Known Unknowns

Kevin Drum says Bush's lawbreaking on FISA is different from what Richard Nixon did with surveillance because Bush wasn't abusing surveillance for partisan or personal gains. To which I say: How do we know? The Washington Post published an editorial slamming opponents of retroactive telecom immunity that made the following pseudo-argument:

No one can claim with certainty that his or her communications were monitored. The likelihood of prevailing — or even getting very far — with such lawsuits is low. The litigation seems aimed as much at using the tools of discovery to dislodge information about what the administration actually did as it is at redressing unknown injuries.

Benjamin Friedman observes that "you have to wonder why the Post thinks that dislodging information about an illegal wiretapping programs is nefarious." Meanwhile I have to wonder why so much of the elite press is so absolutely certain all this illegal surveillance was undertaken in good faith when, in fact, we have no idea what happened and the administration has been trying very hard to make sure we never do.

Comments

It sure is strange that all these huge media conglomerates don't care and don't want us to concern ourselves with the "5 double-Ewes" regarding the biggest illegal wiretap in the history of the US of A. Oh wait, that whole who, what, when, where, why crap was just something I learned in school.. elementary school. So... either these "journalists" never went to elementary school or the corporate overlords don't care about their "duty to inform the people" (it is just so 20th century) and just want to see their conglomerate get more conglomerated (and you don't piss off the guys who will gut that regulation for you, hell, they're your golfing buddies anyhow).

Can you imagine the negative "press" Obama will get if he tries to reinstate the fairness doctrine.

Posted by YankeeFrankee | July 4, 2008 10:35 AM

How many reporters were wire-tapped to trace back embarrassing leaks? I guess news organizations really don't want to know.

Posted by Th | July 4, 2008 10:39 AM

Gee, you'd think that once upon a time the Washington Post might have been the lead plaintiff in "using the tools of discovery to dislodge information about what the administration actually did," as I thought reporting what the administration did was their primary purpose!!

Posted by Trevor | July 4, 2008 10:40 AM

C'mon Matt, how can you not trust the inherent good faith of the Bush Administration? When has it ever misled you?

Assuming for argument's sake that a government can act in "good faith" while intentionally breaking the law, it seems highly unlikely that the illegal spying was done in a good faith effort to thwart terror attacks, for the simple reason that no good faith effort to thwart terror attacks would have required the Administration to break the law. The FISA procedure as it existed in 2001 was extremely permissive; the government's warrant requests were virtually never refused, and the government could even spy first and request the warrant later if it was in a hurry. If the Administration's activities had any real connection to counter-terrorism, it is just unfathomable that the FISA procedure would have hindered them.

I've long suspected that if the truth ever comes out, we'll learn that they were spying on political opponents, performing corporate espionage for campaign contributors, or something else having nothing to do with national security that they couldn't afford to let even the top-secret, rubber-stamp FISA court know about. But the truth probably will not come out, because only the DFH's seem to want it to.

Posted by Gator90 | July 4, 2008 10:40 AM

The press holds Obama to a higher standard than either McCain or Bush.

And after all the corruption and ineptness of this administration, with the evidence of the Justice Dept scandals, the Valerie Plame scandal, why exactly does the press take the Bush administration in good faith? It makes no sense to me.

Posted by cnnr | July 4, 2008 10:41 AM

If it wasn't used for partisan gain or private ends, that'd pretty much be a first in the history of covert surveillance. Not to mention going against a great deal of what we already know about this administration.

Posted by Doug | July 4, 2008 10:43 AM

Considering we're talking about a secret court here, the reality is that there never was any real protection against this sort of inappropriate gathering of political information. (Make no mistake, that's what we're talking about here). The argument about the FISA bill amounts to a hill of beans, and maybe a fact-finding mission to get some semblence of "revenge" on the Bush administration..not that they don't deserve it, but whatever.

This is a political issue, and requires political solutions. Namely, it requires electing people who will respect the spirit of the constitution. Considering that most folks don't respect the spirit of rights and freedoms in the first place, it's a hard sell.

Posted by Karmakin | July 4, 2008 11:01 AM

It would be ironic that if an Obama administration wanted to stop this, they would first wiretap neocon political opponents and release embarrassing secrets to show how such power can be abused.

Posted by Reality Man | July 4, 2008 11:18 AM

Why, if they have this tool which they assume will never be made public, would they not use it.

It's use would have been simplicity itself. As an example, early in the campaign, have the traffic for a week from kerry2004.com forwarded to a handler. The handler notes those who are in decision-making positions (schedule and message, mainly), and who they correspond with, adding those to the mining operation and thereafter receiving a copy of all traffic to and from.

It's basically the Belichick theory, only with more than a few seconds to plan and react.

Easy to always be a step ahead, and make the other side look slow and confused, when you know the play?

What are the odds this didn't happen?

Posted by drinkof | July 4, 2008 11:34 AM

Considering we're talking about a secret court here, the reality is that there never was any real protection against this sort of inappropriate gathering of political information. (Make no mistake, that's what we're talking about here). The argument about the FISA bill amounts to a hill of beans, and maybe a fact-finding mission to get some semblence of "revenge" on the Bush administration..not that they don't deserve it, but whatever.

They're trying to remove the court oversight and failed, now the wiretappers have a week to give notice to the court who they tapped.

But yes, if the judges are corrupt, obviously inappropriate stuff can happen. If you study the history of the Nixon administration and what happened after 9-11, fact is some conservatives and career professionals pushed back against the removal of oversight, even though abuse obviously did happen. Then go back to LBJ and Hoover and abuse was rappant.

I don't see the Bush adminstration doing this stuff but some future administration easily could.

(and then you have some on the anti-war left saying Saddam Hussein police state "wasn't that bad.")

Posted by Peter K. | July 4, 2008 11:49 AM

Few thoughts pretty much at random:

The Nixon gang did their illegal snooping on us left wing and counter culture types with a blanket sort of 'national security' excuse. But they would have been laughed out of town if they had specifically accused the Southern Christian Leadership Council, for example, of having links to NoVietNam or the Soviet Union. Bush & Co were specific in saying they were looking for 'terrorist cells' and such. The difference might have fooled or intimidated the MSM.

The FISA Bill (note--I haven't actually read it myself) has nothing to say about criminal prosecutions. Wonder what an O'Bama appointed special court or special presecutor could find in the way of criminal law? Cause, really, bringing civil suits in a case like this where Constitutional issues are involved is like swatting pteradactyls with a fly swatter. What we need is a bunch of Bushies doing perp-walks.

Its almost creepy to see so many of Nixon's henchmen (Cheney, Rummy, Eliot Abrams) with their fingers in this pie. Deja vue all over again.

Happy Fourth of July everybody!!

Posted by JohnMcC | July 4, 2008 12:07 PM

first of all, it's simply not true that nixon was only behaving illegally in terms of personal/partisan gain: he believed that national security leaks (hence the "plumbers") were harming his ability to conduct foreign policy.

in addition, he did all kinds of things for personal and partisan gain.

as for peter k, whatever in the universe are you talking about? what "pushback" in the nixon administration? you mean that elliot richardson (not a conservative) wouldn't fire archibald cox?

as for conservative pushback against bush administration abuses: yes, there have been a handful of conservatives who have taken this matter with the seriousness it deserves (bob barr, for example), but nowhere close to as many liberals, and there is not a single conservative yakker in the land pushing back. (as for the notion that the bush administration wouldn't use wiretapping: you can say that with a straight face after seeing how the justice department was staffed under bush? talk about denial).

finally, as for your pathetic little throwaway line, peter k, what i really want to say is go cheney yourself you little pissant, but i'll also put it more smoothly: you haven't the slightest idea what you are saying. what the anti-war left (insofar as we can talk about it as a collective) was saying was "there is no genocide going on now. there is no wmd threat. and therefore, there is no basis to engage in this stupid little piece of adventurism and we shouldn't." there was no argument that "gee, saddam uses wiretapping, what's so bad about that?"

PS. Abuse was rampant under Hoover for administration after administration. presumably you mention lbj because you're a little pissant.

Posted by howard | July 4, 2008 12:10 PM

Hilarious stupidity. No one, and I mean NO one, gives a shit if the NSA screens foreign calls for terrorist connections. Please, screen my calls.

Where are the poor innocents being prosecuted subsequent to these "abuses"? This is the perfect Boomerang Issue. The more you lefties whine about this, the more the public thinks you're nuts.

Have a ball.

Posted by robert powell | July 4, 2008 12:32 PM

And in his struggle to post ever more perfect idiocy robert powell scores again! Echoing the Nixon defenders he cries "where are the innocents being prosecuted." As if that were the standard for civil liberties.

So go ahead, strip search robert powell when he is walking down the street. He hasn't done anything wrong and so has nothing to hide. After all, you aren't going to falsely prosecute him, so it's fine.

Posted by Not as stupid as robert powell | July 4, 2008 12:53 PM

Thank you robert powell, for illustrating perfectly the phenomenon Matt was discussing. You ... have ... no ... idea ... how the Bush Administration was using the powers it illegally exercised, but you pretend that you know and then assume that the Administration's activities were benign and appropriate. You're entitled to do that, but some of us would like to actually know what happened, rather than just pretend and assume.

Posted by Gator90 | July 4, 2008 1:28 PM

actually, i look forward to screening robert powell's calls, every single last one of them. please forward your phone number, robert: i want to listen in. i personally think you are a terrorist enabler and i'm going to have to check each and every one of your calls to determine if i'm right.

you've got nothing to hide so i'm sure you don't care, so please provide us the necessary data (i'll be happy to send a "bug" to your mailing address for you to install).

Posted by howard | July 4, 2008 1:34 PM

Kevin Drum is an idiot and the most overrated blogger on the "left" side of the spectrum.

Posted by LarryM | July 4, 2008 1:38 PM

If there's *anything* we should have learned over the last 7 years, it's that this administration shouldn't get the benefit of the doubt on anything.

Posted by McKingford | July 4, 2008 1:48 PM

Since the Bush administration is only illegally wiretapping the terrorists and breaking the law to protect Americans and has only the purest intentions, I'm sure they will have no problem providing details about the program(s). Obviously only someone with something to hide would be uncooperative.

Posted by justinf | July 4, 2008 2:54 PM

It is my understanding this new FISA compromise does NOTHING to stop criminal prosecution, it just immunizes against CIVIL suits.

Is that incorrect?

It is also my understanding that the most attractive part of this new bill is that it puts more spine in the court oversight we have had for decades.

Is that incorrect?

In my ever so humble opinion, if folks are dissatisfied with their telcom spying they hold the ultimate key to stopping that by DISCONTINUING their accounts with those telcoms. Suing civilly will do nothing for the country or for privacy rights...use the real key and stop giving these companies your business.

We don't know what the Bush admin has been doing and we likely won't until they are out of office. If criminal prosecutions are intact in this new bill, and the court aspect is stiffened, how is that a bad thing for the country or for us as individuals?

Has anyone insisting on spouting off about it read this bill? Is there any real evidence that our civil rights will be hurt by this bill?

Or is all the kerfuffle simply picking of nits for the right to have something to complain about?

Posted by G Davis | July 4, 2008 3:36 PM

Drum's column dances around the issue I raised in the other thread about Nixon vs. Bush. He notes that Nixon had a list of enemies and acted against them, but then draws the distinction that Bush's motives are not "venal". Let me see if I have this straight; spying on a handful of people and obstructing justice for political gain, very bad. Spying, incarcerating, torturing, invading, killing to keep us safe (or so they say in public) from the ter'rists, not so bad. So, if you adopt stalinist tactics in pursuit of goals shrouded in lofty rhetoric you are not "venal". Hoo-kay.

I'm afraid I will have to stick with my default analysis, that the difference between Nixon and Bush is the powerlessness of Bush's victims.

Posted by Steve S. | July 4, 2008 4:44 PM

G Davis, canceling your account doesn't stop the telecoms from listening in to your calls to people who still use them. Or your calls to people who don't use them that gets switched through their interconnections. And it's not like there is lots of competition to the big telecom companies. All those little local phone companies and apparently independent cell phone carriers are usually just reselling service from the big telecom companies...

If the wiretapping was legal they don't need immunity. If it was/is illegal why shouldn't they be prosecuted?

Posted by Adirondacker | July 4, 2008 6:10 PM

Apparently this is all we have to work with: the whole spying gig is either no big deal or the second coming of Stalin. The left ignores the context of 9/11, and the right overblows it. Its a good thing that most Americans are neither.

We can't have a serious dialog on anything in this country because the shrill people on the left and right have taken over. If nothing else, this displays the need for a new fairness doctrine.

The fairness doctrine forced news reporting to see multiple sides of an issue, whether they wanted to or not. Up with the fairness doctrine!!

Posted by YankeeFrankee | July 4, 2008 7:07 PM

Matt: "Meanwhile I have to wonder why so much of the elite press is so absolutely certain all this illegal surveillance was undertaken in good faith..."

Matt is one hundred percent correct on that.

Especially when you realize the following:

BOOK REVIEW
Over-the-counter cloak and dagger
Spies For Hire by Tim Shorrock
Reviewed by David Isenberg
http://www.atimes.com/atimes/Middle_East/JG04Ak01.html

But nobody has ever bothered to examine the scope and impact of private contractors in the US intelligence community. That is, until now. Thanks to Tim Shorrock, an investigative journalist who has been researching and writing on the intersection of national security and business issues for over 25 years, we now have a path-breaking book that reveals in copious detail just how far the US intelligence community depends on private contractors.

After reading his book one realizes, to paraphrase the old American Express commercial, that the intelligence bureaucracy can't spy without them. If James Bond were operating today he would have a contract, not a license, to kill.

How dependent is the intelligence community on private-sector spooks? Consider just a few of the facts Shorrock uncovered.

Intelligence contracting has become a $45 billion industry, taking up more than 70% of the $60 billion the US government spends annually on intelligence. Taken as a percentage, this is vastly more than the Pentagon spends on private military contractors.

The companies that make up this intelligence-industrial complex range from the familiar behemoths like Lockheed Martin to major Beltway bandits such as SAIC and Booz, Allen, Hamilton, to tiny and obscures ones like SpecTal and Scitor. The work they do range the gamut, from analyzing signals intelligence gathered by the national Security Agency to providing disguises for CIA officers operating undercover.

Private sector involvement in government surveillance goes far beyond the telecommunications industry to include many of the nation's top information technology companies. At least 50% and as much as 75% of the people at NSA headquarters and its ground stations around the world are contractors.

Contractors have taken over the training of military interrogators at the US Army's Intelligence Center in Fort Huachuca, Arizona. And around the world contractors are taking the place of government operatives. In Pakistan three-quarters of the officers at the CIA station in Islamabad since 9/11 have been private contractors. In Baghdad, contractors have sometimes outnumbered government employees and have taken supervisory positions overseeing what CIA agents do every day.

Dismayingly, but not surprisingly, official information about the scope of intelligence contracting has been deliberately suppressed by the US government. In 2006, the Office of the Director of National Intelligence ordered a study of contracting within the 16 agency intelligence community. But when the time came to release the study in 2007 the ODNI refused to release it. Thus Shorrock's book is the only public source available for an in depth understanding of our outsourced intelligence system.

The key question is whether this outsourcing is really bad. After all, defenders of private military companies argue they just fill a market need. If they follow the contract and the law there is no problem.

Actually, there is. For all the public hand-wringing private military and security contractors have essentially tactical wartime roles, fulfilling specific tasks ranging from logistical support to guarding infrastructure and people. But private intelligence contractors are part of a strategic role. They are part and parcel of the process that generates the intelligence that decides whether a nation should go to a war in the fist place. Think back to the debates over Iraq concerning aluminum tubes, uranium from Niger, and mobile biological labs and then imagine how confident you would feel if such intelligence was the product of firms whose primary motivation was making a profit.

His bottom line is that the vast complex of companies intertwined with the intelligence agencies has created a national Surveillance State made up in part by private interests whose contracts are classified and beyond the reach of congressional oversight committees.

Now this is really bad news. Once again, it is evidence that the US government is now being run as a criminal enterprise (of course, it always was, but now it's far worse.)

What I want to know is when Matt is going to start questioning a lot of other things about this government that might NOT be "in good faith"?

Posted by Richard Steven Hack | July 4, 2008 9:54 PM