prepare a memo on whether the government should ask the Supreme Court to review an adverse lower court decision.

Part of the job of the solicitor general's office, where Alito was an assistant, is to defend the interests of the executive branch, and the argument that the president and his top aides were entitled to absolute immunity was not a new one.

The Carter administration had taken that position in wiretapping cases stemming from the Watergate scandal, but the issue had not been clearly resolved by the Supreme Court.

In the 1984 memo to his boss -- Solicitor General Rex Lee -- Alito wrote that "absolute immunity arguments are difficult to advance successfully" and so "there is a need to choose our cases in this area with particular care."

The Mitchell case had several problems, Alito said. Justice William H. Rehnquist would have to recuse himself because he served in the Nixon administration, "a handicap we can ill afford in this difficult area." Moreover, Alito said, "our chances of persuading the Court to accept an absolute immunity argument would probably be improved in a case involving a less controversial official and a less controversial era."

The government, he said, should stick to a less sweeping defense of Mitchell -- that the law was not clear at the time he authorized the wiretaps and that therefore he could not be sued because he did not act in willful disregard of the law.

As it turns out, Alito was right.

The Reagan administration pressed ahead with its argument of absolute immunity, with Alito co-writing the brief. The administration argued that in the abstract it is easy to assert that "public officials who have deliberately flouted clearly established rights should be liable." But, the brief said, that could lead "risk-adverse officials" contemplating "ruinous personal liability" to falter when action was needed to protect the country.

The Supreme Court quashed the lawsuit against Mitchell, but it rejected a blanket shield for illegal conduct.

"The label of 'national security' may cover a multitude of sins," then-Justice Byron R. White wrote for the majority in 1985. "The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity.''

The following year, Alito was asked to help bolster executive power on a different front. In a 1986, after being promoted to the Office of Legal Counsel, he sketched out ways for the president to weigh in on the meaning of a law the way Congress does when it builds a legislative history through hearings, committee reports and debate before it passes a bill.

The administration was concerned that judges were not strictly sticking to the language of statutes, instead relying on what various lawmakers had said their intent was.

While the plan probably "will not be warmly welcomed" on Capitol Hill, Alito said "it may help to curb" abuses.

The documents also show that Alito has experience preparing others for Supreme Court confirmation hearings, helping to troubleshoot Rehnquist's nomination to be chief justice in the summer of 1986.

In a memo dated July 28, one day before the start of the Senate Judiciary Committee hearing on Rehnquist, Alito provided defenses to three potential lines of questioning if Rehnquist were asked about $27,000 he had received for a book about his experiences on the high court.

Alito need not have worried. Rehnquist was confirmed without the money becoming an issue.
© 2005 The Washington Post Company

Power We Didn't Grant

By Tom Daschle
Friday, December 23, 2005; A21

In the face of mounting questions about news stories saying that President Bush approved a program to wiretap American citizens without getting warrants, the White House argues that Congress granted it authority for such surveillance in the 2001 legislation authorizing the use of force against al Qaeda. On Tuesday, Vice President Cheney said the president "was granted authority by the Congress to use all means necessary to take on the terrorists, and that's what we've done."

As Senate majority leader at the time, I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

The shock and rage we all felt in the hours after the attack were still fresh. America was reeling from the first attack on our soil since Pearl Harbor. We suspected thousands had been killed, and many who worked in the World Trade Center and the Pentagon were not yet accounted for. Even so, a strong bipartisan majority could not agree to the administration's request for an unprecedented grant of authority.

The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress -- but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language.

All Americans agree that keeping our nation safe from terrorists demands aggressive and innovative tactics. This unity was reflected in the near-unanimous support for the original resolution and the Patriot Act in those harrowing days after Sept. 11. But there are right and wrong ways to defeat terrorists, and that is a distinction this administration has never seemed to accept. Instead of employing tactics that preserve Americans' freedoms and inspire the faith and confidence of the American people, the White House seems to have chosen methods that can only breed fear and suspicion.

If the stories in the media over the past week are accurate, the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law that I helped negotiate with his counsel and that Congress approved in the days after Sept. 11. For that reason, the president should explain the specific legal justification for his authorization of these actions, Congress should fully investigate these actions and the president's justification for them, and the administration should cooperate fully with that investigation.

In the meantime, if the president believes the current legal architecture of our country is insufficient for the fight against terrorism, he should propose changes to our laws in the light of day.

That is how a great democracy operates. And that is how this great democracy will defeat terrorism.

Excuses, excuses

In trying to justify Bush's warrantless spying, his defenders are distorting the facts about Clinton and due process of the law.
By Joe Conason

Dec. 23, 2005 | Notwithstanding the haughty pretensions of this imperial president -- who never apologizes and rarely explains -- the officials, scribes and courtiers of the Bush administration are busy fashioning excuses for the illegal-surveillance scandal. Advanced by Attorney General Alberto Gonzales as well as the likes of Matt Drudge and Rush Limbaugh, these sophistries range from the absurdly illogical to the blatantly misleading.

Someday the courts may justify or rebuke what Bush has done. Someday Congress may exonerate or punish him. Someday we may find ourselves yoked by a kinglike "wartime president," or we may at last be freed of his ongoing excesses. In the meantime, however, it is worth clearing away the intellectual chaff spread so persistently by his enablers.

In his signature style, Drudge has sought to suggest that Bush has done nothing that Democratic presidents didn't do, which may reflect his own continuing obsession with Bill Clinton. The Internet gossip's headline this week blared, "Clinton Executive Order: Secret Search on Americans Without Court Order..." He went on to link to a National Review Online article that made much of a Clinton order in 1994 authorizing warrantless searches. But it is important to connect the dots, as the president would say, in Drudge's ellipsis points. The Clinton executive order permitted such searches only under certain very limited circumstances that are legal under the Foreign Intelligence Surveillance Act, the very statute that Bush has admitted ignoring.

The Center for American Progress noted Wednesday what Drudge left out and what the National Review's Byron York elided -- namely, the difference between search or surveillance operations conducted against foreigners and those conducted against American citizens. ("Some people," York later noted in chiding exaggerations on both sides of the issue, "have said that Bill Clinton signed an executive order authorizing such surveillance; he did not.")

The Foreign Intelligence Surveillance Act restrictions were designed to protect Americans, not to hobble U.S. counterintelligence aimed at foreign spies and terrorists.

That was why Clinton's order authorized the attorney general "to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year" -- but only if the attorney general "makes the certifications required" by Section 302(a)(1) of FISA. That section requires the attorney general to certify that the search or surveillance in question would not invade the property or premises of "a United States person," meaning a citizen or someone living here legally. By leaving out the same qualification, Drudge made the same incorrect implication about an order signed by Jimmy Carter in 1979. Then again, as Drudge has occasionally boasted, his reporting is 80 percent correct -- but sometimes that omitted 20 percent can make all the difference.

On Tuesday, Limbaugh, another Clinton obsessive, relied on the same false assumptions to claim that the Clinton administration had done "exactly what George W. Bush did" in authorizing warrantless surveillance. In fact, the position of the Clinton Justice Department was clear: Not only did Clinton believe that FISA properly balances civil liberties and national security, but he supported expanding its provisions in 1994 to cover physical searches as well as electronic surveillance.

Perhaps the most revealing assertions were made by Gonzales, the White House yes-man who has given cover to every trespass of legality by this administration, from the abandonment of the Geneva Conventions to the indefinite detention of citizen "combatants."

Attempting to defend the secret domestic surveillance program, the attorney general said that the White House had considered asking Congress to pass new legislation that would explicitly permit those activities. He asserted that Congress had in fact already given blanket approval for such spying with its approval of the war resolution. But he also confessed that the administration had abandoned the idea of new legislation because getting a bill through Congress "would be difficult if not impossible." In other words, Congress would refuse to pass legislation authorizing activities its members had supposedly approved after Sept. 11, 2001.

Obviously that argument makes no sense -- and the dishonesty of the Bush defenders only undermines the public confidence that would be necessary to entrust the White House with expanded powers to spy. New technologies that enable the government to sweep through gigantic amounts of computer and voice data, in search of clues to terrorist threats, may well require new legislation. Nobody wants to enable terrorists to escape timely detection. But if the president gets away with behaving like a tyrant, with constitutional checks and balances erased by fiat, then the terrorists have indeed already won.

How Far Will Bush Supporters Go?

by Peter Daou

Glenn Greenwald has a fantastic post that deals with a subject I've been thinking a lot about lately. Namely, how far will Bush supporters go in their allegiance to him? How far will they follow Bush and Cheney down the road to absolute executive power?

Greenwald writes, "Virtually no serious Bush defenders claim any longer that the Administration's warrantless eavesdropping on American citizens was authorized by FISA.

To the contrary, FISA expressly prohibited such surveillance. Thus, to defend George Bush they must literally claim that the President has the right during "wartime" to violate Congressional statutes which relate to national security."

He goes on to look at the consequences of such unchecked power and concludes with the unavoidable question: “If a theory of limitless Executive power is not what Bush defenders are advocating, then it is incumbent upon them to articulate what limitations they believe exist on Presidential power in times of undeclared war. What is it that courts or Congress can do, if anything, to serve as a check on these powers?”

Giving allowance to partisan loyalty, ideology and the natural tendency to stick up for “their guy,” one still has to wonder if there’s ANY limit to this blind support for Bush. The obvious thing to do, then, is to ask if there’s been any occasion where Bush's supporters have substantively and publicly differed with him. And the first situation that comes to mind is the Harriet Miers nomination.

But what’s scary about this signature defection by his hardcore supporters is that they excoriated him not for going too far, but for not going far enough.

So perhaps the domestic spying scandal is the proverbial straw that breaks the camel’s back?

Not by a long shot -- even though it would be logical to assume so. Setting aside the legal intricacies and the abstruse arguments being made by Bush’s legal apologists in support of his actions, two questions about this story should trouble all Americans:

1. If the current law wasn’t adequate to protect us, why not try to change it rather than circumvent it?
2. Why go around claiming you were using FISA when you weren’t? (Thursday’s Hardball had a series of clips showing Bush flatly stating that FISA was being strictly adhered to when it obviously wasn't.)

Circumventing the law on a matter of national security (for whatever allegedly noble purpose) and lying about it are grave matters. But don’t hold your breath waiting for mass defections; the vast majority of Bush’s blog supporters, rightwing pundits, and Republican surrogates are out there standing up for Bush, attacking those who question the constitutionality of his actions.

As this story takes its expected course, it appears there’s a simple - albeit jarring - answer to the question of how far Bush’s supporters will go: they’ll go as far as he wants them to. And we’re beginning to see how far that is.

Republican Holiday Gift

The New York Times
December 22, 2005
Students to Bear Big Burden Under the Final Budget Bill
By ROBERT PEAR
and MICHAEL JANOFSKY

WASHINGTON, Dec. 21 - Nearly one-third of all the savings in the final budget bill comes from student aid, the Congressional Budget Office said Wednesday.

Under the bill, college students would pay higher interest rates on loans. Many banks will receive lower subsidies. And the Education Department will work with the Internal Revenue Service to ferret out students and parents who underreport incomes on financial aid applications. The budget bill is estimated to save $39.7 billion over the next five years. Student aid accounts for $12.7 billion of the savings, or 32 percent.

Not since 1997 has Congress made such an ambitious effort to slow the growth of benefit programs. The legislation includes these changes:

¶States would have sweeping new authority to impose premiums and co-payments on millions of low-income people covered by Medicaid. States can also scale back benefits for many recipients.

¶For the elderly, it would be more difficult to qualify for Medicaid coverage for nursing home care if they transfer assets to their children or other relatives for less than fair market value.

¶Medicare would freeze payments for home health services and reduce payments for medical imaging.

¶Welfare recipients would be subject to stricter work requirements. States would be subject to new financial penalties unless they put more people to work or further reduce the number of families receiving assistance.

¶Aid that helps states collect child support from absent parents would be reduced.

The Bush administration worked closely with Republicans in Congress on provisions that affect student aid. But Education Secretary Margaret Spellings declined to comment until the bill cleared a final hurdle on Capitol Hill.

Republican negotiators said virtually all the cuts in student aid would be borne by banks and other lenders, an assertion sharply disputed by Democrats and college administrators, who said that two-thirds of the savings would be at the expense of students and their families.

Even as it makes those cuts, Congress is creating a new program for students from low-income families who are eligible for Pell grants. The amount of aid will not be based on financial need. To qualify, students would have to be United States citizens, have completed "a rigorous secondary school program of study" and be taking courses full time at a "degree-granting institution of higher education."

The student would have to maintain "a cumulative grade point average of at least 3.0." Juniors and seniors will be eligible only if they have declared a major in the physical or life sciences, computer science, mathematics, technology, engineering or a foreign language deemed critical to national security.

College and university groups, as well as most Democrats, opposed the overall bill.

"This is the biggest cut in the history of the federal student loan program," said David Ward, president of the American Council on Education, an umbrella group for public and private colleges and universities.

A lobbyist at the council, Becky H. Timmons, said, "Students will be paying higher interest rates than they are currently paying."

The rate would be fixed at 6.8 percent for students and 8.5 percent for parents. The current rates, which vary with market conditions, are several percentage points below those levels.

The new aid for freshmen and sophomores is known as academic competitiveness grants. Freshmen would be eligible for $750 grants, and sophomores for $1,300 grants. Juniors and seniors would be eligible for $4,000 a year in what Congress calls Smart grants. The name is an acronym for "science and mathematics access to retain talent."

The Senate majority leader, Bill Frist, Republican of Tennessee, said the new support for math and science education would increase America's ability to compete in a global economy.

"China and India are generating scientists and engineers at a furious pace while America lags dangerously behind," Mr. Frist said.

The bill would not change the maximum Pell grant, which has been $4,050 for several years. President Bush had proposed a $100 increase. The bill would increase the maximum amount of subsidized loans, to $3,500 and $4,500 for first- and second-year students, from $2,625 and $3,500.

Senator Edward M. Kennedy, Democrat of Massachusetts, said the math and science program would abandon the Pell grant principle that the neediest students should receive the most help.

"Under this proposal," Mr. Kennedy said, "a single mother who can attend college only part time because she has to work 40 hours a week to put food on the table will not be eligible for a penny in new grant aid."

Republicans said the budget bill squeezed far more savings from banks than from students. Representative John A. Boehner, the Ohio Republican who is chairman of the Committee on Education and the Work Force, said the bill would increase benefits for some students while saving money for taxpayers.

"Vast increases in federal student aid" have coincided with a decade of tuition increases, Mr. Boehner said.

He suggested that federal investments in higher education had contributed to "the college cost explosion that is squeezing the budgets of low- and middle-income families."

Representative George Miller, Democrat of California, said the Republican proposals would make it even harder for many families to pay for college. About 70 percent of the savings in student aid "come off the backs of students and their families," Mr. Miller said.

* Copyright 2005The New York Times Company

And You Say You’re not a Union Man

by Scott Mehno

“It needs to end and it needs to end right now,” so crowed Mayor Multi-Billionaire-Bloomberg, on only the second day of the New York City transit strike, echoing the feeble finger-wagging I usually give my four year old son (somebody should tell Bloomy it usually takes 3 warnings for the more obstinate youngins’ to even lift their head up) after my first-born has made the umpteenth imprint of his butt out of the ump-umpteenth new can of play dough I just bought for him.

Bloomberg, of course, is scrambling to fit into a slightly tougher role here, that of the Papa-Guliani variety, trying to win the hearts and minds of 7 million New Yorkers who have had to hitch a ride (or walk) the last couple of days, an increasingly spoiled, whiny lot by the way, who have become a little too accustomed to their professional victim status after 9/11 (one moron crying on the idiotic MSNBC ‘How Has The Strike Affected You?’ blogged about how she is going to miss all her college finals now, boo hoo.) Are you kidding me? Five days before Christmas and the city’s political hacks hand you a ‘Get To F***k Off Free Card like this one, and you’re crying ‘cause you’re missing school?

The good news, Huffpost bloggers, is you can stop the 24/7 What-the-f**k’s wrong-with-America search right now – the crybaby reaction to this strike clues us in to precisely what our problem is - and particularly New York City. It’s gone P***y! I mean, 20 years ago, what self respecting student or office-worker-schnozz wouldn’t be rooting for even a hint of chaos like this, handing you a once-in-a lifetime-excuse to miss work, miss school, and punch-out for the holidays early – an excuse so righteous, by the way, you can even use it to shit-can the dreaded holiday trip home – and languish, quite anonymously, until the sure-to-come court-induced-back-to-work order crashes this glorious, mutual cluster F**k, so cynically manipulated by the media (complete with Bloomberg’s messianic walk across the Brooklyn Bridge, media dolts falling over themselves with praise about how the fake subway-rider is now fake-walking.)

But hey, it doesn’t even matter who is right or wrong – the headline is too easy: WE’RE INCONVENIENCED, GODAMMIT. And just in case you thought the New York City Policemen and Firemen weren’t being honored enough (notice how the media has to somehow manage to stroke them in every New York crisis, as if to ward off the cryptic possibility that they may walk off the job themselves at any time) Former Mayor Ed Koch was laying pipe to any broadcast outlet who’d listen about what a great job MTA Shill #1 and Shill #2 we’re doing for us, Mayor Multi-Billionaire and Governor Pataki (not even 4 hours into the strike) as they took us by-the-hand, on our hands and knees if necessary, leading the noble lot that we are to 7 million jobs we f****ng hate in the first place!

And you say you’re not a union man.

Bush's impeachable offense

Yes, the president committed a federal crime by wiretapping Americans, say constitutional scholars, former intelligence officers and politicians. What's missing is the political will to impeach him.
By Michelle Goldberg

Dec. 22, 2005 | On Tuesday, Dec. 20, Washington Post polling editor Richard Morin participated in an online chat with readers. The liberal blog MyDD urged its users to take part, and evidently they did. In previous days, legal experts had declared that Bush had committed a federal crime by authorizing the surveillance of American citizens without a court order, and Morin was grilled about the issue of impeachment.

First, someone from Naperville, Ill., asked Morin why the Post hasn't polled on public support for impeaching Bush. "This question makes me mad," Morin replied. Someone else repeated the question and Morin typed, "Getting madder." It came up again, and he wrote, "Madder still."

Finally, a fourth person asked it, and he answered: "[W]e do not ask about impeachment because it is not a serious option or a topic of considered discussion -- witness the fact that no member of congressional Democratic leadership or any of the serious Democratic presidential candidates in '08 are calling for Bush's impeachment. When it is or they are, we will ask about it in our polls."

Morin was wrong. It may be exceedingly unlikely that President Bush will be impeached, but in the past few days, the I-word has become a topic of considered discussion among constitutional scholars, former intelligence officers and even a few politicians.

"If you listen carefully, you can hear the word 'impeachment,'" curmudgeonly commentator Jack Cafferty said on CNN. "Two congressional Democrats are using it. And they're not the only ones."

Indeed, speaking on the Diane Rehm show on public radio, Norman Ornstein, a scholar at the conservative American Enterprise Institute, said, "I think if we're going to be intellectually honest here, this really is the kind of thing that Alexander Hamilton was referring to when impeachment was discussed."

On Dec. 17, after the story of Bush's domestic spying broke in the New York Times, the president conceded that he had ordered the National Security Agency to intercept Americans' communications without seeking judicial approval. Unrepentant, the White House insisted that Bush had been granted such authority by the post-9/11 congressional resolution authorizing "all necessary force" in the fight against terrorism, and that the president would continue to order warrantless searches.

The next day, during a public discussion with Sen. Barbara Boxer, D-Calif., former Nixon White House counsel John Dean called Bush "the first president to admit to an impeachable offense." Boxer took Dean seriously enough to consult four presidential scholars about impeachment.

"This startling assertion by Mr. Dean is especially poignant because he experienced firsthand the executive abuse of power and a presidential scandal arising from the surveillance of American citizens," she wrote to them. "Given your constitutional expertise, particularly in the area of presidential impeachment, I am writing to ask for your comments and thoughts on Mr. Dean's statement."

Boxer has not made public any of the responses yet. But other political scholars have weighed in. "The American public has to understand that a crime has been committed, a serious crime," Chris Pyle, a professor of politics at Mount Holyoke College and an expert on government surveillance of civilians, tells Salon. "Looking at this controversy objectively, you inevitably end up with a question of impeachment," says Jonathan Turley, a professor at the George Washington University School of Law.

On Dec. 18, Rep. John Conyers, D-Mich., the highest-ranking Democrat on the House Judiciary Committee, released a 250-page report detailing Bush's misconduct and, on his Web site, called for the creation of a select committee to investigate "those offenses which appear to rise to the level of impeachment." Rep. John Lewis, D-Ga., said in a radio interview that he would support trying Bush. "If there is a move to impeach the president, I will sign that bill of impeachment," he said.

Assessing the controversy, Newsweek columnist Jonathan Alter wrote on Dec. 19, "This will all play out eventually in congressional committees and in the United States Supreme Court. If the Democrats regain control of Congress, there may even be articles of impeachment introduced. Similar abuse of power was part of the impeachment charge brought against Richard Nixon in 1974."

It was bracing to see impeachment mentioned as a possibility in the mainstream media. But experts say it's not unreasonable. According to Turley, there's little question Bush committed a federal crime by violating the 1978 Foreign Intelligence Surveillance Act.

The act authorizes a secret court to issue warrants to eavesdrop on potential suspects, or anyone even remotely connected to them, inside the United States. The bar to obtain a FISA warrant is low; more than 15,000 have been granted, with only four requests denied since 1979. In emergency situations, the government can even apply for FISA warrants retroactively. Nevertheless, Bush chose not to comply with FISA's minimal requirements.

"The fact is, the federal law is perfectly clear," Turley says. "At the heart of this operation was a federal crime. The president has already conceded that he personally ordered that crime and renewed that order at least 30 times. This would clearly satisfy the standard of high crimes and misdemeanors for the purpose of an impeachment."

Turley is no Democratic partisan; he testified to Congress in favor of Bill Clinton's impeachment. "Many of my Republican friends joined in that hearing and insisted that this was a matter of defending the rule of law, and had nothing to do with political antagonism," he says. "I'm surprised that many of those same voices are silent. The crime in this case was a knowing and premeditated act. This operation violated not just the federal statute but the United States Constitution. For Republicans to suggest that this is not a legitimate question of federal crimes makes a mockery of their position during the Clinton period. For Republicans, this is the ultimate test of principle."

Of course, that may be exactly the problem. While noted experts -- including a few Republicans -- are saying Bush should be impeached, few think he will be. It's not clear that the political will exists to hold the president to account. "We have finally reached the constitutional Rubicon," Turley says. "If Congress cannot stand firm against the open violation of federal law by the president, then we have truly become an autocracy."

Similar fears are voiced by Bruce Fein, a former associate deputy attorney general under President Ronald Reagan. Fein is very much a member of the right. He once published a column arguing that "President George W. Bush should pack the United States Supreme Court with philosophical clones of Justices Antonin Scalia and Clarence Thomas and defeated nominee Robert H. Bork."

Suddenly, though, Fein is talking about Bush as a threat to America. "President Bush presents a clear and present danger to the rule of law," he wrote in the right-wing Washington Times on Dec. 20. "He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms."

What alarms Fein is not only that Bush has broken laws but also that he has repeatedly shown contempt for the separation of powers. Fein wants to see congressional hearings that would explore whether Bush accepts any constitutional limitation on his own authority.

"The most important thing to me, in terms of thinking about the issue of impeachment, is to recognize that the Constitution does place a value on continuity," Fein says. "We don't want to have a situation where you make a single error, and you're exposed to an impeachment proceeding."

Fein says Congress should probe Bush on whether he plans to keep "skating the edge" of federal law by trying to concentrate power in the executive branch. "That's the key. It's that probing that's essential to knowing whether we're dealing with somebody who's really a dangerous guy. If he maintains this disregard or contempt for the coordinate branches of government, it's that conception of an omnipotent presidency that makes the occupant a dangerous person. We just can't sacrifice our liberties for ourselves and our posterity by permitting someone who thinks the state is him, and nobody else, to continue in office."

In fact, though, that may be exactly what America is permitting Bush to do. "Politically, I see no possibility that impeachment will succeed," says Jonathan Entin, a professor of political science and law at Case Western Reserve University.

"The Democrats are a minority in both houses of Congress," Entin says. "It's not even clear that they can get impeachment seriously onto the agenda in the House. Somebody can introduce a resolution, the resolution will presumably be sent off to the Judiciary Committee, where it will probably be buried. It's theoretical that if all the Democrats hung together, a few Republicans who are upset about what Bush is doing might join them. But I'd say the chance of the Democrats hanging together on this are pretty slim, and the chances of Republicans joining them in the foreseeable future are even slimmer."

"The only question here is the political one," says Pyle of Mount Holyoke College. A former military intelligence officer, Pyle blew the whistle on the U.S. Army's domestic spying program during the Vietnam War. He believes that Bush has committed an impeachable offense -- and that right now there's no prospect he will be impeached. "This president has admitted committing the crime. He just claims he's above the law," Pyle says. "So the issue is: Is the president above the law?"

If so, Pyle continues, "then we need not argue over the PATRIOT Act. We do not need the PATRIOT Act, because the president can do anything he wants in time of war. He can ignore all the criminal laws of the United States, including the laws against indefinite detention and against torture. I don't think we want to go down that road."

But aren't we already down that road? "We may be," Pyle says. "Maybe it's time to call a halt."

Iraq Vote Moves Baghdad Closer to Tehran

robertscheer.com

Secular politicians smashed by theocrats

December 21, 2005 – For the Bush White House, the good news from Iraq just never stops. But the joy that President Bush has expressed over the country's latest election, though more restrained than his infamous "Mission Accomplished" speech, will similarly come back to haunt him.

Soon after Bush spoke of the Iraqi election as "a landmark day in the history of liberty," early returns representing 90 percent of the ballots cast in the Iraq election established that the clear winners were Shiite and Sunni religious parties not the least bit interested in Western-style democracy or individual freedom -- including such extremists as Muqtada al-Sadr, whose fanatical followers have fought pitched battles with U.S. troops.

The silver lining, of course, is that the election did see broad participation, if not particularly clean execution. And because all of the leading parties say they want the United States to leave on a clear and public time line, this should provide adequate cover for a staged but complete withdrawal from a sovereign country that we had no right to invade in the first place.

What we will leave behind, after hundreds of billions of dollars and tens of thousands of lost lives, will be a long ways from the neoconservative fantasy of creating a compliant democracy in the heart of the Middle East. It is absurd for Bush to assert that the election "means that America has an ally of growing strength in the fight against terror," ignoring how he has "lost" Iraq to the influence and model of "Axis of Evil" Iran.

Tehran's rogue regime, which has bedeviled every U.S. president since Jimmy Carter, now looms larger than ever over the region and most definitely over its oil. "Iran wins big in Iraq's election," reads an Asia Times headline, speaking a truth that American policy makers and much of the media is bent on ignoring: "The Shiite religious coalition, the United Iraqi Alliance (UIA), not only held together, but also can be expected to dominate the new 275-member National Assembly for the next four years," the paper predicts based on the returns to date. "Former premier Ayad Allawi's prospects of leading the new government seem virtually nil. And Ahmed Chalabi's Iraqi National Accord suffered a shattering defeat."

Allawi and Chalabi are the Iraqi exiles and U.S. intelligence "assets" who played such a huge role in getting the United States into this war. Chalabi, in particular, will go down in history as one of the great con artists of all time, managing to feed phony intelligence to the White House, the New York Times and countless other power players who found his lies convenient for one reason or another. Now, despite -- or, more likely, because of -- their long stints on the U.S. payroll, both of these wannabe George Washingtons have been overwhelmingly rejected by their countrymen.

Chalabi, long the darling of the Pentagon, seems headed to obtaining less than 1 percent of the vote nationwide and will fail to win his own seat. Allawi's slate, favored more by the CIA, will end up in the low teens.

As much as one should despise the role played by those two men in getting us into this mess, their abject failure is not a good thing for they carried the banner of a more modern and secular Iraq, which is essential to peace and human rights progress. But the Iraqi people will have to come to that truth on their own and not as a result of foreign intervention that only fuels the most irrational political and religious forces.

Unfortunately, it is hardly an advertisement for our democratic way of life that the American people were so easily deceived as to the reasons for this war. Or that our president resists the condemnation of torture, renders captured prisoners to be interrogated in the savage prisons of Uzbekistan and Syria, and claims an unrestrained right to spy on U.S. citizens.

Nor does it help that this president is so publicly bent on intruding government-imposed religious values into American civil life, while urging secular tolerance upon the Islamic world. Or that he remains so blind to the reality of life in that world that he still does not grasp that Saddam Hussein and Osama bin Laden were on opposite sides of the enormous struggle over the primacy of religion in the Arab world.

Iraq, for all of its massive deficiencies, was not a center of religious fanaticism before the U.S. invasion, and the Islamic fanatics that are the president's sworn enemy in the so-called "war on terror" did not have a foothold in the country. Now, primitive religious fundamentalism forms the dominant political culture in Iraq and the best outcome for U.S. policy is the hope that Shiite and Sunni fanatics can check each other long enough for the United States to beat a credible retreat and call it a victory, albeit a pyrrhic one.

E-mail Robert Scheer at rscheer@truthdig.com
Copyright 2005 Robert Scheer

Spy Court Judge Quits In Protest

washingtonpost.com

Jurist Concerned Bush Order Tainted Work of Secret Panel

By Carol D. Leonnig and Dafna Linzer
Washington Post Staff Writers
Wednesday, December 21, 2005; A01

A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush's secret authorization of a domestic spying program, according to two sources.

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.

Robertson, who was appointed to the federal bench in Washington by President Bill Clinton in 1994 and was later selected by then-Chief Justice William H. Rehnquist to serve on the FISA court, declined to comment when reached at his office late yesterday.

Word of Robertson's resignation came as two Senate Republicans joined the call for congressional investigations into the National Security Agency's warrantless interception of telephone calls and e-mails to overseas locations by U.S. citizens suspected of links to terrorist groups. They questioned the legality of the operation and the extent to which the White House kept Congress informed.

Sens. Chuck Hagel (Neb.) and Olympia J. Snowe (Maine) echoed concerns raised by Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, who has promised hearings in the new year.

Hagel and Snowe joined Democrats Dianne Feinstein (Calif.), Carl M. Levin (Mich.) and Ron Wyden (Ore.) in calling for a joint investigation by the Senate judiciary and intelligence panels into the classified program.

The hearings would occur at the start of a midterm election year during which the prosecution of the Iraq war could figure prominently in House and Senate races.

Not all Republicans agreed with the need for hearings and backed White House assertions that the program is a vital tool in the war against al Qaeda.

"I am personally comfortable with everything I know about it," Acting House Majority Leader Roy Blunt (R-Mo.) said in a phone interview.

At the White House, spokesman Scott McClellan was asked to explain why Bush last year said, "Any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so." McClellan said the quote referred only to the USA Patriot Act.

Revelation of the program last week by the New York Times also spurred considerable debate among federal judges, including some who serve on the secret FISA court. For more than a quarter-century, that court had been seen as the only body that could legally authorize secret surveillance of espionage and terrorism suspects, and only when the Justice Department could show probable cause that its targets were foreign governments or their agents.

Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.

"They just don't know if the product of wiretaps were used for FISA warrants -- to kind of cleanse the information," said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. "What I've heard some of the judges say is they feel they've participated in a Potemkin court."

Robertson is considered a liberal judge who has often ruled against the Bush administration's assertions of broad powers in the terrorism fight, most notably in Hamdan v. Rumsfeld . Robertson held in that case that the Pentagon's military commissions for prosecuting terrorism suspects at Guantanamo Bay, Cuba, were illegal and stacked against the detainees.

Some FISA judges said they were saddened by the news of Robertson's resignation and want to hear more about the president's program.

"I guess that's a decision he's made and I respect him," said Judge George P. Kazen, another FISA judge. "But it's just too quick for me to say I've got it all figured out."

Bush said Monday that the White House briefed Congress more than a dozen times. But those briefings were conducted with only a handful of lawmakers who were sworn to secrecy and prevented from discussing the matter with anyone or from seeking outside legal opinions.

Sen. John D. Rockefeller IV (D-W.Va.) revealed Monday that he had written to Vice President Cheney the day he was first briefed on the program in July 2003, raising serious concerns about the surveillance effort. House Minority Leader Nancy Pelosi (D-Calif.) said she also expressed concerns in a letter to Cheney, which she did not make public.

The chairman of the Senate Select Committee on Intelligence, Pat Roberts (R-Kan.), issued a public rebuke of Rockefeller for making his letter public.

In response to a question about the letter, Sen. John McCain (R-Ariz.) suggested that Rockefeller should have done more if he was seriously concerned. "If I thought someone was breaking the law, I don't care if it was classified or unclassified, I would stand up and say 'the law's being broken here.' "

But Rockefeller said the secrecy surrounding the briefings left him with no other choice. "I made my concerns known to the vice president and to others who were briefed," Rockefeller said. "The White House never addressed my concerns."

Staff writers Jonathan Weisman and Charles Babington and researcher Julie Tate contributed to this report.

© 2005 The Washington Post Company

Judge Rules Against Pa. Biology Curriculum By

By MARTHA RAFFAELE

In one of the biggest courtroom clashes between faith and evolution since the 1925 Scopes Monkey Trial, a federal judge barred a Pennsylvania public school district Tuesday from teaching "intelligent design" in biology class, saying the concept is creationism in disguise.

U.S. District Judge John E. Jones delivered a stinging attack on the Dover Area School Board, saying its first-in-the-nation decision in October 2004 to insert intelligent design into the science curriculum violates the constitutional separation of church and state.

The ruling was a major setback to the intelligent design movement, which is also waging battles in Georgia and Kansas. Intelligent design holds that living organisms are so complex that they must have been created by some kind of higher force.

Jones decried the "breathtaking inanity" of the Dover policy and accused several board members of lying to conceal their true motive, which he said was to promote religion.

A six-week trial over the issue yielded "overwhelming evidence" establishing that intelligent design "is a religious view, a mere re-labeling of creationism, and not a scientific theory," said Jones, a Republican and a churchgoer appointed to the federal bench three years ago.

The school system said it will probably not appeal the ruling, because the members who backed intelligent design were ousted in November's elections and replaced with a new slate opposed to the policy.

During the trial, the board argued that it was trying improve science education by exposing students to alternatives to Charles Darwin's theory of evolution and natural selection.

The policy required students to hear a statement about intelligent design before ninth-grade lessons on evolution. The statement said Darwin's theory is "not a fact" and has inexplicable "gaps." It referred students to an intelligent-design textbook, "Of Pandas and People."

But the judge said: "We find that the secular purposes claimed by the board amount to a pretext for the board's real purpose, which was to promote religion in the public school classroom."

In 1987, the U.S. Supreme Court ruled that states cannot require public schools to balance evolution lessons by teaching creationism.

Eric Rothschild, an attorney for the families who challenged the policy, called the ruling "a real vindication for the parents who had the courage to stand up and say there was something wrong in their school district."

Richard Thompson, president and chief counsel of the Thomas More Law Center in Ann Arbor, Mich., which represented the school district and describes its mission as defending the religious freedom of Christians, said: "What this really looks like is an ad hominem attack on scientists who happen to believe in God."

It was the latest chapter in a debate over the teaching of evolution dating back to the Scopes trial, in which Tennessee biology teacher John T. Scopes was fined $100 for violating a state law against teaching evolution.

Earlier this month, a federal appeals court in Georgia heard arguments over whether a suburban Atlanta school district had the right to put stickers on biology textbooks describing evolution as a theory, not fact. A federal judge last January ordered the stickers removed.

In November, state education officials in Kansas adopted new classroom science standards that call the theory of evolution into question.

President Bush also weighed in on the issue of intelligent design recently, saying schools should present the concept when teaching about the origins of life.

In his ruling, Jones said that while intelligent design, or ID, arguments "may be true, a proposition on which the court takes no position, ID is not science." Among other things, he said intelligent design "violates the centuries-old ground rules of science by invoking and permitting supernatural causation"; it relies on "flawed and illogical" arguments; and its attacks on evolution "have been refuted by the scientific community."

"The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources," he wrote.

The judge also said: "It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy."

Former school board member William Buckingham, who advanced the policy, said from his new home in Mt. Airy, N.C., that he still feels the board did the right thing.

"I'm still waiting for a judge or anyone to show me anywhere in the Constitution where there's a separation of church and state," he said. "We didn't lose; we were robbed."

The controversy divided Dover and surrounding Dover Township, a rural area of nearly 20,000 residents about 20 miles south of Harrisburg. It galvanized voters to oust eight school board members who supported the policy in the Nov. 8 school board election. The ninth board member was not up for re-election.

The new school board president, Bernadette Reinking, said the board intends to remove intelligent design from the science curriculum and place it in an elective social studies class. "As far as I can tell you, there is no intent to appeal," she said.

Even Right Wingers Want Him Impeached For Spying on Americans

(from thinkprogress.org)

Conservative Scholars Argue Bush’s Wiretapping Is An Impeachable Offense

Conservative scholars Bruce Fein and Norm Ornstein argued yesterday on The Diane Rehm show that, should Bush remain defiant in defending his constitutionally-abusive wire-tapping of Americans (as he has indicated he will), Congress should consider impeaching him.

QUESTION: Is spying on the American people as impeachable an offense as lying about having sex with an intern?

BRUCE FEIN, constitutional scholar and former deputy attorney general in the Reagan Administration: I think the answer requires at least in part considering what the occupant of the presidency says in the aftermath of wrongdoing or rectification. On its face, if President Bush is totally unapologetic and says I continue to maintain that as a war-time President I can do anything I want – I don’t need to consult any other branches – that is an impeachable offense. It’s more dangerous than Clinton’s lying under oath because it jeopardizes our democratic dispensation and civil liberties for the ages. It would set a precedent that … would lie around like a loaded gun, able to be used indefinitely for any future occupant.

NORM ORNSTEIN, AEI scholar: I think if we’re going to be intellectually honest here, this really is the kind of thing that Alexander Hamilton was referring to when impeachment was discussed.

(Listen to The Diane Rehm show here. The segment above begins at 33:40)

Present at the Disintegration

By KANAN MAKIYA (NYT)
Published: December 11, 2005

WASHINGTON and Baghdad will be tempted, with the adoption of a new Constitution and the election on Thursday for a four-year government, to declare victory in Iraq. In one sense, they are right to do so. The emerging Iraqi polity undoubtedly represents a radical break not only with the country's past but also with the whole Arab state system established by Britain and France after the collapse of the Ottoman Empire.

But in the larger sense, such optimism is misguided, for none of the problems associated with Iraq's monumental change have been sorted out. Worse, profound tensions and contradictions have been enshrined in the Constitution of the new Iraq, and they threaten the very existence of the state.

How did we get here? Much has been said about American failures in Iraq. And rightly so. But, as I've seen as a participant in political discussions both before and after the war, we Iraqis have also failed to lay the ground for a new order. For the new political elite cast into power by the elections last January has been unable even to begin to create a stable and strong Iraqi state to replace the one overthrown in April 2003. The increasing daily casualty rate for Iraqis, from 26 in early 2004 to an average of 64 in this fall, is only the most glaring sign that something has gone terribly wrong, and not for lack of any American effort to turn the situation around.

Unfortunately, we cannot expect the situation to change following Thursday's election. There is little chance that the winner will command the authority inside Parliament to reverse the decline, for a simple reason: the Constitution.

All signs suggest that this Constitution, if it is not radically amended, will further weaken the already failing central Iraqi state. In spite of all the rhetoric in that document about the unity of the ''homeland of the apostles and prophets'' and the ''values and ideals of the heavenly messages and findings of science'' that have played a role in ''preserving for Iraq its free union,'' it is disunity, diminished sovereignty and years of future discord that lie in store for Iraq if the Constitution is not overhauled.

ANY government that emerges from the coming elections will be fatally undermined in at least three ways.

First, the Constitution establishes a supremely powerful Parliament, which can ride roughshod over the executive. While that Parliament, as it is designed in the Constitution, looks like a democratic institution, it doesn't work like one. Rather, it is an artificially constructed collection of ethnic and sectarian voting blocs. If the experience of the interim government is any guide, the few people who control those blocs are the ones who will wield real power, and they will do so largely through handpicked committees and backroom wheeling and dealing. Because this cabal of powerbrokers also chooses the president and the prime minister and can dismiss them with a simple majority, there will be no check on the tyranny of majorities operating under the aegis of the legislature.

Second, executive power is divided between the president and the council of ministers, guaranteeing that major decisions will be met with the same tension and paralysis that have plagued the present government. Both the president and the prime minister (it is assumed, though not explicitly stated, that these two posts will be apportioned out to a Kurd and a Shiite Arab, as they are at present) can separately present bills to Parliament -- a sure recipe for conflict. And both the president and the prime minister can be fired after a no-confidence motion endorsed by a parliamentary majority. At a time of civil war and pervasive violence, in other words, no one person or institution can be said to be in charge of the executive branch of the federal government.

Third, the Constitution encourages the transformation of governorates and local administrations into powerful, nearly sovereign regions that, with the exception of Kurdistan, have no underlying basis for unity. And while the articles dealing with the functioning of the federal government are poorly worded and intended to dissipate executive power, the 10 articles of Section 5, on the powers and manner of formation of new regions, are a model of clarity and have been drafted with the sole purpose of encouraging new regions to be created at the expense of the federal union.

This guarantees that the more Iraqi provinces opt for regional status, and get it, the more the federal state will shrivel up and die. Moreover, with the exception of those who reside in provinces without oil (or in Baghdad, which cannot join a region), it is in the interest of every populist demagogue to press for regional status, because it is at that level that the lawmaking that truly affects day-to-day life will take place.

The powers of the new regions will be enormous. Not even the Iraqi Army can travel through one without the permission of the regional Parliament. And should there be any doubt about where the whip hand will lie on any issue not explicitly addressed in the Constitution, Article 122 states: ''Articles of the Constitution may not be amended if such amendment takes away from the power of the regions ... except by the consent of the legislative authority of the concerned region and the approval of the majority of its citizens.''

An Iraqi wit known only as Shalash al-Iraqi has lampooned this devolution of power in an imaginary constitution, called ''The Federalism of the City of Thawra and its Environs,'' posted on the Internet. Its preamble reads:

Congruent with the wave of federalisms that is sweeping Iraq, the City of Thawra and its surrounding neighborhoods have decided to constitute themselves as a federal region. For this purpose a Constituent Assembly of the representatives of the most important and influential tribes in the City has been established [and it] has noted that the City of Thawra [is well suited to become a region because it] floats on a lake of oil, and possesses a huge labor force along with an independent army and police force In addition the city is bounded by a canal, which is its water link to the cities of the adjoining sisterly Republic of Iraq

''We, people of the valley east of the canal, have of our own volition and free will decided to separate from the people of Baghdad and all the other irritating governorates like Ramadi, Diwaniya, Tikrit, Darbandikhan, Samawa and all the rest The adoption of this, our constitution, will free us from all the headaches and problems of Iraq.''

There is nothing wrong with having strong regions within a federal union. Unfortunately the new Iraqi Constitution fails to inject the glue that would hold such a union together: the federal government. It sets up a regional system with big short-term winners (Shiite Arabs and Kurds) and big short-term losers (Sunni Arabs). It even allocates extra oil and gas revenues to the regions that generate them, on the implicit assumption that because of the political inequities of the past, the state owes the Sunnis of the resource-poor western provinces less than it does the Shiites and Kurds. But these provinces are not significantly better off than other parts of Iraq.

Iraq's Sunni Arabs voted solidly against the Constitution not because they are Saddam Hussein loyalists, nor because they hate the Kurds and Shiites (as some of the insurgents do); they voted against it because by doing away with the central state, which they had championed during the previous 80 years, and penalizing them for living in regions without oil, the Constitution became a punitive document -- one that began to seem as if it was written to punish them for the sins of the Baath.

What is wrong with pursuing the Constitution to its logical conclusion: the breakup of Iraq? Nothing, if that breakup is consensual and does not entail an escalation in the violence tearing the country apart. But such is not the case. The debate in Parliament over the Constitution was extremely polarized and artificially cut short by the majority. Moreover, if a mere 83,283 people in the province of Nineveh had voted no instead of yes, the draft constitution would have been defeated.

Sunni opposition to the new order will continue. Crushing it by force, as some Shiite hotheads in the Parliament's majority bloc are calling for, will be an extremely bloody business. Even if the long-term outcome of an all-out Iraqi civil war is not in doubt, the body count and destruction would make Lebanon's war look like a picnic. No moral person can condone the parliamentary majority that makes this happen.

The 2003 Iraq war has indeed brought about an irreversible transformation of politics and society in Iraq. But this transformation has not consolidated power, as the great revolutions of the past have tended to do (in France, Russia and even Iran), nor is it distributing power on an agreed upon and equitable basis, as happened after the American Revolution and as Iraqi liberal democrats like myself had hoped would happen after the fall of Saddam Hussein. Rather, it is dissipating it. And that is a terrifying prospect for a population whose primary legacy from the Saddam Hussein era is a profound mistrust of government in all its forms.

By ceding and dismissing centralized power, Iraqis may end by ceding all their power. Iran in the short run, and the Arab world in the long run, will fill the vacuum with proxies, turning the dream of a democratic and reborn Iraq into a dystopia of warring militias and rampant hopelessness.

The reaction against tyranny in Iraq was always going to take the form of a new kind of state in the Middle East, one that in the minds of those who struggled against the regime of Saddam Hussein had to be profoundly decentralized. And federalism did not have to entail the dissipation of power. As it was first envisioned, a federal Iraq promised to safeguard against despotism while furnishing a framework both strong and flexible enough to reconcile the competing demands of its citizens.

Federalism first entered the lexicon of the Iraqi opposition in 1992, when the newly created Kurdish Parliament voted in favor of it as a way of governing the relation of Kurdistan to the rest of the country. That vote was ratified a few months later by a conference of the Iraqi opposition in Salahuldin, in northern Iraq.

Remarkably, the idea of federalism survived the bitter infighting among Iraqi exiles in months before the 2003 war, becoming one of the few common denominators in the discourse of the opposition about the future of Iraq. The fact that there was no literature in Arabic on federalism to speak of, and that Iraqi parties and organizations did not know or agree upon what federalism meant, and that Iraqi politicians did not bother themselves with thinking about what it might mean, did not deter individuals, parties and organizations from continuing to advocate it.

I was one of the idea's most ardent Arab advocates. In Salahuldin, I delivered the keynote speech on the subject, not only endorsing the Kurdish Parliament's decision, but presenting federalism as a general solution to the problems of the Iraqi state. A federalism based on Iraq's existing 18 governorates broke the rotten mold of Iraqi and Arab politics, I argued. No Iraqi political organization could afford not to be for it, especially not one that called itself democratic. Without a system of government in which real power devolved away from Baghdad, the autonomous, predominantly Kurdish north must sooner or later opt for separation. And how could any Iraqi expect otherwise, after all the terrible things that had been done to the Kurds in the name of Arabism?

Some Arabs argued that one must concede federalism in the interest of getting rid of Saddam Hussein and because the Kurds are in a position to force it upon us. And we must accept federalism, some Kurds said, not because we really want it, but because the regional situation does not allow us to secede. But utilitarian calculation did not lie behind the democratic argument.

Federalism in Iraq would both separate and divide powers. Painstakingly negotiated arrangements would distinguish the powers of the parts from those of the center, taking care to leave important functions in the hands of the federal government.

We thought it wise to define regions territorially, according to the relative distribution of the population, and to include in the constitution the claim that the country's resources (in particular oil revenues, the only real source of income for the foreseeable future), would belong to all Iraqis equally and would be managed by the federal government. Different ethnicities and sects would almost certainly form majorities in particular regions. The point was not to change such distributions, but to emphasize the equality of citizenship.

Such a federalism, Iraqi democrats said, was the logical extension of the principle of human rights. It was based on the notion that the rights of the part -- whether that part was a single person or a group -- should not be sacrificed to the will of the majority. What people like myself failed to appreciate, or understand, before 2003, were the powerful forces driving toward purely ethnic and sectarian criteria for the definition of the ''parts'' of the new federal idea. The consequence of those forces has been a tremendous weakening of the political idea of Iraq, which the new Constitution has converted into hostility toward central government per se.

A decentralized, federal state system that devolves power to the regions is not the same as a dysfunctional one in which power at the federal level has been eviscerated. The former preserves power while distributing it; the latter destroys it. At the moment Iraqis have a dysfunctional and powerless state. The Constitution does not fix this; it makes it worse.

What began as an American problem is today an Iraqi one. To steer the country away from anarchy and manage the furies that have been unleashed, the following measures need to be undertaken by the new Iraqi Parliament the moment it reconvenes after the elections:

Recognize that at the moment only Kurdistan fulfills the conditions for being a region. Using the Kurdish experience as a model, the Constitution must define the minimum conditions that need to be met by any group of provinces that desire to form themselves into a region. Then set a moratorium of 10 years on the establishment of new regions, this being the time necessary to crush the insurgency, establish properly accountable institutions of law and order and ensure that those applying for such status have met the criteria.

* Limit the size of any new region formed after the 10-year period to a maximum of three governorates and fix the existing unmodified boundaries of the 18 governorates of Iraq as the basis for the establishment of new regions.

* Delete Article 109, which allocates extra oil revenues to the regions that generate them. There is no defensible case for imposing special reparations on the Sunni populace for the crimes of Iraq's former leaders.

* Appoint a committee of expert constitutional lawyers to make the necessary amendments reconciling the legislature with the executive and the different parts of the executive with each other. This is not a matter that can be resolved by the politicians alone.

DEMOCRACY is not reducible to placing an Iraqi seal of approval upon a situation that is manifestly worsening by the day. The 79 percent of people who voted in favor of a constitution that promotes ethnic and sectarian divisions are unwittingly paving the way for a civil war that will cost hundreds of thousands of Iraqi lives. Nothing is worth that.

Without the return of real power to the center, the ascent of sectarian and ethnic politics in Iraq to the point of complete societal breakdown cannot be checked. We cannot fight the insurgency, rebuild Iraq and live in any meaningful sense as part of the modern world without a state. There are no human rights, no law, and no democracy without the state; there is only anarchy and a state of insecurity potentially much worse than what Iraqis are experiencing today. For democracy to emerge out of the current chaos in Iraq, the state must be saved from the irresponsibility of the Iraqi parties and voting blocs that are today killing it.

Bush’s Snoopgate

The president was so desperate to kill The New York Times’ eavesdropping story, he summoned the paper’s editor and publisher to the Oval Office. But it wasn’t just out of concern about national security.

By Jonathan Alter
Newsweek

Dec. 19, 2005 - Finally we have a Washington scandal that goes beyond sex, corruption and political intrigue to big issues like security versus liberty and the reasonable bounds of presidential power. President Bush came out swinging on Snoopgate—he made it seem as if those who didn’t agree with him wanted to leave us vulnerable to Al Qaeda—but it will not work. We’re seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War.

No wonder Bush was so desperate that The New York Times not publish its story on the National Security Agency eavesdropping on American citizens without a warrant, in what lawyers outside the administration say is a clear violation of the 1978 Foreign Intelligence Surveillance Act. I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting,
but one can only imagine the president’s desperation.

The problem was not that the disclosures would compromise national security, as Bush claimed at his press conference. His comparison to the damaging pre-9/11 revelation of Osama bin Laden’s use of a satellite phone, which caused bin Laden to change tactics, is fallacious; any Americans with ties to Muslim extremists—in fact, all American Muslims, period—have long since suspected that the U.S. government might be listening in to their conversations. Bush claimed that “the fact that we are discussing this program is helping the enemy.” But there is simply no evidence, or even reasonable presumption, that this is so. And rather than the leaking being a “shameful act,” it was the work of a patriot inside the government who was trying to stop a presidential power grab.

No, Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker. He insists he had “legal authority derived from the Constitution and congressional resolution authorizing force.” But the Constitution explicitly requires the president to obey the law. And the post 9/11 congressional resolution authorizing “all necessary force” in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.

What is especially perplexing about this story is that the 1978 law set up a special court to approve eavesdropping in hours, even minutes, if necessary. In fact, the law allows the government to eavesdrop on its own, then retroactively justify it to the court, essentially obtaining a warrant after the fact. Since 1979, the FISA court has approved tens of thousands of eavesdropping requests and rejected only four. There was no indication the existing system was slow—as the president seemed to claim in his press conference—or in any way required extra-constitutional action.

This will all play out eventually in congressional committees and in the United States Supreme Court. If the Democrats regain control of Congress, there may even be articles of impeachment introduced. Similar abuse of power was part of the impeachment charge brought against Richard Nixon in 1974.

In the meantime, it is unlikely that Bush will echo President Kennedy in 1961. After JFK managed to tone down a New York Times story by Tad Szulc on the Bay of Pigs invasion, he confided to Times editor Turner Catledge that he wished the paper had printed the whole story because it might have spared him such a stunning defeat in Cuba.

This time, the president knew publication would cause him great embarrassment and trouble for the rest of his presidency. It was for that reason—and less out of genuine concern about national security—that George W. Bush tried so hard to kill the New York Times story.

Impeach the Bastards

AlterNet
A Time to Impeach
By Doug Ireland, Direland
Posted on December 20, 2005, Printed on December 20, 2005
http://www.alternet.org/story/29826/

When the U.S. Senate last Friday refused to renew the liberticidal Patriot Act -- with its provisions for spying on Americans' use of libraries and the Internet, among other Constitution-shredding provisions of that iniquitous law -- it was in part because that morning's New York Times had revealed how Bush and his White House had committed a major crime.

By ordering the National Security Agency -- the N.S.A, so secretive that in Washington its initials are said to stand for "No Such Agency" -- to wiretap and eavesdrop on thousands of American citizens without a court order, Bush committed actions specifically forbidden by the Foreign Intelligence Surveillance Act (FISA). Passed in 1978 after the Senate's Church Committee documented in detail the Nixon administration's widespread use of U.S. intelligence agencies to spy on the anti-Vietnam war movement and other political dissidents, FISA "expressly made it a crime for government officials 'acting under color of law' to engage in electronic eavesdropping 'other than pursuant to statute.'", as the director of the Center for National Security Studies, Kate Martin, told the Washington Post this past weekend.

And the FISA statute required authorization of the secret Foreign Intelligence Surveillance Court to make such domestic spying legal. Bush and his NSA sought no such authorization before invading American citizens' right to privacy -- a blatant flouting of the law that made both wavering Democrats and libertarian Republicans mad enough to vote against extending the hideous Patriot Act, which thankfully will now expire at the end of the year.

Bush not only acknowledged, and defended, this illegal eavesdropping in a Saturday radio address, he went further in a Monday morning press conference, saying he'd "suggested" it. But as Wisconsin Democratic Senator Russ Feingold -- who, together with conservative Idaho Republican Larry Craig, led the filibuster that defeated the Patriot Act's renewal -- said this weekend, "This is not how our democratic system of government works--the president does not get to pick and choose which laws he wants to follow."

But Bush had plenty of bipartisan help from Democratic co-conspirators in keeping knowledge of this illegal spying from reaching the American public. It began in November 2001, in the wake of 9/11, and -- from the very first briefing for Congressional leaders by Dick Cheney until today -- Democrats on the Senate and House Intelligence Committees were told about it. Those witting and complicit in hiding the crime included Democratic Senator John D. Rockefeller IV, former chairman and later ranking member of the Senate Intelligence Committee, and House Minority Leader Nancy Pelosi, former ranking member on the House Intelligence Committee. They knew it was a crime -- Rockefeller, for example, warned the administration against it -- and yet did not make it public. They were frightened by polls showing security hysteria at its height.

Worse, the New York Times itself was part of the coverup. When it broke its scoop last Friday, the Times in its article admitted that, "After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted."

In other words, the Times sat on its story until after the 2004 presidential elections, when American voters might have been able to stop this criminal conduct by voting out the criminal. Not content with employing Judith Miller as the megaphone for relaying the Bush administration's lies about Saddam's having weapons of mass destruction, the Times again proved its servility to power by not telling its readers it knew of criminal spying on them for an entire year, until the election cycle was long past. Yet this aspect of the Times' story has gone unremarked in the mass media.

Bush's excuses for the illegal eavesdropping are indeed risible. The Times didn't mention it, but of 19,000 requests for eavesdropping the Federal Intelligence Security Court has received from the Executive Branch since 1979, only five have ever been refused. Bush claimed again on Monday that this flagrant flouting of the FISA law was necessary because fighting "terrorists" needed to be done "quickly." Yet, as the Times reported, the secret court can grant approval for wiretaps "within hours."

And the excuse Bush offered Monday morning that this illegal subversion of FISA was necessary to prevent 9/11-style terrorism is equally laughable. As the ACLU pointed out in a study of FISA two years ago, "Although the Patriot Act was rushed into law just weeks after 9/11, Congress's later investigation into the attacks did not find that the former limits on FISA powers had contributed to the government's failure to prevent the attacks."

A Zogby poll released Nov. 4 showed that, when asked if they agreed that, "If President Bush did not tell the truth about his reasons for going to war with Iraq, Congress should consider holding him accountable through impeachment," Americans answered yes by 53 percent to 42 percent. It is therefore not simply extremist raving to suggest that impeachment of George Bush should be put on the table.

Remember that, in the impeachment of Richard Nixon, Article 2 of the three Articles of Impeachment dealt with illegal wiretapping of Americans. It said that Nixon committed a crime "by directing or authorizing [intelligence] agencies or personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office."

There was no national security justification for Bush's illegal NSA wiretaps -- which could easily have been instituted by following the FISA law's provisions -- and, instead of being related to "enforcement of laws," Bush's eavesdropping was indisputably in contravention of the law of the land.

And when a president commits a crime in violation of his oath of office swearing to uphold the law, it is time to impeach.

Doug Ireland writes the blog, Direland.
© 2005 Independent Media Institute. All rights reserved.
View this story online at: http://www.alternet.org/story/29826/

George W. Bush: Emperor or Military Dictator?

Bush shows he believes he is above the law
Marie Cocco

December 20, 2005

Who needs the Patriot Act? Not President Run-amok.

The president has now admitted to secretly authorizing what amounts to an end-run around the law that is meant, specifically and determinedly, to keep intelligence agencies from snooping on Americans at home.

In asking the super-secret National Security Agency to monitor - without any court oversight whatsoever - the international phone calls and e-mails of hundreds of Americans, President George W. Bush has gone far beyond what even the Patriot Act allows. So why make a fuss over the Senate's refusal to extend it? Even if lawmakers passed it, Bush would ignore it.

This is a president who believes no law applies to him.

He long ago violated a 1971 statute that bars the detention of U.S. citizens "except pursuant to an Act of Congress." In his "war on terror," Bush has nonetheless thrown American citizens into the clink and asserted he has the right to hold them there indefinitely, without charge and without showing any evidence against them.

He failed to comply with U.S. and international laws against cruel, inhuman and degrading treatment of prisoners - his political apparatchiks at the Pentagon and in the Justice Department instead concocted justifications for violating them. The president relented only days ago, and only after Sen. John McCain (R-Ariz.) forced submission by engineering overwhelming votes in Congress to bring a measure of sanity to our detention schemes.

The Geneva Conventions have been tossed aside like wastepaper. They are replaced by gross violations of basic human rights at U.S. detention facilities, secret and semi-secret, around the world. The Pentagon, supposedly restricted from gathering information on the American citizenry, has compiled a vast database of information on anti-war protesters and those opposed to military recruitment practices.

Who else is in their sights? We do not yet know.

This president simply disregards the Constitution, save for the one clause he invokes to justify his violation of so many others: He is, he says, commander-in-chief. This power trumps all.

It wipes out an individual's guarantee of a public trial, and the right to be brought before a court to hear charges. It erases the clause that says treaties are "the supreme Law of the Land." It eviscerates the citizens' protection against being deprived of "life, liberty, or property, without due process of law." Now with his extra-legal surveillance scheme, Bush has violated the right of the people to be free from "unreasonable searches and seizures."

This is no ideal forced upon us by the squishy Europeans. The law regulating intelligence-gathering within the United States is a homegrown statute, put in place to guard against the excesses of a besieged president, acting under the guise of "national security" to monitor and harass political enemies.

Do not be fooled by arguments that getting a warrant to wiretap for intelligence reasons is cumbersome. The secret court authorizing them can act within hours, in the dead of night. Wartime rules are spelled out in the law. During the security threat surrounding the turn of the millennium in 2000, former Attorney General Janet Reno told the 9/11 commission, she often sat in a secure office "until the early hours of the morning" to sign applications for secret warrants to put before the special court. This court almost never says no: It approved 1,754 surveillance orders in 2004 and rejected none.

Even this is too much checking-and-balancing for Bush, who claims for himself the power of kings. He vows to continue the unsupervised, secret surveillance, even though it has now been exposed. How is he to be stopped?

Congressional hearings won't be enough. The deferential inquests into Abu Ghraib barely changed detention policies. The Constitution might contemplate impeachment - I have never before uttered the word in relation to Bush - but it will not be brought about by a Republican Congress that has mostly put partisan loyalty ahead of duty. Congressional elections next year that change control of one chamber on Capitol Hill to the Democrats would at least bring stiffer oversight.

For now we seem destined to live in a nation that spies on its own people, detains hundreds without charge and maintains secret prisons around the world. This is not the Soviet Union. But it is what we have allowed our union to become.

Copyright 2005 Newsday Inc.

Republicans: FUCK THE POOR

The New York Times
December 20, 2005
Budget Accord Could Mean Payments by Medicaid Recipients
By ROBERT PEAR

WASHINGTON, Dec. 19 - The final Congressional agreement on a budget bill gives states sweeping new authority to impose premiums and co-payments on Medicaid recipients, freezes doctors' pay under Medicare and toughens work requirements for welfare recipients.

In negotiations over Medicaid, the health program for more than 50 million low-income people, House Republicans generally prevailed over the Senate.

The agreement between the two chambers, approved on Monday by the House, incorporates many recommendations from governors of both parties, who had sought new power to rein in the soaring cost of Medicaid.

Under the agreement, states can charge premiums and higher co-payments for a wide range of Medicaid benefits, including prescription drugs, doctors' services and hospital care.

States can scale back benefits, capping or eliminating coverage for services that federal law now guarantees.

In addition, states can end Medicaid coverage for people who fail to pay premiums for 60 days or more. Pharmacists can refuse to fill prescriptions, and doctors and hospitals can deny services, for recipients who do not make the required co-payments.

The agreement also makes it more difficult for older Americans to qualify for Medicaid coverage of nursing home care after transferring assets to their children or other relatives for less than fair market value.

In general, Medicaid would not cover long-term care for any person with home equity of more than $500,000, although a state could choose to set the ceiling at a higher level, up to $750,000.

The Congressional Budget Office said the budget bill would save the federal government $26.5 billion in Medicaid and $22.3 billion in Medicare over the next 10 years.

Drug makers and health insurance companies escaped largely unscathed. Negotiators rejected several provisions of the Senate bill that would have cut their payments.

Under the final agreement, all states have to ensure that half their welfare recipients are engaged in work or related activities like searching for employment.

Under the current law, a reduction in a state's caseload leads to a reduction in its work requirements, and administration officials said the number of welfare recipients had fallen so far in some states that the federal law imposed no meaningful work requirements.

Republicans hailed the final budget bill as evidence of their determination to rein in the automatic growth of benefit programs.

Representative Joe L. Barton, Republican of Texas, the architect of the Medicaid provisions, said the higher co-payments were needed to "encourage personal responsibility" among low-income people.

Medicaid recipients can be charged 10 percent of the cost of any item or service if their family incomes were 100 percent to 150 percent of the federal poverty level, $12,830 to $19,245 for a family of two. Recipients with incomes above that can be required to pay 20 percent of the cost of any item or service. Total co-payments for all people in a family cannot exceed 5 percent of family income.

Senator Jeff Bingaman, Democrat of New Mexico, said, "It's very disappointing that Congressional leaders would decide to cut health care benefits and coverage to children, while imposing a greater cost-sharing burden on the poor, disabled and elderly."

AARP, the lobby for older Americans, denounced the final agreement.

"It protects the pharmaceutical industry, the managed care industry and other providers at the expense of low-income Medicaid beneficiaries and Medicare beneficiaries who will foot the bill," said William D. Novelli, chief executive of AARP.

Lawrence E. Davidow of Suffolk County, N.Y., president of the National Academy of Elder Law Attorneys, whose members advise older people and their families, said, "I'm horrified and surprised that Congress would turn its back on middle-class senior citizens who look to Medicaid as a safety net to pay for long-term care."

Under the agreement, Mr. Davidow said, "it's more likely that people who need long-term care will lose their homes and everything they have worked a lifetime to acquire, because they'll have to use their assets to pay for nursing home care."

The Bush administration announced last month that it would cut fees paid to doctors treating Medicare patients by 4.4 percent in 2006. It said the cut was required by a statutory formula. Congress decided instead to freeze doctors' fees next year. That would increase Medicare spending over the next five years by $7.3 billion above the amounts expected under the current law, the budget office said. Beneficiaries would pay some of the cost through higher premiums.

Under the agreement, states will not have to provide Medicaid recipients with all the services now required by federal law, but can offer a more modest package of benefits resembling commercial insurance.

The agreement also gives states new authority to charge co-payments as a way to discourage the use of high-cost drugs and the use of hospital emergency rooms for nonemergency care.

House Republican aides said they meant to preserve one of the most important Medicaid benefits, known as "early and periodic screening, diagnostic and treatment services," for children younger than 19. The bill appears to be ambiguous on whether that is an option or a requirement for states, but Senate Republicans said it was intended to be a requirement.

* Copyright 2005The New York Times Company

The President's Men

by Martin Garbus

Mafia and white-collar defendants want legal opinions that they know are wrong but are defenses if they are prosecuted. The criminal defendants claim they thought they were doing what's right because their lawyers said so. This disproves any claim that they had a criminal intent, where intent is an essential nature of the crime.

It is a rock-solid defense that more often than not persuades the jury that even though what the defendant did was wrong, he should be found innocent because he relied on his lawyers.

There is never proof that the criminal defendants told their lawyers to write wrong legal opinions. On the contrary, the proof is that the defendant did not know if it was right or wrong and wanted to make sure that it was right before he did the money-laundering or bought stocks on inside information.

This shows how careful the defendants were.

The lawyers know exactly what they have to do. The lawyers know their jobs, and the wonderful pay they receive is dependent on these contrived decisions. The stronger the opinion, the better the client likes it.

If the lawyers don't do it, there are hundreds of other lawyers who will do it. The rewards are attractive. In order to self-justify, they will often start to believe their own lies.

That's how President Bush, Vice President Cheney, and Secretary of Defense Rumsfeld work. When they need legal opinions to justify torture, Alberto Gonzales, the Attorney General, John Ashcroft, his predecessor, and those who work for them, particularly Jon Yoo, the most scholarly and reckless of them, all give the required opinions.

They write, citing dozens of cases, in forty-page briefs, that the Geneva Convention does not apply to unlawful combatants. That torture is uniquely permissible because of the unique nature of the War on Terror.

When the politicians need a legal opinion that says you can jail American citizens and aliens nearly forever, the lawyers deliver it. When they need a legal opinion that says habeas corpus does not apply to the detainees, and the federal courts have no jurisdiction over them, the lawyers deliver it. When the President wants an opinion that says illegal surveillance of American citizens is legal, he gets it.

The warrantless wiretapping and eavesdropping violates the Federal Communications Act and is crime. There is no question of that. It is an impeachable offense. The politicians' defense is that they rely on the best lawyers on the country, those who work for them at the Department of Justice, and at the Attorney General's office.

When the President wants an opinion that the unique war on terror gives him unique Presidential powers that allow him to do nearly anything, he gets it. I fear that if he wanted to get a legal opinion stating that he had the power to execute people without the intrusion of the legal system, he would get it.

The President, Vice President, and Secretary of Defense win, we lose.