The Center for Grassroots Oversight

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Attorney General Alberto Gonzales says he will sharply limit the testimony of former attorney general John Ashcroft and former deputy attorney general James Comey before the Senate Judiciary Committee. The committee is preparing for hearings on the warrantless wiretapping program authorized by President Bush several months after the 9/11 attacks (see Early 2002). Gonzales says that “privilege issues” will circumscribe both men’s testimony: “As a general matter, we would not be disclosing internal deliberations, internal recommendations. That’s not something we’d do as a general matter, whether or not you’re a current member of the administration or a former member of the administration.” He adds, “You have to wonder what could Messrs. Comey and Ashcroft add to the discussion.” Comey was an observer to the late-night visit by Gonzales and then-White House chief of staff Andrew Card to Ashcroft’s hospital room, where Gonzales and Card unsuccessfully attempted to persuade the heavily sedated Ashcroft to reauthorize the program after Comey, as acting attorney general, determined the program was likely illegal (see March 10-12, 2004). Committee chairman Arlen Specter (R-PA) says he has asked Gonzales for permission to call Comey and Ashcroft to testify, but has not yet received an answer. Specter says, “I’m not asking about internal memoranda or any internal discussions or any of those kind of documents which would have a chilling effect.” Specter will ask Ashcroft and Comey to talk about the legal issues at play in the case, including the events surrounding the hospital visit. In the House Judiciary Committee, Republicans block an attempt by Democrats to ask Gonzales to provide legal opinions and other documents related to the program. (Eggen 2/16/2006)

Bruce Fein, a former deputy attorney general in the Reagan administration, testifies before the Senate Judiciary Committee on the subject of the president’s wartime authority and the illegal wiretapping of American citizens (see December 15, 2005). “This is a defining moment in the constitutional history of the United States,” Fein tells the committee. “The theory invoked by the president to justify eavesdropping by the NSA in contradiction to FISA (see April 30, 1986 and October 23, 2001) would equally justify mail openings, burglaries, torture, or internment camps, all in the name of gathering foreign intelligence. Unless rebuked it will lie around like a loaded weapon, ready to be used by any incumbent who claims an urgent need.” In 2007, author and reporter Charlie Savage will write concerning Fein’s statement: “[A] president had secretly claimed the power to ignore a law, and then he had acted on that power. In so doing, the Bush-Cheney administration unleashed imperial power. Even if they had not personally abused their power, there was no guarantee that future presidents would show the same restraint. Moreover, there was no difference in principle between the warrant law [FISA] and any other law that regulates how the president can carry out his national security responsibilities. By demonstrating that a president can set aside a statute or treaty at will, the administration had set a precedent that future presidents, liberal and conservative alike, would be able to cite when they, too, wanted to violate a legal restriction on their power.” (Savage 2007, pp. 133-134)

Governor Mike Rounds (R-SD) of South Dakota signs a bill into law that bans almost all abortions in his state. The law makes all abortions illegal except for cases where the mother’s life is at risk. The law is designed to be appealed to the Supreme Court and give that body a chance to overturn the 1973 Roe v. Wade decision (see January 22, 1973). (CBS News 4/19/2007) In November 2008, South Dakota voters will vote to repeal the law, by a 56 percent-44 percent margin. (Vock 11/8/2008)

Republicans on the Senate Intelligence Committee refuse to allow an inquiry into the Bush administration’s warrantless wiretapping program (see December 15, 2005 and December 18, 2005), with the committee voting 10-8 along party lines to reject such a probe. Senate Judiciary Committee chairman Arlen Specter (R-PA) had advocated such a probe, but White House officials refused to cooperate with his committee, saying they would only cooperate via classified briefings to the Intelligence Committee. However, committee Republicans, led by chairman Pat Roberts (R-KS), have no intention of allowing such an inquiry. Roberts and his fellows say they will push to impose limitations on the program. Committee Democrats accuse their Republican colleagues of colluding with the administration to block the inquiry. “The committee is, to put it bluntly, is basically under the control of the White House,” says ranking committee member John D. Rockefeller (D-WV). “You can’t legislate properly unless you know what’s going on.” The Republicans have left Congress to “legislate in darkness and ignorance,” he says. Republicans say that a new, select subcommittee will increase oversight of the administration’s wiretapping. “It provides for a case-by-case examination and oversight by the United States Congress,” says Mike DeWine (R-OH), who is helping draft the bill for the new oversight subcommittee. “It will be very consistent with what our constitutional obligations are.” DeWine’s bill would allow the administration to ignore restrictions on wiretapping merely by invoking national security, and would not allow the committee to intervene even in clearly unjustified cases of wiretapping. “The White House could just decide not to tell them everything, and there’s no sanction,” says Bruce Fein, a former Reagan administration lawyer. “And the president can still claim that he has inherent power to conduct surveillance.” The bill is “extremely generous to the president,” says conservative law professor Douglas Kmiec. “It is not significantly different from the status quo. And I think the president would be quite delighted by that.” (Klein and Savage 3/8/2006; Savage 2007, pp. 204)

President Bush signs the USA Patriot Improvement and Reauthorization Act of 2005 into law. The bill, which extends and modifies the original USA Patriot Act (see October 26, 2001), was driven through Congress primarily by the Republican majorities in both Houses. However, Senator Dianne Feinstein (D-CA) cosponsored the Senate bill, numerous Democrats in both Houses voted with the Republicans in favor of the bill, and the final bill sailed through the Senate by an 89-10 vote on March 2. (GovTrack 3/9/2006; Library of Congress 3/9/2006) In the signing ceremony, Bush calls the Reauthorization Act “a really important piece of legislation… that’s vital to win the war on terror and to protect the American people.” He repeatedly evokes the 9/11 attacks as a reason why the new law is needed. (Government Printing Office 3/9/2006)
Provisions for Oversight Added - One of the reasons why the reauthorization bill received such support from Congressional moderates on both sides of the aisle is because Congress added numerous provisions for judicial and Congressional oversight of how government and law enforcement agencies conduct investigations, especially against US citizens. Representative Butch Otter (R-ID) said in 2004 that Congress came “a long way in two years, and we’ve really brought an awareness to the Patriot Act and its overreaches that we gave to law enforcement.” He adds, “We’ve also quieted any idea of Patriot II, even though they snuck some of Patriot II in on the intelligence bill” (see February 7, 2003). (Holland 1/23/2004)
Opposition From Both Sides - Liberal and conservative organizations joined together in unprecedented cooperation to oppose several key provisions of the original reauthorization and expansion of the Patriot Act, including easing of restrictions on government and law enforcement agencies in obtaining financial records of individuals and businesses, “sneak-and-peek” searches without court warrants or the target’s knowledge, and its “overbroad” definition of the term “terrorist.” Additionally, lawmakers in Congress insisted on expiration dates for the various surveillance and wiretapping methodologies employed by the FBI and other law enforcement agencies (see Early 2002). (Associated Press 5/23/2005) The final bill mandates that anyone subpoenaed for information regarding terrorist investigations has the right to challenge the requirement that they not reveal anything about the subpoena, those recipients will not be required to tell the FBI the name of their lawyer, and libraries that are not Internet service providers will not be subject to demands from “national security letters” for information about their patrons. Many of the bill’s provisions will expire in four years. (Grier 3/3/2006)
Reauthorizing Original Provisions - The bill does reauthorize many expiring provisions of the original Patriot Act, including one that allows federal officials to obtain “tangible items,” such as business records from libraries and bookstores, in connection with foreign intelligence and international terrorism investigations. Port security provisions are strengthened, and restrictions on the sale of over-the-counter cold and allergy medicine that can be used in the illegal manufacture of methamphetamine are imposed, forcing individuals to register their purchases of such medicines and limiting the amounts they can buy. (CBS News 3/9/2006)
Bush Signing Statement Says He Will Ignore Oversight Mandates - But when he signs the bill into law, Bush also issues a signing statement that says he has no intention of obeying mandates that enjoin the White House and the Justice Department to inform Congress about how the FBI is using its new powers under the bill. Bush writes that he is not bound to tell Congress how the new Patriot Act powers are being used, and in spite of what the law requires, he can and will withhold information if he decides that such disclosure may “impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.” (Statement on Signing the USA PATRIOT Improvement and Reauthorization Act 3/9/2006; Savage 3/24/2006) Senator Patrick Leahy (D-VT) says that Bush’s assertion that he can ignore provisions of the law as he pleases, under the so-called “unitary executive” theory, are “nothing short of a radical effort to manipulate the constitutional separation of powers and evade accountability and responsibility for following the law.” Law professor David Golove says the statement is illustrative of the Bush administration’s “mind-bogglingly expansive conception” of executive power, and its low regard for legislative power. (Savage 3/24/2006) Author and legal expert Jennifer Van Bergen warns of Bush using this signing statement to avoid accountability about the NSA’s warrantless wiretapping program, writing: “[I]t is becoming clearer every day that Bush has no qualms about violating either international laws and obligations or domestic laws. The recent revelations about the secret NSA domestic surveillance program revealed Bush flagrantly violating the Foreign Intelligence Surveillance Act which was specifically enacted to prevent unchecked executive branch surveillance. … His signing statements, thus, are nothing short of an attempt to change the very face of our government and our country.” (Institute for Public Accuracy 3/27/2006)
Request to Rescind Signing Statement - In late March, Democratic House members Jane Harman and John Conyers will write to Attorney General Alberto Gonzales requesting that the administration rescind the signing statement, writing: “As you know, ‘signing statements’ do not have the force of law. Legislation passed by both Houses and signed by the president does. As Article 1, Section 7, of the Constitution states: ‘Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it.’” Bush and Gonzales will ignore the request. (US House of Representatives 3/29/2006)

Senator Russell Feingold (D-WI) tells reporters that he intends to push through legislation that would censure President Bush because of his domestic surveillance program (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, Late 2003-Early 2004, April 19-20, 2004, June 9, 2005, June 9, 2005, December 15, 2005, December 17, 2005, December 19, 2005, December 24, 2005, January 5, 2006, January 18, 2006, January 18, 2006, January 23, 2006, and January 30, 2006). “What the president did by consciously and intentionally violating the Constitution and laws of this country with this illegal wiretapping has to be answered,” Feingold tells an interviewer. “Proper accountability is a censuring of the president, saying, ‘Mr. President, acknowledge that you broke the law, return to the law, return to our system of government.‘… The president has broken the law and, in some way, he must be held accountable.… Congress has to reassert our system of government, and the cleanest and the most efficient way to do that is to censure the president. And, hopefully, he will acknowledge that he did something wrong.” Senate Majority Leader Bill Frist (R-TN) calls Feingold’s proposal “a crazy political move.” The Senate Intelligence Committee, following the Bush administration’s lead, has rejected some Democrats’ call for a full investigation of the surveillance program (see February 1-6, 2006). Instead, the committee has adopted a Republican plan for a seven-member subcommittee to conduct oversight. Feingold says his censure motion is not “a harsh approach, and it’s one that I think should lead to bipartisan support.” Frist, however, says: “I think it, in part, is a political move because here we are, the Republican Party, the leadership in the Congress, supporting the president of the United States as commander in chief who is out there fighting al-Qaeda and the Taliban and Osama bin Laden and the people who have sworn—have sworn—to destroy Western civilization and all the families listening to us.… The signal that it sends that there is in any way a lack of support for our commander in chief who is leading us with a bold vision in a way that we know is making our homeland safer is wrong. And it sends a perception around the world.” Only once in history has a president been censured by Congress: Andrew Jackson in 1834. In the House, Representative John Conyers (D-MI) is exploring the idea of introducing impeachment legislation against Bush. (Files 3/12/2006; Associated Press 3/12/2006) Feingold says on the Senate floor: “The president has violated the law and Congress must respond. A formal censure by Congress is an appropriate and responsible first step to assure the public that when the president thinks he can violate the law without consequences, Congress has the will to hold him accountable.” Most Congressional Democrats want nothing to do with either Feingold’s or Conyers’s legislative ideas, and some Republicans seem to be daring Democrats to vote for the proposal. Vice President Dick Cheney tells a Republican audience in Feingold’s home state of Wisconsin, “Some Democrats in Congress have decided the president is the enemy.” Democratic leaders in the Senate thwart an immediate vote as requested by Frist, and Senator Richard Durbin (D-IL) says he is not sure the proposal will ever come to a vote. Senate Minority Leader Harry Reid (D-NV) says he does not support it and has not read it. Senator Joseph Lieberman (D-CT) makes a similar assertion. In the House, Minority Leader Nancy Pelosi (D-CA) refuses to support such a proposal, saying in a statement that she “understands Senator Feingold’s frustration that the facts about the NSA domestic surveillance program have not been disclosed appropriately to Congress. Both the House and the Senate must fully investigate the program and assign responsibility for any laws that may have been broken.” (Kellman 3/14/2006) Former Nixon aide John Dean testifies in support of Feingold’s censure motion (see March 31, 2006). However, the censure motion, lacking support from Democratic leaders and being used by Republicans as a means to attack Democrats’ patriotism, never comes to a vote. (Klein 2009, pp. 84)

Conservative columnist and blogger Michelle Malkin levels racially inflammatory accusations against two California Hispanic politicians and hundreds of thousands of California Hispanics. In her nationally syndicated column, Malkin accuses Hispanic demonstrators in Los Angeles, who recently protested against restrictive immigration policies, of engaging in “militant racism” that went unremarked because Hispanics, like African-Americans, are, she writes, “protected minorities” who can engage in racist rhetoric without fear of criticism. Malkin accuses the protesters, whom she says displayed “virulent anti-American hatred,” of being part of what she calls the “reconquista” movement, a purported conspiracy by Mexico and illegal Mexican immigrants to “take over” parts of the American Southwest (see June 24, 2002). She terms Los Angeles Mayor Antonio Villaraigosa and California Lieutenant Governor Cruz Bustamante “Latino supremacists.” (Malkin 3/29/2006; Media Matters 3/29/2006)

Retired AT&T technician and incipient whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) issues his first press release, summarizing his knowledge of AT&T’s complicity with the National Security Agency (NSA) in that agency’s illegal domestic wiretapping program (see December 31, 2005). Klein has given documentation supporting his claims to the Electronic Frontier Foundation (EFF) in support of that organization’s lawsuit against AT&T (see January 31, 2006). Klein’s press release tells of the NSA’s “secret room” in AT&T’s Folsom Street, San Francisco, facility (see January 2003) and reveals for the first time the NSA’s use of the Narus STA 6400 to comb through the wiretapped data (see January 16, 2004). The release reads in part: “Based on my understanding of the connections and equipment at issue, it appears the NSA is capable of conducting what amounts to vacuum-cleaner surveillance of all the data crossing the Internet—whether that be people’s email, Web surfing, or any other data. Given the public debate about the constitutionality of the Bush administration’s spying on US citizens without obtaining a FISA warrant (see December 18, 2005, December 20, 2005, December 21, 2005, December 21, 2005, December 25, 2005, January 5, 2006, January 10, 2006, January 18, 2006, January 18, 2006, and January 31, 2006), I think it is critical that this information be brought out into the open, and that the American people be told the truth about the extent of the administration’s warrantless surveillance practices, particularly as it relates to the Internet. Despite what we are hearing (see December 19, 2005, December 19, 2005, December 21-22, 2005, and January 19, 2006), and considering the public track record of this administration (see December 24, 2005, Early 2006, January 23, 2006, January 25-26, 2006, and February 2, 2006), I simply do not believe their claims that the NSA’s spying program is really limited to foreign communications or otherwise consistent with the NSA’s charter or with FISA. And unlike the controversy over targeted wiretaps of individuals’ phone calls, this potential spying appears to be applied wholesale to all sorts of Internet communications of countless citizens.” Klein issues the press release in part to give himself some publicity, and the protection from government harassment such publicity might entail (see February 11, 2006 and After). (Wired News 4/7/2006; Singel 4/7/2006; Klein 2009, pp. 66-67)

Former Secretary of State Colin Powell tells reporter Robert Scheer that neither he nor any of the State Department’s top experts believed that Iraq ever posed an imminent nuclear threat, contrary to the statements of President Bush, Vice President Dick Cheney, and other top White House officials. Powell says that Bush followed the advice of Cheney and the CIA (see October 1, 2002) in making the claim (see Mid-January 2003 and 9:01 pm January 28, 2003) and taking the country to war in Iraq. Scheer asks Powell why, in light of the State Department’s own intelligence bureau correctly concluding that the claims that Iraq attempted to buy uranium from Niger were false (see March 1, 2002, March 4, 2002, Mid-October 2002, and January 12, 2003), Bush ignored that information in making his case for war? Powell responds: “The CIA was pushing the aluminum tube argument heavily (see March 7, 2003) and Cheney went with that instead of what our guys wrote. That was a big mistake. It should never have been in the speech. I didn’t need [former ambassador Joseph] Wilson to tell me that there wasn’t a Niger connection. He didn’t tell us anything we didn’t already know. I never believed it” (see January 26, 2003). Powell adds that the responsibility for pressing the argument that Iraq was a nuclear threat was not Bush’s; rather, “That was all Cheney.” In his article, Scheer asks, “Why was this doubt, on the part of the secretary of state and others, about the salient facts justifying the invasion of Iraq kept from the public until we heard the truth from whistle-blower Wilson, whose credibility the president then sought to destroy?” (Scheer 4/11/2006)

CBS’s 60 Minutes airs a half-hour interview with Italian journalist Elisabetta Burba, the first reporter to obtain the now-infamous forged documents that purported to show that Iraq attempted to buy uranium from Niger (see Between Late 2000 and September 11, 2001, Late September 2001-Early October 2001, October 15, 2001, December 2001, February 5, 2002, February 12, 2002, October 9, 2002, October 15, 2002, January 2003, February 17, 2003, March 7, 2003, March 8, 2003, and 3:09 p.m. July 11, 2003). The now-defunct 60 Minutes II had planned to show the segment just before the November 2004 elections, but questions from right-wing bloggers and commentators about another 60 Minutes II segment—one that showed President Bush did not fulfill his Texas Air National Guard duties during the Vietnam War—led CBS executives to pull the segment (see Late September 2004). (Isikoff and Hosenball 9/23/2004; Rich 2006, pp. 142-143; CBS News 4/23/2006) CBS News president Andrew Heyward refused to air the story during the last week of September 2004, saying it would be “inappropriate” to air it during the last weeks of the 2004 presidential election campaign. Media observer Mary Jacoby says the CBS report contains little new information, but “is powerfully, coherently, and credibly reported.” She calls CBS “cowardly” for not airing the segment when it was originally scheduled. (Jacoby 9/29/2004) Author Jane Hamsher, the owner of the progressive blog FireDogLake, writes that the 60 Minutes segment is “a simple, direct narrative that will reach millions of Americans and let them know that they have been duped.” The segment does not delve into the outing of CIA official Valerie Plame Wilson, staying strictly with the Iraq-Niger uranium claims, and, she writes, demonstrates that the officially sanctioned “investigations” into the claims were little more than “partisan hatchet jobs.” (Jane Hamsher 4/23/2006)

President George Bush issues a memo granting the Director of National Intelligence (DNI) the authority to authorize a corporation to conceal any of its activities related to national security under United States Code 15 USC 78m(b)(3)(A). (US Code Title 15,78m; George W. Bush 5/5/2006) The memo follows recent allegations that telecommunications firms AT&T, BellSouth, and Verizon have all provided records of US citizens’ telephone communications to the National Security Agency as part of the NSA’s warrantless surveillance program (see October 2001 and February 5, 2006). Almost two months later, Representative Jan Schakowsky (D-IL) learns of the memo and demands an explanation from DNI John Negroponte. Schakowsky will write in part: “I am concerned about this new authority because under it, the DNI does not need to seek any permission from the president or Congress to issue such directives and there is minimal oversight once the directive is given. In fact, it is my understanding that since the DNI is only required to report on directives ‘active’ on the annual October 1st reporting date, the DNI could in fact cover up all directives by having them expire on September 30th of the reporting year. I believe that such expansive authority coupled with lax oversight could lead to the misuse of the power, the over-issuing of directives, and the hiding of activities that could be unconstitutional and violations of citizens’ civil liberties. For instance, I believe that such directives could have been issued to the major telecommunications firms concerning the sharing of phone call records with the National Security Agency without citizens’ knowledge or consent.” Schakowsky asks if there was “a particular corporate activity that the DNI or another believed warranted such protection from disclosure and liability,” how many such directives his office has issued since he was granted such authority, whether any such directives were retroactive, how it is determined that “national security” matters are at stake and who makes such determinations, and whether directives telecommunications firms provide citizens’ phone records without their knowledge or consent are being “covered up.” Negroponte’s reply to Schakowsky, if any, is not known. (Jan Schakowsky 6/27/2006)

The Wall Street Journal’s Stephen Moore interviews reclusive billionaire Charles Koch, the head of the Koch Brothers oil empire. Among the items of interest in the interview is Koch’s admission that he, along with his brother David (see 1977-Present, 1979-1980, 1981-2010, 1984 and After, and Late 2004), coordinates the funding of the conservative infrastructure of some of the most influential front groups, political campaigns, think tanks, media outlets, and other such efforts through a semiannual meeting with wealthy conservative donors. (Moore himself receives Koch funding for his work, according to a Think Progress report published four years later. In return, Moore is quite laudatory in the interview, writing that Koch is a “creative forward-thinking… professorial CEO” who “is immersed in the ideas of liberty and free markets.”) Koch tells Moore that his basic goal is to strengthen what he calls the “culture of prosperity” by eliminating “90 percent” of all laws and government regulations. Moore writes of the twice-yearly conference: “Mr. Koch’s latest crusade to spread the ideas of liberty has been his sponsorship of a twice-yearly conference that gathers together many of the most successful American entrepreneurs, from T. Boone Pickens to former Circuit City CEO Rick Sharp. The objective is to encourage these captains of industry to help fund free-market groups devoted to protecting the fragile infrastructure of liberty. That task seems especially critical given that so many of the global superrich, like George Soros and Warren Buffett, finance institutions that undermine the very system of capitalism that made their success possible (see January - November 2004). Isn’t this just the usual rich liberal guilt, I ask. ‘No,’ he says, ‘I think they simply haven’t been sufficiently exposed to the ideas of liberty.’” (Moore 5/6/2006; Fang 10/20/2010)

Maurice Hinchey.Maurice Hinchey. [Source: Washington Post]A Justice Department investigation into the National Security Agency’s warrantless wiretapping program ends before it begins, because the NSA will not grant Justice Department lawyers routine security clearances. The investigation had been opened in February 2006 (see February 2, 2006) when Representative Maurice Hinchey (D-NY) asked the Justice Department’s Office of Professional Responsibility (OPR) to investigate the NSA’s warrantless surveillance of US citizens (see After September 11, 2001). Without security clearances, investigators could not examine NSA lawyers’ role in the program. OPR counsel H. Marshall Jarrett writes in a letter to Hinchey: “We have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program. Without these clearances, we cannot investigate this matter and therefore have closed our investigation.” Jarrett and his office have made routine requests for security clearances since January, to no avail. The OPR’s investigation would have focused strictly on whether Justice Department lawyers violated ethical rules, and would not have examined the entire NSA program. Hinchey says, “This administration thinks they can just violate any law they want, and they’ve created a culture of fear to try to get away with that.” (Associated Press 5/11/2006) Hinchey writes to Jarrett, regarding the failure to grant clearances: “We are perplexed and cannot make sense of your denial of these security clearances. Our request did not ask OPR to give us the intricate details of the NSA program; we understand that such a request would not even be within OPR’s jurisdiction. There appear to be no reasonable grounds for blocking this investigation. Not only does your denial of their request for a security clearance not make sense, it is unprecedented.” Hinchey will try, and fail, to get a bill through the Republican-controlled House Judiciary Committee to force the White House, Justice Department, and Defense Department to turn over to Congress all documents related to the closure of the OPR probe. He will write in a letter to President Bush, “If the NSA program is justified and legal, as you yourself have indicated, then there is no reason to prevent this investigation from continuing.” (US House of Representatives 7/18/2006) In June 2006, it will be revealed that Bush personally made the decision not to grant the OPR investigators security clearances (see Late April 2006).

USA Today headline.USA Today headline. [Source: CBS News]USA Today reports that “[t]he National Security Agency (NSA) has been secretly collecting the phone call records of tens of millions of Americans, using data provided by the nation’s three biggest telecommunications providers, AT&T, Verizon, and BellSouth,” according to “people with direct knowledge of the arrangement.” None of the sources would allow USA Today to identify them by name, job, or affiliation. The USA Today story claims that the NSA program “does not involve the NSA listening to or recording conversations,” but does use “the data to analyze calling patterns in an effort to detect terrorist activity,” according to their sources. One source says that the NSA program is compiling “the largest database ever assembled in the world,” with the goal of creating “a database of every call ever made” within US borders. President Bush has said that the NSA program is focused exclusively on international calls, and for the calls to be recorded, “one end of the communication must be outside the United States.” However, this is now shown not to be the case (see January 16, 2004). A US intelligence official says that the NSA program is not recording the actual phone calls themselves, but is collecting what he calls “external” data about the communications to allow the agency to emply “social network analysis” for insight into how terrorist networks are connected with one another. Another large telecommunications company, Qwest, has refused to help the NSA eavesdrop on customer calls (see February 2001, February 2001 and Beyond, and February 27, 2001). USA Today’s sources say that the NSA eavesdropping program began after the 9/11 attacks, a claim that is not bolstered by the facts (see 1997, February 27, 2000, February 27, 2000, December 2000, February 2001, February 2001, February 2001 and Beyond, February 2001, Spring 2001, April 2001, April 4, 2001, July 2001, Before September 11, 2001, and Early 2002). The sources say that the three companies agreed to provide “call-detail records,” lists of their customers’ calling histories, and updates, which would allow the agency to track citizens’ calling habits. In return, the sources say, the NSA offered to pay the firms for their cooperation. After the three firms agreed to help the agency, USA Today writes, “the NSA’s domestic program began in earnest” (see After September 11, 2001, After September 11, 2001, October 2001, September 2002, and Spring 2004). NSA spokesman Don Weber says the agency is operating strictly “within the law,” but otherwise refuses to comment. Former US prosecutor Paul Butler says that the Foreign Intelligence Surveillance Act (FISA), which governs surveillance operations by US intelligence agencies, “does not prohibit the government from doing data mining” (see 1978). White House press spokesman Dana Perino says, “There is no domestic surveillance without court approval,” and all surveillance activities undertaken by government agencies “are lawful, necessary, and required for the pursuit of al-Qaeda and affiliated terrorists.” All government-sponsored intelligence activities “are carefully reviewed and monitored,” she adds, and says that “all appropriate members of Congress have been briefed on the intelligence efforts of the United States” (see October 11, 2001 and October 25, 2001 and November 14, 2001). Don Weber, a senior spokesman for the NSA, refuses to discuss the agency’s operations, saying: “Given the nature of the work we do, it would be irresponsible to comment on actual or alleged operational issues; therefore, we have no information to provide. However, it is important to note that NSA takes its legal responsibilities seriously and operates within the law.” All three firms released similar comments saying that they would not discuss “matters of national security,” but were complying with the law in their alleged cooperation with the NSA. The Electronic Frontier Foundation (EFF) is suing AT&T for what it calls its complicity in the NSA’s “illegal” domestic surveillance program (see January 31, 2006). (Cauley 5/11/2006)

Bobby Ray Inman.Bobby Ray Inman. [Source: DefenseTech.org]Former NSA director Bobby Ray Inman says that the secret NSA program to wiretap US citizens’ phone and e-mail conversations without court warrants (see After September 11, 2001) “is not authorized.” President Bush authorized the secret wiretapping over four years ago (see Early 2002), a program only revealed at the end of 2005 (see December 15, 2005). Since the program was revealed, it has created tremendous controversy over its possible illegality and its encroachment on fundamental American civil liberties. Bush and other White House officials have repeatedly asserted that the program is legal, mainly because Bush and his officials assert that the president has the authority to implement such a program (see December 15, 2005); Bush also insists, as recently as the day before Inman’s statement, that the program is only being used to spy on terrorists and the privacy of US citizens is being “fiercely protected,” a statement that does not jibe with the facts. (Democracy Now! 5/12/2006)

Attorney General Alberto Gonzales says that the government has the right to prosecute journalists for publishing classified information. “There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility,” he says during an ABC News interview. “That’s a policy judgment by the Congress in passing that kind of legislation. We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected.” Asked if he is considering prosecuting the New York Times for revealing the Bush administration’s warrantless wiretapping program (see December 15, 2005), Gonzales says the Justice Department is trying to determine “the appropriate course of action in that particular case.” He continues: “I’m not going to talk about it specifically. We have an obligation to enforce the law and to prosecute those who engage in criminal activity.” Experts believe that Gonzales is probably referring to the 1917 Espionage Act, which prohibits government officials from passing classified information to anyone without proper clearance; those same experts say that the Espionage Act was never intended to apply to the press. Furthermore, journalists are protected from such prosecution by the First Amendment. Gonzales says that while the Bush administration respects the right of freedom of the press, “it can’t be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity.” (Liptak 5/22/2006) Thirty years ago, then-White House chief of staff Dick Cheney recommended such prosecution against a journalist who revealed the existence of a Cold War-era submarine program (see May 25, 1975). In 2007, reporter and author Charlie Savage will write that in 1975, the attorney general had scuttled the idea. Now, the attorney general is embracing the idea. (Savage 2007, pp. 175-176)

George Terwilliger, a former deputy attorney general under George H. W. Bush, argues that the current Bush administration’s controversial data mining program (see Late 1999 and After September 11, 2001) is not illegal. Terwilliger tells the conservative National Review, “I think it’s fair to say that the statutes contemplate the transfer of this generic type of data much more on a case-by-case rather than a wholesale basis,” meaning that the law calls for a court order only in cases when the government is making a targeted request for information. But, he adds, “I don’t see anything in the statute that forbids such a wholesale turnover.” Terwilliger’s argument echoes the arguments of the Bush Justice Department, which argues that the data mining program—part of the NSA’s “Stellar Wind” surveillance program (see Spring 2004 and December 15, 2005)—does not technically constitute “electronic surveillance” under the law. Both the Fourth Amendment and the Foreign Intelligence Surveillance Act, as interpreted by the courts, define such actions as “electronic surveillance,” according to a number of legal experts, including law professor Orin Kerr. And, Ars Technica reporter Julian Sanchez notes in 2009, “the Stored Communications Act explicitly makes it a crime to ‘knowingly divulge a record or other information pertaining to a subscriber to or customer of such service… to any governmental entity.’” Sanchez will call Terwilliger’s argument “very strange,” but will note that Terwilliger is the attorney for then-Attorney General Alberto Gonzales and “a prominent defender of the administration’s surveillance policies.” Sanchez will conclude that while the argument “might pass for clever in a high school debate round… [i]t would be deeply unsettling if it [passes] for anything more in the halls of power.” (Spruiell 6/5/2006; Sanchez 12/16/2008)

Vinton Cerf.Vinton Cerf. [Source: Ipswitch.com]The Information Technology Association of America, an information technology (IT) trade association, presents a paper authored by Internet founder Vinton Cerf and others which notes that the new capabilities of electronic surveillance of Internet, cellular communications, and voice-over internet protocols (VoIP) by US government and law enforcement officials under CALEA (see January 1, 1995) is inherently dangerous for fundamental civil liberties as well as technological innovation. (CALEA mandates that US telecommunications providers such as AT&T give US law enforcement agencies and intelligence organizations the ability to wiretap any domestic or international telephone conversations carried over their networks.) Cerf and his colleagues write, “In order to extend authorized interception much beyond the easy scenario, it is necessary either to eliminate the flexibility that Internet communications allow, or else introduce serious security risks to domestic VoIP implementations. The former would have significant negative effects on US ability to innovate, while the latter is simply dangerous. The current FBI and FCC direction on CALEA applied to VoIP carries great risks.” In order to implement the mandates of CALEA, the authors write, the nation’s electronic communications systems will become inherently less secure from hackers and others seeking to eavesdrop or disrupt communications, innocent citizens will not be secure from possibly illegal surveillance by law enforcement or intelligence agencies, and the nation’s communications systems will face near-insurmountable technological hurdles that will make it difficult for US telecommunications and Internet providers to continue to innovate and improve services. They conclude, “The real cost of a poorly conceived ‘packet CALEA’ requirement would be the destruction of American leadership in the world of telecommunications and the services built on them. This would cause enormous and very serious national-security implications. Blindly applying CALEA to VoIP and realtime Internet communications is simply not worth this risk.” (al 7/13/2006 pdf file)

Lawyers file court documents alleging that the National Security Agency (NSA) worked with AT&T to set up a domestic wiretapping site seven months before the 9/11 attacks. The papers are filed as part of a lawsuit, McMurray v. Verizon Communications, which cites as plaintiffs AT&T, Verizon, and BellSouth customers whose privacy was allegedly violated by the NSA warrantless wiretapping program (see May 12, 2006); it also alleges that the firms, along with the NSA and President Bush, violated the Telecommunications Act of 1934 and the US Constitution. AT&T, Verizon, and BellSouth have been accused of working with the NSA to set up domestic call monitoring sites (see October 2001). Evidence that the NSA set up domestic surveillance operations at least seven months before the 9/11 attacks is at the core of the lawsuit (see Spring 2001). The suit is similar to one filed against AT&T by the Electronic Frontier Foundation (EFF—see January 31, 2006) and other such lawsuits. A lawyer for the plaintiffs in McMurray, Carl Mayer, says: “The Bush administration asserted this [the warrantless wiretapping program] became necessary after 9/11. This undermines that assertion.” AT&T spokesman Dave Pacholczyk responds, “The US Department of Justice has stated that AT&T may neither confirm nor deny AT&T’s participation in the alleged NSA program because doing so would cause ‘exceptionally grave harm to national security’ and would violate both civil and criminal statutes.” Verizon has denied being asked by the NSA for its customer phone records, and has refused to confirm or deny “whether it has any relationship to the classified NSA program.” BellSouth spokesman Jeff Battcher says: “We never turned over any records to the NSA. We’ve been clear all along that they’ve never contacted us. Nobody in our company has ever had any contact with the NSA.” The NSA domestic wiretapping program is known as “Pioneer Groundbreaker,” a part of the larger “Project Groundbreaker” (see February 2001). According to Mayer and his fellow lawyer Bruce Afran, an unnamed former employee of AT&T provided them with information about NSA’s approach to AT&T. (That former employee will later be revealed as retired technician Mark Klein—see Late 2002, July 7, 2009, December 15-31, 2005, and April 6, 2006). The lawsuit is on a temporary hiatus while a judicial panel rules on a government request to assign all of the telecommunications lawsuits to a single judge. (Harris 6/30/2006)

Salim Ahmed Hamdan in 1999.Salim Ahmed Hamdan in 1999. [Source: Pubic domain via the New York Times]In the Hamdan v. Rumsfeld case, the Supreme Court rules 5-3 to strike down the Bush administration’s plans to try Guantanamo detainees before military commissions. Ruling in favor of detainee Salim Ahmed Hamdan (see November 8, 2004), the Court rules that the commissions are unauthorized by federal statutes and violate international law. Writing for the majority, Justice John Paul Stevens says, “The executive is bound to comply with the rule of law that prevails in this jurisdiction.” The opinion throws out each of the administration’s arguments in favor of the commissions, including its assertion that Congress had stripped the Supreme Court of the jurisdiction to decide the case. One of the major flaws in the commissions, the Court rules, is that President Bush unilaterally established them without the authorization of Congress. (Greenhouse 6/30/2006) During the oral arguments three months before, Hamdan’s lawyer, Neal Katyal, told the Court: “The whole point of this [proceeding] is to say we’re challenging the lawfulness of the tribunal [the military commissions] itself. This isn’t a challenge to some decision that a court makes. This is a challenge to the court itself, and that’s why it’s different than the ordinary criminal context that you’re positing.” (Savage 2007, pp. 274-275)
Major Defeat for Bush Administration - Civil libertarian and human rights organizations consider the ruling a shattering defeat for the administration, particularly in its assertions of expansive, unfettered presidential authority. Bush says in light of the decision, he will work with Congress to “find a way forward” to implement the commissions. “The ruling destroys one of the key pillars of the Guantanamo system,” says Gerald Staberock, a director of the International Commission of Jurists. “Guantanamo was built on the idea that prisoners there have limited rights. There is no longer that legal black hole.” The ruling also says that prisoners held as “enemy combatants” must be afforded rights under the Geneva Conventions, specifically those requiring humane treatment for detainees and the right to free and open trials in the US legal system. While some form of military trials may be permissible, the ruling states that defendants must be given basic rights such as the ability to attend the trial and the right to see and challenge evidence submitted by the prosecution. Stevens writes that the historical origin of military commissions was in their use as a “tribunal of necessity” under wartime conditions. “Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections.” (Greenhouse 6/30/2006) In 2007, author and reporter Charlie Savage will write, “Five justices on the Supreme Court said Bush had broken the law.” (Savage 2007, pp. 275)
Hardline Conservative Justices Dissent - Stevens is joined by Justices David Souter, Stephen Breyer, and Ruth Bader Ginsburg. Justice Anthony Kennedy issues a concurring opinion. Dissenting are Justices Samuel Alito, Antonin Scalia, and Clarence Thomas. Thomas, in a dissent signed by Scalia and Alito, calls the decision “untenable” and “dangerous.” Chief Justice John Roberts recused himself from the case because of his participation in a federal appeals court that ruled in favor of the administration (see November 8, 2004).
Not Charged for Three Years - Hamdan is a Guantanamo detainee from Yemen, captured in Afghanistan in November 2001 and taken to Guantanamo in June 2002. He is accused of being a member of al-Qaeda, in his function as driver and bodyguard for Osama bin Laden. He was not charged with a crime—conspiracy—until mid-2004. (Greenhouse 6/30/2006)

The cover of ‘Conservatives Without Conscience.’The cover of ‘Conservatives Without Conscience.’ [Source: Barnes and Noble (.com)]Author and former Nixon White House counsel John Dean writes in his book Conservatives Without Conscience that it was never public opinion that drove Richard Nixon to resign his office (see August 8, 1974).
Loss of Support among White House Officials Forced Resignation - In 1981, social scientist Bob Altermeyer wrote in his book Right Wing Authoritarianism that Nixon resigned, not because of his plummeting poll ratings, but “because [Nixon]‘s attorney had forced the disclosure of evidence so damaging that it seemed certain he would be convicted of high crimes by the Senate.” Dean approvingly cites Altermeyer’s conclusion and adds, “This is true, but there is more to the story.” Nixon had a number of legal recourses to answer any charges brought against him, Dean writes, “many of which [President] Bush and [Vice President] Cheney are promoting today under the rubric of national security and the inherent power of the presidency.” Nixon finally resigned, Dean argues, not because of public opinion, or of fear of the law, or even because of the erosion of support he suffered among members of Congress. It was the abandonment of Nixon by his own defenders in the White House that finally drove Nixon to resign. “Other than White House counsel Fred Buzhardt, and possibly chief of staff Al Haig (with whom Buzhardt had roomed at West Point), no one was aware that Nixon was lying about what he knew and when he knew it once the cover-up had initially fallen apart. Nixon provided the lawyer he had hired to defend him in the House’s impeachment inquiry (see May 9, 1974), James St. Clair, with false information, and St. Clair—as it happened—was a man of integrity and not a right-wing authoritarian follower. When he found out that his client had lied to him he had two choices: to resign or to join the new cover-up. He was, as it happened, interested in participating in the latter.”
Bush, Cheney Would Defy Law, Dean Argues - Dean continues: “Nixon at one point considered defying the Supreme Court ruling that he turn over his incriminating tapes (evidence that revealed that his defense was a sham) (see July 24, 1974) on the very grounds that Bush and Cheney argue. They have authority under the Constitution to read it and comply with it as they see fit. Once it was apparent that Richard Nixon had broken the law, he made the most significant decision of his presidency: the decision to honor the rule of law and resign.… [T]here is little doubt in my mind that Bush and Cheney, in the same situation, would not budge; rather, they would spin the facts as they always have, and move forward with their agenda. The president and vice president, it appears, believe the lesson of Watergate was not to stay within the law, but rather not to get caught. And if you do get caught, claim that the president can do whatever he thinks necessary in the name of national security.” (Dean 2006, pp. 181-182)

Civil liberties lawyer and columnist Glenn Greenwald states that the recent Supreme Court ruling in Hamdan v. Rumsfeld (see June 30, 2006), finding that the Bush administration’s Guantanamo Bay military commissions violate both federal law and the Geneva Conventions, also proves that the NSA’s warrantless wiretapping program is illegal (see December 15, 2005). “To arrive at its decision,” Greenwald writes, “the Court emphatically rejected the administration’s radical theories of executive power, and in doing so, rendered entirely discredited the administration’s only defenses for eavesdropping on Americans without the warrants required by law. Actual compliance with the Court’s ruling, then, compels the administration to immediately cease eavesdropping on Americans in violation of FISA,” the Foreign Intelligence Surveillance Act (see 1978). “If the administration continues these programs now, then they are openly defying the Court and the law with a brazeness and contempt for the rule of law that would be unprecedented even for them.” Greenwald notes that FISA prohibits any surveillance of American citizens without judicial approval and oversight. The Bush administration has already admitted to conducting just such surveillance (see December 17, 2005 and December 21, 2005), and President Bush has even stated his intention to expand the program (see December 19, 2005). The Justice Department and a number of administration officials have attempted to claim the NSA surveillance program is both legal and necessary (see December 19, 2005, December 19, 2005, December 21-22, 2005, and Early 2006); Greenwald writes that the Hamdan decision “decimated” those claims, a conclusion shared by a number of legal experts (see January 9, 2006). Moreover, he writes, there is no remaining excuse for Democratic senators not to endorse Senator Russ Feingold’s resolution to censure Bush for violating FISA (see March 12, 2006 and After). The argument advanced by, among others, Senator Barack Obama (D-IL), that Bush believed he was complying with the law because his lawyers told him he was in compliance, is no longer relevant in light of Hamdan, Greenwald argues. “[T]here is no longer any good faith basis left for violating FISA. Ongoing warrantless eavesdropping can only be ordered by the president with a deliberate intent to break the law. After Hamdan, there are no more excuses left for the president to violate FISA, and there is therefore no more excuse left for Democratic senators to refuse to take a stand with Sen. Feingold against the administration’s lawbreaking.” Bush has two clear choices, Greenwald writes: either to comply with FISA or openly defy the Supreme Court. “If we are a country that continues to operate under the rule of law, compliance with the Supreme Court’s ruling compels the immediate cessation of the president’s warrantless eavesdropping program, as well as what are undoubtedly the other, still-secret programs prohibited by law but which have been justified by these same now-rejected theories of unlimited executive power. Put simply, after Hamdan, there are no more excuses left for the president’s refusal to comply with the law.” (Greenwald 7/8/2006)

Libertarian Representative Ron Paul (R-TX), contemplating a run for the 2008 presidential nomination, discusses the many federal programs, agencies, and bureaus he would eliminate if he had the power. He would do away with the CIA, the Federal Reserve, the Food and Drug Administration (FDA), the IRS, and the Department of Education, among others. He would eliminate Social Security, Medicare, and Medicaid. He would abolish the federal income tax (see April 28, 1999). He would zero out federal funding for public education, leaving that to local governments. Paul recently refused to vote for federal funds to aid victims of Hurricane Katrina, explaining that to do so would “rob” other Americans “in order to support the people on the coast.” He routinely votes against federal subsidies for farmers. He supports absolute gun rights, and absolutely opposes abortion, though he thinks regulations supporting or denying abortion should be left up to the states. He wants to repeal federal laws regulating drugs and allow prohibited drugs such as heroin to be sold legally. Paul says the US should withdraw from the United Nations and NATO, and wants the country to stop giving foreign aid to any country for any reason, calling such assistance “foreign welfare.” He even says President Lincoln should never have taken the nation to war to abolish slavery. Referring to the years before the income tax, Paul says: “We had a good run from 1776 to 1913. We didn’t have it; we did pretty well.” As for Social Security, “we didn’t have it until 1935,” Paul says. “I mean, do you read stories about how many people were laying in the streets and dying and didn’t have medical treatment?… Prices were low and the country was productive and families took care of themselves and churches built hospitals and there was no starvation.” Historian Michael Katz describes himself as aghast at Paul’s characterization of American life before Social Security. “Where to begin with this one?” he asks. “The stories just break your heart, the kind of suffering that people endured.… Stories of families that had literally no cash and had to kind of beg to get the most minimal forms of food, who lived in tiny, little rooms that were ill-heated and ill-ventilated, who were sick all the time, who had meager clothing.” Charles Kuffner of the Texas progressive blog Off the Kuff writes, “I can only presume that the Great Depression never occurred in whatever universe Paul inhabits.” (Copeland 7/9/2006; Charles Kuffner 7/10/2006)

Responding to columnist Robert Novak’s disclosure that White House political strategist Karl Rove was one of his sources in the Plame Wilson identity leak (see July 12, 2006), Mary Matalin, the former media adviser to Vice President Dick Cheney, launches an attack against the prosecutors investigating the leak on Fox News. Matalin says that neither Lewis Libby, the former White House official charged with perjury and obstruction in the investigation (see October 28, 2005), nor anyone else committed a crime—even going so far as to claim that special prosecutor Patrick Fitzgerald acknowledged that no one committed a crime—and former ambassador Joseph Wilson “flat-out lied” in his July 2003 op-ed debunking the Iraq-Niger uranium claim (see July 6, 2003). Fitzgerald repeatedly asserted the serious nature of Libby’s crimes in Libby’s indictment, noting that Libby both lied and obstructed justice in his dealings with the FBI and with Fitzgerald’s grand jury. Moreover, Matalin’s claim that Wilson was “lying” is countered by numerous findings that the Iraq-Niger claims were absolutely false (see Between Late 2000 and September 11, 2001, Late September 2001-Early October 2001, October 15, 2001, December 2001, February 5, 2002, February 12, 2002, October 9, 2002, October 15, 2002, January 2003, February 17, 2003, March 7, 2003, March 8, 2003, and 3:09 p.m. July 11, 2003), including a July 2004 Senate Intelligence Committee report on prewar intelligence (see July 9, 2004). Matalin goes on to say that “everybody in town knew” that Valerie Plame Wilson was a CIA agent, an assertion again debunked by Fitzgerald in his indictment. (Media Matters 7/12/2006)

Judge Vaughn Walker of the US District Court of Northern California rejects a request by the Justice Department to dismiss a lawsuit by the Electronic Frontier Foundation (EFF—see January 31, 2006) against AT&T. The EFF argues that AT&T violated its customers’ privacy by colluding with the National Security Agency (NSA) in that agency’s allegedly illegal domestic wiretapping project. The government has asserted that the lawsuit would jeopardize “state secrets” if permitted to go forward (see May 22, 2006 and June 23, 2006). According to AT&T whistleblower Mark Klein, working with the EFF in the lawsuit, Walker “ridicule[s]” the government’s request for dismissal on state secrets grounds, finding that “[t]he government has opened the door for judicial inquiry by publicly confirming and denying material information about its monitoring of communications content.… AT&T and the government have for all practical purposes already disclosed that AT&T assists the government in monitoring communication content. [T]he government has publicly admitted the existence of a ‘terrorist surveillance program’ (see After September 11, 2001, After September 11, 2001, October 2001, and September 2002).… Considering the ubiquity of AT&T telecommunications services, it is unclear whether this program could even exist without AT&T’s acquiescence and cooperation.” EFF had given Walker the ammunition for his finding by providing him with a raft of media stories about AT&T’s involvement in the NSA surveillance program, as well as media coverage of Klein’s assertions (see April 12, 2006 and May 17, 2006). “The very subject matter of this action is hardly a secret” any longer, Walker finds (see May 24, 2006). “[D]ismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.” Walker also rejects a separate motion to dismiss by AT&T, which had argued that its relationship with the government made it immune from prosecution. Marc Rotenberg of the Electronic Privacy Information Center (EPIC) says: “This cases arises against the backdrop of the accountability of the government as it pursues its surveillance program. This is a significant victory for the principle of government accountability.” AT&T spokesman Walt Sharp refuses to give a direct comment about the ruling, but says that AT&T has always protected its customers’ privacy (see February 2001 and Beyond, February 2001, and Late 2002-Early 2003). The government will obtain a stay of Walker’s ruling while it files an appeal, preventing the EFF documents from being publicly disseminated. (Markoff 7/21/2006; Klein 2009, pp. 78-79)

The American Bar Association (ABA)‘s Task Force on Presidential Signing Statements and the Separation of Powers Doctrine issues its final report for its investigation into whether President Bush has exceeded his presidential authority by using signing statements to assert that he can ignore or override laws passed by Congress (see June 4, 2006).
Bush Violating the Constitution - The report concludes that Bush is violating the Constitution by signing a bill and then issuing a signing statement declaring that he will refuse to obey selected sections of that bill. The president’s own belief that a particular provision of a law is unconstitutional carries no legal weight, and gives him no right to ignore or disobey that provision, the task force finds. The Constitution gives presidents only two options: veto a bill, or sign it and enforce it. “The president’s constitutional duty is to enforce laws he has signed into being, unless and until they are held unconstitutional by the Supreme Court,” the report reads. “The Constitution is not what the president says it is.”
De Facto Line-Item Veto - Signing statements as used by Bush and earlier presidents (see 1984-1985, August 23, 1985 - December 1985, October 1985, February 6, 1986 and After, and November 1993) are evolving into a kind of back-door line-item veto, which the Constitution does not grant presidents—especially when Congress cannot override it. “A line-item veto is not a constitutionally permissible alternative,” the report reads, “even when the president believes that some provisions of a bill are unconstitutional. A president could easily contrive a constitutional excuse to decline enforcement of any law he deplored, and transform his qualified veto into a monarch-like absolute veto.”
Bringing the Presidency Back into Alignment - Over 150 newspaper editorial boards, columnists, and cartoonists quickly endorse the ABA’s call to end the abuse of signing statements. Some critics of the ABA report say that, in attempting to avoid singling out Bush for criticism, the task force failed to address the root issue behind the signing statements—the unitary executive theory espoused by the administration (see April 30, 1986). Instead of asking that signing statements themselves be ended, some critics say, the Bush administration’s attempts to usurp other branches’ power for the presidency must be curbed. Law professor Laurence Tribe calls the Bush administration “pathological power holders” and “misfits” who are abusing a valid presidential tool. Task force member Mickey Edwards, a former Republican congressman, says the fundamental issue is to bring the presidency back into proper alignment with the other two branches. “It’s not about Bush, it’s about what should be the responsibility of a president,” he says. “We are saying that the president of the United States has an obligation to follow the Constitution and exercise only the authority the Constitution gives him. That’s a central tenet of American conservatism—to constrain the centralization of power.” (American Bar Association 7/23/2006 pdf file; Savage 2007, pp. 245-247)

Cover of ‘The Shadow Party.’Cover of ‘The Shadow Party.’ [Source: Brazos Bookstore]Authors David Horowitz and Richard Poe publish a book titled The Shadow Party: How George Soros, Hillary Clinton, and Sixties Radicals Seized Control of the Democratic Party, that purports to prove Jewish billionaire George Soros, who finances progressive and Democratic Party causes, is in reality a Nazi collaborator and anti-Semite. However, the book is riddled with doctored quotes, misinformation, factual errors, and outright lies. Progressive media watchdog Web site Media Matters notes that the book relies on long-discredited accusations from the authors’ “Front Page Magazine” Web site, from their articles on conservative Web publications such as WorldNetDaily and NewsMax, and on unsourced allegations from political extremist Lyndon LaRouche and his followers, who have called Soros a “Nazi beast-man” and a “small cog in Adolf Eichmann’s killing machine,” aiding “the Holocaust against 500,000 Hungarian Jews.” Media Matters calls the book “a new low in the long-running Republican Party and conservative movement campaign of scurrilous personal attacks against Soros, a major supporter of progressive causes in the US and abroad.” The organization also notes that the Web sites used in the book’s research are largely funded by conservative billionaire Richard Mellon Scaife, and Scaife-owned newspapers such as the Pittsburgh Tribune-Review have promoted the book. Media Matters documents numerous issues of doctored quotes and falsified claims in the book. (Media Matters 8/2/2006)

Federal district court judge Anna Diggs Taylor rules that the NSA’s warrantless wiretapping program (see Early 2002) is unconstitutional and orders it ended. She amends her ruling to allow the program to continue while the Justice Department appeals her decision. The decision is a result of a lawsuit filed by the American Civil Liberties Union (ACLU) and other civil liberties groups. Taylor rules that the NSA program violates US citizens’ rights to privacy and free speech, the Constitutional separation of powers among the three branches of government, and the Foreign Intelligence Surveillance Act (see 1978). Taylor writes: “It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution.” (Verdict in ACLU et al v. NSA et al 8/17/2006 pdf file; Eggen and Linzer 8/18/2006) The program “violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III,” Taylor writes, and adds, “[T]he president of the United States… has undisputedly violated the Fourth in failing to procure judicial orders.” (CNN 8/17/2006)
Judge Lets One Portion Stand - Taylor rejects one part of the lawsuit that seeks information about the NSA’s data mining program (see October 2001), accepting the government’s argument that to allow that portion of the case to proceed would reveal state secrets (see March 9, 1953). Other lawsuits challenging the program are still pending. Some legal scholars regard Taylor’s decision as poorly reasoned: national security law specialist Bobby Chesney says: “Regardless of what your position is on the merits of the issue, there’s no question that it’s a poorly reasoned decision. The opinion kind of reads like an outline of possible grounds to strike down the program, without analysis to fill it in.” The White House and its Republican supporters quickly attack Taylor, who was appointed to the bench by then-President Jimmy Carter, as a “liberal judge” who is trying to advance the agenda of Congressional Democrats and “weaken national security.” For instance, Senator Mike DeWine (R-OH) says that halting the program “would hamper our ability to foil terrorist plots.” (Eggen and Linzer 8/18/2006)
Democrats, Civil Libertarians Celebrate Ruling - But Democrats defend the ruling. For instance, Senator John Kerry (D-MA) says the ruling provides a much-needed check on the unfettered power of the Bush White House. “[N]o one is above the law,” says Kerry. (Eggen and Linzer 8/18/2006) Lawyers for some of the other cases against the NSA and the Bush administration laud the decision as giving them vital legal backing for their own court proceedings. “We now have a ruling on the books that upholds what we’ve been saying all along: that this wiretapping program violates the Constitution,” says Kevin Bankston, who represents the Electronic Frontier Foundation (EFF) in its class-action case against AT&T for its role in the NSA’s surveillance program (see January 31, 2006). (Eggen and Linzer 8/18/2006) Legal expert and liberal commentator Glenn Greenwald writes that Taylor’s ruling “does not, of course, prohibit eavesdropping on terrorists; it merely prohibits illegal eavesdropping in violation of FISA. Thus, even under the court’s order, the Bush administration is free to continue to do all the eavesdropping on terrorists it wants to do. It just has to cease doing so using its own secretive parameters, and instead do so with the oversight of the FISA court—just as all administrations have done since 1978, just as the law requires, and just as it did very recently when using surveillance with regard to the [British] terror plot. Eavesdropping on terrorists can continue in full force. But it must comply with the law.” Greenwald writes: “[T]he political significance of this decision cannot be denied. The first federal court ever to rule on the administration’s NSA program has ruled that it violates the constitutional rights of Americans in several respects, and that it violates criminal law. And in so holding, the court eloquently and powerfully rejected the Bush administration’s claims of unchecked executive power in the area of national security.” (Greenwald 8/17/2006)
White House Refuses to Comply - The Bush administration refuses to comply with Taylor’s ruling, asserting that the program is indeed legal and a “vital tool” in the “war on terrorism.” It will quickly file an appeal, and law professors on both sides of the issue predict that Taylor’s ruling will be overturned. (Savage 2007, pp. 206)
Lawsuit Ends with White House 'Compromise' - The lawsuit will end when the White House announces a “compromise” between the wiretapping program and FISC (see January 17, 2007).

A bipartisan Senate report finds that no credible evidence of any links between al-Qaeda and Saddam Hussein’s government ever existed, despite repeated and insistent claims by the White House and its allies (see Early 1995), March-June 1998, (2:40 p.m.) September 11, 2001, Shortly After September 11, 2001, September 18, 2001, September 19, 2001, September 21, 2001, October 27, 2001, 2002, February 6, 2002, March 22, 2002, July 25, 2002, September 12, 2002, September 15, 2002, September 25, 2002, October 1, 2002, October 2, 2002, October 7, 2002, October 7, 2002, December 2, 2002, Mid-January 2003, January 26, 2003, January 28, 2003, January 28, 2003, February 1, 2003-February 4, 2003, February 5, 2003, February 5, 2003, February 6, 2003, February 8, 2003, February 9, 2003, February 11 or 12, 2003, February 16, 2003, March 9, 2003, March 17, 2003, March 17-18, 2003, Shortly After April 9, 2003, July 9, 2003, September 7, 2003, September 14, 2003-September 17, 2003, September 28, 2003, December 17, 2003, January 8, 2004, January 9, 2004, Early June 2004, June 14, 2004, June 15, 2004, June 15, 2004, October 4, 2004, May 2005, October 2005, (2006), January 31, 2006, March 29, 2006, and September 10, 2006). Panel Democrats say that the White House knew the intelligence surrounding its claims of such links was flawed and unreliable.
Tenet Admitted to Giving in to Pressure - They note that in July former CIA Director George Tenet told the panel that the White House pressured him to support its arguments and that he agreed despite the findings of his own analysts. “Tenet admitted to the Intelligence Committee that the policymakers wanted him to ‘say something about not being inconsistent with what the president had said,’” says Intelligence Committee member Carl Levin (D-MI). Such compliance was, in hindsight, “the wrong thing to do,” Tenet added, according to Levin. “Well, it was much more than that,” Levin says. “It was a shocking abdication of a CIA director’s duty not to act as a shill for any administration or its policy.” Tenet also admitted that he erred in issuing a statement after President Bush’s October 7, 2002 speech saying that Bush’s claims were consistent with CIA findings (see October 7, 2002).
Republicans Say Report Just 'Election-Year Politicking' - Republican committee members insist that there is little new information about prewar intelligence or claims about Iraq’s links to terrorism. Ranking committee member Pat Roberts (R-KS) accuses Levin and other Democrats of trying to “use the committee… insisting that they were deliberately duped into supporting the overthrow of Saddam Hussein’s regime.… That is simply not true, and I believe the American people are smart enough to recognize election-year politicking when they see it.” Democrats retort that the report speaks for itself.
Impeachment Not Warranted - However, committee Democrats such as John Rockefeller (D-WV) say that the report does not prove any criminal behavior from Bush or his top officials, and say that impeachment of Bush or anyone else is not warranted.
Hussein Opposed to US Policies - An FBI summary quoted in the report shows Hussein acknowledging that his government had met with al-Qaeda leader Osama bin Laden, but denying any collusion. Hussein said he opposed only US policies, and added that “if he wanted to cooperate with the enemies of the US, he would have allied with North Korea or China,” according to the FBI summary.
Other Portions of Report - Other sections of the report find that no evidence existed to support claims that Iraq was reconstituting its nuclear program (see February 7, 2001, February 12, 2001, November 14, 2001, May 2002-September 2002, September 9, 2002, January 9, 2003, March 8, 2003, May 25, 2003, and May 30, 2003), had possessed biological weapons in 2003 (see 2002, 2002-March 2003, Mid-January 2002, March 22, 2002, August 2002, September 2002, September 24, 2002, December 2002, End of December 2002, January 9, 2003, and March 7, 2003), used the Salman Pak facility to train Islamist terrorists (see September 8, 2006), or that Iraqi officials met with 9/11 hijacker Mohamed Atta in the months before the 9/11 attacks (see September 8-10, 2006). The report also finds that the White House relied heavily on false intelligence from Ahmed Chalabi and the Iraqi National Congress (see After August 2, 1989, (1994), January 1996, November 6-8, 2001, Between February 12, 2002 and March 31, 2002, Between February 12, 2002 and March 31, 2002, Summer 2002, and June 26, 2002). (Senate Intelligence Committee 9/8/2006 pdf file; Associated Press 9/9/2006)

President Bush signs the Military Commissions Act into law.President Bush signs the Military Commissions Act into law. [Source: White House]President Bush signs the Military Commissions Act (MCA) into law. (White House 10/17/2006) The MCA is designed to give the president the authority to order “enemy detainees” tried by military commissions largely outside the scope of US civil and criminal procedures. The bill was requested by the Bush administration after the Supreme Court’s ruling in Hamdi v. Rumsfeld (see June 28, 2004) that the US could not hold prisoners indefinitely without access to the US judicial system, and that the administration’s proposal that they be tried by military tribunals was unconstitutional (see June 28, 2004). (Mariner 10/9/2006) It is widely reported that the MCA does not directly apply to US citizens, but to only non-citizens defined as “enemy combatants. (Cohen 10/19/2006) However, six months later, a Bush administration lawyer will confirm that the administration believes the law does indeed apply to US citizens (see February 1, 2007).
Sweeping New Executive Powers - The MCA virtually eliminates the possibility that the Supreme Court can ever again act as a check on a president’s power in the war on terrorism. Similarly, the law gives Congressional approval to many of the executive powers previously, and unilaterally, seized by the Bush administration. Former Justice Department official John Yoo celebrates the MCA, writing, “Congress… told the courts, in effect, to get out of the war on terror” (see October 19, 2006). (Savage 2007, pp. 319, 322)
'Abandoning' Core 'Principles' - The bill passed the Senate on a 65-34 vote, and the House by a 250-170 vote. The floor debate was often impassioned and highly partisan; House Majority Leader John Boehner (R-OH) called Democrats who opposed the bill “dangerous,” and Senate Judiciary Committee member Patrick Leahy (D-VT) said this bill showed that the US is losing its “moral compass.” Leahy asked during the debate, “Why would we allow the terrorists to win by doing to ourselves what they could never do, and abandon the principles for which so many Americans today and through our history have fought and sacrificed?” Senate Judiciary Committee chairman Arlen Specter (R-PA) had said he would vote against it because it is “patently unconstitutional on its face,” but then voted for it, saying he believes the courts will eventually “clean it up.” Specter’s attempt to amend the bill to provide habeas corpus rights for enemy combatants was defeated, as were four Democratic amendments. Republicans have openly used the debate over the MCA as election-year fodder, with House Speaker Dennis Hastert (R-IL) saying after the vote that “House Democrats have voted to protect the rights of terrorists,” and Boehner decrying “the Democrats’ irrational opposition to strong national security policies.” Democrats such as Senator Barack Obama (D-IL) say they will not fight back at such a level. “There will be 30-second attack ads and negative mail pieces, and we will be called everything from cut-and-run quitters to Defeatocrats, to people who care more about the rights of terrorists than the protection of Americans,” Obama says. “While I know all of this, I’m still disappointed, and I’m still ashamed, because what we’re doing here today—a debate over the fundamental human rights of the accused—should be bigger than politics.” (Babington and Weisman 10/19/2006) After winning the vote, Hastert accused Democrats who opposed the bill of “putting their liberal agenda ahead of the security of America.” Hastert said the Democrats “would gingerly pamper the terrorists who plan to destroy innocent Americans’ lives” and create “new rights for terrorists.” (New York Times 10/19/2006)
Enemy Combatants - The MCA applies only to “enemy combatants.” Specifically, the law defines an “unlawful enemy combatant” as a person “who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents,” and who is not a lawful combatant. Joanne Mariner of Human Rights Watch says the definition far exceeds the traditionally accepted definition of combatant as someone who directly participates in hostilities. But under the MCA, someone who provides “material support” for terrorists—whether that be in the form of financial contributions or sweeping the floors at a terrorist camp—can be so defined. Worse, the label can be applied without recourse by either Bush or the secretary of defense, after a “competent tribunal” makes the determination. The MCA provides no guidelines as to what criteria these tribunals should use. Taken literally, the MCA gives virtually unrestricted power to the tribunals to apply the label as requested by the president or the secretary. Mariner believes the definition is both “blatantly unconstitutional” and a direct contradiction of centuries of Supreme Court decisions that define basic judicial rights. (Mariner 10/9/2006) Under this definition, the president can imprison, without charge or trial, any US citizen accused of donating money to a Middle East charity that the government believes is linked to terrorist activity. Citizens associated with “fringe” groups such as the left-wing Black Panthers or right-wing militias can be incarcerated without trial or charge. Citizens accused of helping domestic terrorists can be so imprisoned. Law professor Bruce Ackerman calls the MCA “a massive Congressional expansion of the class of enemy combatants,” and warns that the law may “haunt all of us on the morning after the next terrorist attack” by enabling a round of mass detentions similar to the roundup of Japanese-American citizens during World War II. (Savage 2007, pp. 322)
Military Commissions - The MCA mandates that enemy combatants are to be tried by military commissions, labeled “regularly constituted courts that afford all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions.” The commissions must have a minimum of five commissioned military officers and a military judge; if death is a possible penalty, the commissions must have at least 12 officers. The defendant’s guilt must be proven beyond a reasonable doubt; convictions require a two-thirds vote. Sentences of beyond 10 years require a three-quarters vote, and death penalties must be unanimously voted for. Defendants may either represent themselves or by military or civilian counsel. The court procedures themselves, although based on standard courts-martial proceedings, are fluid, and can be set or changed as the secretary of defense sees fit. Statements obtained through methods defined as torture are inadmissible, but statements take by coercion and “cruel treatment” can be admitted. The MCA sets the passage of the Detainee Treatment Act (DTA—see December 15, 2005) as a benchmark—statements obtained before the December 30, 2005 enactment of that law can be used, even if the defendant was “coerced,” if a judge finds the statement “reasonable and possessing sufficient probative value.” Statements after that date must have been taken during interrogations that fall under the DTA guidelines. Defendants have the right to examine and respond to evidence seen by the commission, a provision originally opposed by the administration. However, if the evidence is classified, an unclassified summary of that material is acceptable, and classified exculpatory evidence can be denied in lieu of what the MCA calls “acceptable substitutes.” Hearsay evidence is admissible, as is evidence obtained without search warrants. Generally, defendants will not be allowed to inquire into the classified “sources, methods, or activities” surrounding evidence against them. Some human rights activists worry that evidence obtained through torture can be admitted, and the fact that it was obtained by torture, if that detail is classified, will not be presented to the court or preclude the evidence from being used. Public access to the commissions will be quite limited. Many experts claim these commissions are illegal both by US constitutional law and international law. (Mariner 10/9/2006)
Secret Courts - The military tribunals can be partially or completely closed to public scrutiny if the presiding judge deems such an action necessary to national security. The government can convey such concerns to the judge without the knowledge of the defense. The judge can exclude the accused from the trial if he deems it necessary for safety or if he decides the defendant is “disruptive.” Evidence can be presented in secret, without the knowledge of the defense and without giving the defense a chance to examine that evidence, if the judge finds that evidence “reliable.” And during the trial, the prosecution can at any time assert a “national security privilege” that would stop “the examination of any witness” if that witness shows signs of discussing sensitive security matters. This provision can easily be used to exclude any potential defense witness who might “breach national security” with their testimony. Author and investigative reporter Robert Parry writes, “In effect, what the new law appears to do is to create a parallel ‘star chamber’ system for the prosecution, imprisonment, and elimination of enemies of the state, whether those enemies are foreign or domestic.” (Parry 10/19/2006)
Appeals - Guilty verdicts are automatically appealed to a Court of Military Commission Review, consisting of three appellate military justices. The DC Circuit Court of Appeals has extremely limited authority of review of the commissions; even its authority to judge whether a decision is consistent with the Constitution is limited “to the extent [that the Constitution is] applicable.”
Types of Crimes - Twenty-eight specific crimes fall under the rubric of the military commissions, including conspiracy (not a traditional war crime), murder of protected persons, murder in violation of the bill of war, hostage-taking, torture, cruel or inhuman treatment, mutilation or maiming, rape, sexual abuse or assault, hijacking, terrorism, providing material support for terrorism, and spying. (Mariner 10/9/2006)
CIA Abuses - The MCA, responding to the recent Supreme Court decision of Hamdan v. Rumsfeld (see June 30, 2006) that found the CIA’s secret detention program and abusive interrogation practices illegal, redefines and amends the law to make all but the most pernicious interrogation practices, even those defined as torture by the War Crimes Act and the Geneva Conventions, legal. The MCA actually rules that the Geneva Conventions are all but unenforceable in US courts. It also provides retroactive protection under the law to all actions as far back as November 1997. Under the MCA, practices such as waterboarding, stress positioning, and sleep deprivation cannot be construed as torture. (Mariner 10/9/2006) The MCA even states that rape as part of interrogations cannot be construed as torture unless the intent of the rapist to torture his victim can be proven, a standard rejected by international law. The MCA provides such a narrow definition of coercion and sexual abuse that most of the crimes perpetrated at Abu Ghraib are now legal. (Goodman 10/4/2006) Although the MCA seems to cover detainee abuse for all US agencies, including the CIA, Bush says during the signing of the bill, “This bill will allow the Central Intelligence Agency to continue its program for questioning key terrorist leaders and operatives.” International law expert Scott Horton will note, “The administration wanted these prohibitions on the military and not on the CIA, but it did not work out that way.” Apparently Bush intends to construe the law to exempt the CIA from its restrictions, such as they are, on torture and abuse of prisoners. (Benjamin 5/22/2007)
No Habeas Corpus Rights - Under the MCA, enemy combatants no longer have the right to file suit under the habeas corpus provision of US law. This means that they cannot challenge the legality of their detention, or raise claims of torture and mistreatment. Even detainees who have been released can never file suit to seek redress for their treatment while in US captivity. (Mariner 10/25/2006)
Retroactive Immunity - The administration added a provision to the MCA that rewrote the War Crimes Act retroactively to November 26, 1997, making any offenses considered war crimes before the MCA is adopted no longer punishable under US law. Former Nixon White House counsel John Dean will write in 2007 that the only reason he can fathom for the change is to protect administration officials—perhaps including President Bush himself—from any future prosecutions as war criminals. Dean will note that if the administration actually believes in the inherent and indisputable powers of the presidency, as it has long averred, then it would not worry about any such criminal liability. (Dean 2007, pp. 239-240)

John Yoo, a former Justice Department official, celebrates the passage of the Military Commissions Act (see October 17, 2006). Yoo writes that Congress has ordered “the courts, in effect, to get out of the war on terror.” The bill is not so much a victory for the presidency, Yoo writes, as it is a loss for the judiciary, a “stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world.” It supersedes the Court’s ruling in Hamdan v. Rumsfeld (see June 30, 2006), which Yoo calls “an unprecedented attempt by the court to rewrite the law of war and intrude into war policy… [a] stunning power grab.” Now, he writes: “Congress and the president did not take the court’s power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court’s habeas powers in wartime because it disagreed with its decisions. The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.” Yoo had previously authored numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002). (Yoo 10/19/2006)

The cover of the Review, depicting a Native American displaying a scalp.The cover of the Review, depicting a Native American displaying a scalp. [Source: Dartmouth Review via Huffington Post]The Dartmouth Review, a conservative weekly student newspaper funded by off-campus right-wing sources (see 1980), publishes its latest edition; the cover depicts a Native American as what Indian Country Today later describes as a “crazed ‘savage’ holding up a scalp.” The cover headline: “The Natives Are Getting Restless”; the story ridicules Native American students for protesting a recent spate of anti-Native incidents on campus. Dartmouth College was founded in 1769 as a school for Native Americans, and has a long history of supporting Native American causes; in light of its history, the local and national Native American communities have been dismayed in recent years by what they call the anti-Indian sentiments espoused by the Review and other Dartmouth students. The National Congress of American Indians (NCAI) joins with the student organization Native Americans at Dartmouth (NAD) to ask college administrators to address the recent string of “culturally insensitive, biased, and racist” events that they say have created a hostile campus environment at the school. “Colleges and universities are places where diversity and tolerance should foster productive, inclusive, and thriving intellectual communities,” says NCAI President Joe Garcia. “When cartoonization, mockery, and insensitivity of Native peoples, cultures, and traditions persist on college campuses, Native students are at a unique disadvantage in that intellectual community. NCAI joins NAD, [Dartmouth] President James Wright, and the broader Dartmouth community in condemning the recent series of biased incidents at the college, and stands with NAD in its efforts at combating bias in your community.” In recent months, Review staffers and Dartmouth students have orchestrated a number of events that Native Americans call racist and intolerant, including the distribution of homecoming shirts depicting a knight performing a sex act on an American Indian caricature, and the physical disruption by fraternity pledges of an American Indian drumming circle. The publication of the Review with its offensive cover sends the Native American community, and its supporters, into new levels of outrage, with Indian Country Today noting that the illustration of the “savage” has often been used by anti-Native American organizations. Over 500 students, faculty, and administrators take part in a demonstration supporting the Native American community. In response, the Review editor, Daniel Linsalata, calls the cover “hyperbolic” and “tongue-in-cheek,” and says that while he “regret[s]” that the cover “may have” offended some, he stands behind “the editorial content” of the edition. The remainder of his response attacks NAD, and argues that the cover is appropriate to the discussion: “The accusation that this cover was maliciously designed as a wantonly racist attack on Native Americans is patently false,” he says. Wright issues a statement apologizing for the racial slur. Four days after Linsalata’s response, editors Nicholas Desai and Emily Ghods-Esfahani write that the cover was “a mistake” that “distracted attention from the serious journalism the Dartmouth Review has been publishing.” (Linsalata 12/2/2006; Dartmouth Review 12/6/2006; Toensing 12/15/2006)

Silvestre Reyes.Silvestre Reyes. [Source: Foreign Policy (.com)]Representative Nancy Pelosi (D-CA), slated to become the new speaker of the House when the Democrats take over leadership of the House in January 2007, names Silvestre Reyes (D-TX) as the chairman of the House Intelligence Committee. Reyes, a former soldier and Border Patrol chief before being elected to Congress, is named to the chairmanship over two other Intelligence Committee Democrats, Jane Harman (D-CA) and Alcee Hastings (D-FL), both of whom outrank him on the committee. Generally an advocate for the military, Reyes supports withdrawing from Iraq, and voted against the original war resolution. He has accused the Bush administration of using “cherry-picked” and “manipulated” intelligence to justify invading Iraq. He is also a strong critic of the Bush administration’s warrantless wiretapping program (see December 15, 2005). (Gamboa 12/2/2006) Evidence will later show that Harman may have improperly accepted assistance from an Israeli agent, who promised to lobby Pelosi on Harman’s behalf for the chairmanship (see October 2005 and April 19, 2009).

Roger Ailes, the founder and chairman of Fox News (see October 7, 1996), makes a joke to an audience of news executives: “It is true that Barack Obama is on the move,” he says. “I don’t know if it’s true that President Bush called [Pakistani President Pervez] Musharraf and said, ‘Why can’t we catch this guy?’” The joke is a deliberate conflation between the names of presidential candidate Barack Obama (D-IL) and Osama bin Laden. Ailes has Steve Doocy and the other hosts of his network’s morning news show Fox and Friends begin making similar jokes. Fox insiders will later note that while the banter between Doocy, Brian Kilmeade, and Gretchen Carlson appears to be mostly ad-libbed, it is actually highly structured; Ailes uses the show as one of the primary vehicles to get his daily message into what reporter Tim Dickinson will call “the media bloodstream.” Ailes meets with Doocy, Kilmeade, and Carlson every day before the 6:00 a.m. start; a former Fox News deputy will later say: “Prior to broadcast, Steve Doocy, Gretchen Carlson—that gang—they meet with Roger. And Roger gives them the spin.” Doocy is the first Fox News figure to publicly state that Obama attended a radical Islamist madrassa as a child, a falsification that begins circulating on the Internet around this same time (see October 1, 2007). (Sherman 5/22/2011)

Attorney General Alberto Gonzales sends a letter to the Senate Judiciary Committee informing it that the lawsuit against the administration’s warrantless wiretapping program (see August 17, 2006) is moot—the National Security Agency will now operate under the aegis of the Foreign Intelligence Surveillance Court (FISC) in its wiretaps. One of the FISC judges, Gonzales writes, has issued an “innovative” and “complex” order that allows the NSA to continue doing what it had been doing with the overall approval of the court, or at least the approval of the single FISC judge. Gonzales does not go into detail about the judge’s ruling, but the administration intensifies its attack on the lawsuit, asking an appeals court to set the previous ruling aside in light of the new FISC protocol, and even to erase the ruling from judicial history as a matter of “public interest.” The appeals court votes 2-1 to set aside the previous ruling; the majority opinion finds that the state secrets privilege prevents the courts from learning whether the plaintiffs in the case had the standing to sue. (Savage 2007, pp. 207)

Conservative radio host Rush Limbaugh tells his listeners that professional football games often look like fights between two African-American street gangs. Discussing a recent National Football League (NFL) game which featured some apparently objectionable celebrating by players after scoring a touchdown, Limbaugh says that such “over the top” celebrations are sparked by “cultural” differences between black and white players. “There’s something culturally wrong that is leading to all this… classless” behavior, he says, and continues: “Look, let me put it to you this way: the NFL all too often looks like a game between the Bloods and the Crips without any weapons. There, I said it.” (Media Matters 10/12/2009) Two years later, Limbaugh will address his comment on his broadcast. He will fail to apologize for the remark, and will say instead: “It was not racial. Bloods and Crips makes it look racial. But the way I chose to describe it. I could have perhaps chosen a different term.” Limbaugh claims that his remark was taken “out of context” by the news media, and cites the “hypocrisy” of the media in reporting his comments as possibly racially offensive. (Media Matters 10/14/2009) Limbaugh will be thwarted in his 2009 attempt to buy the St. Louis Rams NFL franchise (see October 15, 2009) because of his racially inflammatory remarks against black football players, including this one and a 2003 slur involving African-American quarterback Donovan McNabb (see September 28 - October 2, 2003). Indianapolis Colts owner Jim Irsay will tell other owners, “When there are comments that have been made that are inappropriate, incendiary, and insensitive… our words do damage, and it’s something that we don’t need.” NFL commissioner Roger Goodell will call Limbaugh’s comments “divisive” and something that cannot be tolerated from an NFL owner. (New York Post 10/13/2009)

Conservative radio host Rush Limbaugh calls Senator Barack Obama (D-IL) and actress Halle Berry “Halfrican Americans.” According to progressive media watchdog organization Media Matters, Limbaugh, discussing Obama’s nascent presidential candidacy, says, “Barack Obama has picked up another endorsement: Halfrican American actress Halle Berry.” Limbaugh then says, “‘As a Halfrican American, I am honored to have Ms. Berry’s support, as well as the support of other Halfrican Americans,’ Obama said.” Limbaugh later concedes that Obama “didn’t say it.” Limbaugh tells his audience that Obama “is the son of a white mother from Kansas and a black father from Kenya.” (Media Matters 1/24/2007)

The Bush administration confirms that it believes US citizens can be designated as “enemy combatants” under the Military Commissions Act (MCA—see October 17, 2006). The confirmation comes during the trial of Ali Saleh Kahlah al-Marri, a Qatari and the only person on the American mainland being held as an enemy combatant. Al-Marri, currently held at the Charleston, South Carolina Naval brig, is a legal US resident accused of being a sleeper agent for al-Qaeda (see September 10, 2001). He was arrested in December 2001, while living with his family and studying computer science at Bradley University in Illinois. Al-Marri is charged, not with any direct terrorist activities, but with credit card fraud and lying to federal agents. He is challenging his indefinite detention in federal court, and the government is using the MCA to argue that al-Marri has no status in the courts because of his designation as an enemy combatant. One of the appellate court judges, Roger Gregory, asks Justice Department lawyer David Salmons, “What would prevent you from plucking up anyone and saying, ‘You are an enemy combatant?’” Salmons responds that the government can do just that, without interference from the courts, and adds, “A citizen, no less than an alien, can be an enemy combatant.” Gregory and the second of the three appellate judges, Diana Gribbon Motz, seem uncomfortable with the law’s provisions that the US judiciary has no role in such designations. When Motz asks Salmons about the difference between nations making war and individuals committing acts of terrorism, Salmons retorts with a familiar, and long-disputed, argument that the US Congress gave the government the right to detain terrorist suspects without charge or recourse to the judiciary when it granted the administration the right to use military force against terrorists after the 9/11 attacks (see September 14-18, 2001).
Theoretically Declaring War on PETA - Motz is skeptical of the argument, and asks a series of hypothetical questions about just what organizations or individuals President Bush could designate as enemy combatants. Using the animal rights group People for the Ethical Treatment of Animals (PETA) as an example, Motz asks, “Could the president declare war on PETA?” Salmons says the question is unrealistic, but refuses to say that Bush could not do so if he chose. The Bush administration is careful in its use of the enemy combatant designation, Salmons says, therefore, “The representative of PETA can sleep well at night.” (Liptak 2/2/2007)
Ignoring Constitutional Concept of 'Inalienable Rights' - Author and investigative journalist Robert Parry notes that in the al-Marri case, the Bush administration is arguing against the concept of “inalienable,” or “unalienable,” rights as granted by the Constitution and the Bill of Rights. According to the administration, as long as the US is embroiled in what it calls the “war on terror,” Bush can use his “plenary,” or unlimited, executive powers to essentially waive laws and ignore Constitutional rights if he so chooses. Parry writes that “since the ‘war on terror’ will go on indefinitely and since the ‘battlefield’ is everywhere, Bush is asserting the president’s right to do whatever he wants to whomever he wants wherever the person might be, virtually forever.” Parry concludes, “The Justice Department’s arguments in the [al-]Marri case underscore that Bush still sees himself as a modern-day version of the absolute monarch who gets to decide which rights and freedoms his subjects can enjoy and which ones will be denied.” (Parry 2/3/2007)

Artist’s sketch of Tim Russert testifying in the Libby trial.Artist’s sketch of Tim Russert testifying in the Libby trial. [Source: Art Lien / CourtArtist (.com)]NBC Washington bureau chief Tim Russert testifies in the trial of Lewis “Scooter” Libby (see January 16-23, 2007), following almost three days of videotaped testimony from Libby (see February 7, 2007). Russert’s testimony is virtually identical to statements he previously made to an FBI investigator (see November 24, 2003) and to the Plame Wilson grand jury (see August 7, 2004).
Never Discussed Plame Wilson with Libby - Questioned by prosecutor Patrick Fitzgerald, Russert contradicts Libby’s 2004 testimony, where Libby said he learned of CIA officer Valerie Plame Wilson’s identity from Russert in July 2003 (see March 5, 2004 and March 24, 2004). Russert says that in July 2003 he spoke with Libby, who complained about MSNBC news anchor Chris Matthews’s coverage of the Iraq war (see July 10 or 11, 2003). Libby testified that at the end of that phone call, Russert broached the subject of war critic Joseph Wilson and told him that Wilson’s wife worked for the CIA, saying, “[A]ll the reporters know” that Plame Wilson is a CIA officer. Russert tells the jury: “That would be impossible. I didn’t know who that person was until several days later.” He adds: “If he had told me [Plame Wilson’s identity], I would have asked him how he knew that, why he knew that, what is the relevance of that. And since [it was] a national security issue, my superiors [would] try to pursue it.”
Cross-Examination Focuses on Faulty Recollections - Libby’s lawyer, Theodore Wells, is skeptical of Russert’s denial. “You have the chief of staff of the vice president of the United States on the telephone and you don’t ask him one question about it?” he asks. “As a newsperson who’s known for being aggressive and going after the facts, you wouldn’t have asked him about the biggest stories in the world that week?” Russert replies, “What happened is exactly what I told you.” Wells cites a transcript of Russert’s initial testimony before the FBI, in which he said he could not rule out discussing Plame Wilson with Libby. Russert says he doesn’t believe that is what he told the FBI. Wells asks, “Did you disclose in the affidavit to the court that you had already disclosed the contents of your conversation with Mr. Libby?” Russert attempts to answer, saying, “As I’ve said, sir…” but Wells cuts him off, saying, “It’s a yes or no question.” Russert responds, “I’d like to answer it to the best of my ability.” Wells says: “This is a very simple question. Either it’s in the affidavit or it’s not. Did you disclose to the court that you had already communicated to the FBI the fact that you had communicated with Mr. Libby?” Russert answers, “No” (see Late February or Early March, 2004). Wells attempts to raise questions about Russert’s ethics and credibility, and implies that Russert wanted to see Libby face charges. In follow-up questioning, Fitzgerald asks Russert, “Did you take joy in Mr. Libby’s indictment?” Russert replies: “No, not at all. And I don’t take joy in being here” in the courtroom as a witness. During the second day of Russert’s testimony, defense lawyers ask why Russert told the FBI about his conversation with Libby, but said he would not testify if subpoenaed; Russert says he viewed the FBI conversation and the subpoena differently. During redirect, Fitzgerald notes that during Libby’s grand jury testimony, Libby claimed that he had indeed learned of Plame Wilson’s identity from his then-boss, Vice President Dick Cheney, but had forgotten about it, and when Russert told him about Plame Wilson’s CIA status, it was as if it were new information to him (see February 6, 2007). (FireDogLake 2/7/2007; FireDogLake 2/7/2007; FireDogLake 2/7/2007; FireDogLake 2/7/2007; FireDogLake 2/7/2007; FireDogLake 2/7/2007; Courson 2/8/2007; Lewis 2/9/2007; Apuzzo 2/9/2007; MSNBC 2/12/2007; MSNBC 2/21/2007) The Associated Press writes: “Wells wants to cast Russert as someone who cannot be believed, who publicly championed the sanctity of off-the-record conversations but privately revealed that information to investigators. Russert said he viewed the FBI conversation and testimony to prosecutors differently.” (Apuzzo 2/9/2007)
Potential Mistrial Averted - The jurors are not supposed to read about the trial in the press or watch television coverage of it; resultingly, they are provided newspapers with the pertinent information scissored out. As the jurors enter the courtroom for Russert’s second day of testimony, Judge Reggie Walton notes that they were given newspapers with a Washington Post article, headlined “Tim Russert on the Uncomfortable Side of a Question,” unredacted. A juror brought the newspaper to the attention of the marshals immediately upon receipt of it, and no juror admits to having read it. Walton rules that no harm has been done, and a potential mistrial is averted. (FireDogLake 2/7/2007)

FireDogLake blogger Jane Hamsher, writing for her blog’s coverage of the Libby trial.FireDogLake blogger Jane Hamsher, writing for her blog’s coverage of the Libby trial. [Source: Michael Temchine / New York Times]The New York Times publishes a profile of some of the bloggers covering the Lewis Libby trial. The article, by Times reporter Scott Shane, focuses on the team of six writers and researchers who work on a volunteer basis for FireDogLake (FDL), a liberal blog owned by movie producer and author Jane Hamsher. According to Shane, “FireDogLake has offered intensive trial coverage, using some six contributors in rotation,” including “a former prosecutor [Christy Hardin Smith], a current defense lawyer [Jeralyn Merritt, who also writes for her own blog, TalkLeft], a Ph.D. business consultant [Marcy Wheeler, who has written a book, Anatomy of Deceit, on the subject],” a blogger who has covered the issue since Valerie Plame Wilson’s outing (the pseudonymous “Swopa”), an acknowleged expert on the Iraq/Niger uranium claims (the pseudonymous “eRiposte”), and Hamsher, “all of whom lodge at a Washington apartment rented for the duration of the trial.” Their work is so intensive and the bloggers so well-versed in the intricacies of the trial and its surrounding issues that “[m]any mainstream journalists use [FDL’s live coverage] to check on the trial.”
'Coming of Age' for Bloggers - Shane writes: “For blogs, the Libby trial marks a courthouse coming of age. It is the first federal case for which independent bloggers have been given official credentials along with reporters from the traditional news media” (see Early January, 2007). Robert A. Cox of the Media Bloggers Association says, “My goal is to get judges to think of bloggers as citizen journalists who should get the same protections as other journalists get.” Left-leaning bloggers such as those from FDL routinely disparage Libby and other Bush administration members in their writings, Shane notes, while right-wing blogs covering the trial, such as American Thinker, have targeted prosecution witnesses such as Tim Russert (see February 7-8, 2007) for their criticism. Sheldon Snook, the court official in charge of the news media, says the decision to admit bloggers (five to 10 out of the 100 or so reporters present on busy trial days) has worked out well. Snook tells Shane, “It seems they can provide legal analysis and a level of detail that might not be of interest to the general public but certainly has an audience.” Shane observes that “the Libby trial bloggers are a throwback to a journalistic style of decades ago, when many reporters made no pretense of political neutrality. Compared with the sober, neutral drudges of the establishment press, the bloggers are class clowns and crusaders, satirists and scolds.” Wheeler says covering the trial alongside mainstream reporters has confirmed some of her skepticism about mainstream journalism. “It’s shown me the degree to which journalists work together to define the story,” she says. “[O]nce the narrative is set on a story, there’s no deviating from it.” Hamsher, who is battling breast cancer, says of blogging, “There’s a snarky, get-under-the-surface-of-things quality to it that’s really me.” (The Times later notes that the FDL and other bloggers are not the first to cover a federal trial; anti-tobacco activist Gene Borio covered the trial of the federal government’s lawsuit against the tobacco industry in 2004.) (Marcy Wheeler 2/8/2007; Shane 2/15/2007)
Countered 'Involved' Mainstream Media - In a contemporaneous interview with US News and World Report, Hamsher says of the mainstream coverage: “The media was having difficulty covering it because they were so involved in it. When the investigation started, Karl Rove’s attorney start[ed] putting out all this stuff. And every day the story would change and the blogosphere would document that. We had thousands of people showing up at our site and pointing out that the stories were never consistent. This story had so much information, and so many articles were written that it enabled the blogosphere to take in all of this information. And a cadre of professional people—not kids in their underwear—came together, compared notes, and developed a narrative of the story that was a pushback to the one that was being generated by the powers that be.… Our work on this particular topic has done a lot to defeat the notion that bloggers are fact free.” (Christy Hardin Smith 2/15/2007) Salon’s progressive blogger Glenn Greenwald calls FDL’s trial coverage “intense, comprehensive, and superb.… [T]hey have produced coverage of this clearly significant event—one which has provided rare insight into the inner workings of the Beltway political and journalistic elite—that simply never is, and perhaps cannot be, matched by even our largest national media outlets.” He notes that even conservative news outlets such as the National Review have relied on FDL’s “liveblogging” of the trial for their reporting. (Greenwald 2/15/2007) Shortly before the article comes out, Wheeler posts: “[T]he importance of having this story be told from a blogger’s perspective… is because there is so much about it the mainstream media cannot comfortably report. This story strikes at the core reasons why there are bloggers, why so many readers and writers have decided to invest their time in citizen driven media.” (Marcy Wheeler 2/8/2007)
Presiding Judge Treats Bloggers as Professionals - Smith writes: “For the record, Judge Walton’s entire staff and all the folks at the courthouse have been wonderful throughout the entire process. From the first day forward, our whole team of bloggers were treated like every other professional covering the case—there was no distinction made, no patronizing attitude, just the same treatment for all of us. The amount of work that has gone into covering this case has been astronomical—the live blogging, the courtroom observations, the late night analysis, all the IMs [instant messages] and phone calls to cross-check details—you name it. But so worth it, still, to get the entire story out and not just blurbs and bits. And I cannot thank Judge Walton and his staff enough for giving us this opportunity. Truly.”
Error in Reporting Corrected - Smith corrects an error in Shane’s reporting, noting that the Media Bloggers Association did not negotiate their media passes to gain admittance to the courtroom; that was done largely by Hamsher and the other FDL contributors, with assistance from author and fellow blogger Arianna Huffington. (Christy Hardin Smith 2/15/2007)

Media responses to the closing arguments in the Libby trial (see 9:00 a.m. February 20, 2007, 11:00 a.m. February 20, 2007, and 3:00 p.m. February 20, 2007) are strong and varied.
'Strongest Arguments Yet' of Cheney's Complicity - New York Sun reporter Josh Gerstein writes that prosecutor Patrick Fitzgerald’s “explosive” statements were his “strongest arguments yet” that Vice President Dick Cheney directed former chief of staff Lewis Libby to out CIA official Valerie Plame Wilson. Libby was “not supposed to be talking to other people,” Fitzgerald said. “The only person he told is the vice president.… Think about that.” (Gerstein 2/21/2007)
Fitzgerald Put 'Vice President on Trial' - Newsweek reporter Michael Isikoff writes, “Fitzgerald pretty much made it clear to the jury that Libby, in the prosecution’s mind, was protecting the vice president of the United States.” Tom DeFrank of the New York Daily News adds: “I think Fitzgerald and his fellow prosecutors put the vice president on trial, even though he was not charged with anything. But he was very much front and center in this trial from start to finish.” (Froomkin 2/21/2007)
Fitzgerald 'Sinister,' 'Overcaffeinated'; Wells 'Erratic' - Conservative columnist Byron York is somewhat taken aback at Fitzgerald’s focus on Cheney, calling Fitzgerald “quite sinister” in his statements about Cheney’s apparent complicity in the leak. York sums up the two sides’ arguments and presentational styles. He calls both sides “uneven,” and says that defense attorney Theodore Wells’s performance “was erratic, sometimes appearing to defend his own honor more than his client’s, and sometimes brilliantly dismantling the credibility of key prosecution witnesses.” York writes that Fitzgerald “seemed overcaffeinated and overreaching, perhaps overwhelming the jury with the minutiae of the case.” He concludes, “How their closing summations will play with jurors is anybody’s guess.” (York 2/21/2007)
Praise for Wells - The Washington Post’s Linton Weeks is more complimentary of Well’s closing statement. Weeks’s analysis of Wells’s close is similar to the glowing profile published by the New York Times earlier in the trial (see February 10, 2007). He portrays Wells as “tall, athletic, mustachioed—like a fighter imaging the bout to come,” and possessed of “an inner toughness of someone who will use any combination of punches to win big.” He notes that Wells paused during the proceedings to check on his elderly mother, watching her son from a wheelchair in the courtroom aisle. Though Weeks writes that Wells had “moments [that] seemed out of sync,” hurrying through a PowerPoint slide presentation, “[a]t other times, he was impressive, trying to convince the jury that the prosecution was attempting to ruin Libby based on a few conversations with reporters.” Weeks quotes one of Wells’s colleagues, Washington lawyer Stanley Brand, as saying Wells “has a wonderful demeanor… a master tactician… a bulldog, but in a gentle way.” Brand calls Wells “one of the five best trial lawyers in the country.” Weeks then spins an admiring biography of the “tough defense attorney who has mastered the balance between easygoing and hard-charging,” and uses Wells’s high school and college football career upon which to hang his final metaphor: “There in the middle of the courtroom, Wells was playing center again, helping call the plays and protecting the guy with the ball. Laughing in the beginning, crying in the end.” (Weeks 2/21/2007)
Sincere and Insincere Emotions - Author Marcy Wheeler, writing for the blog FireDogLake (see February 15, 2007), says that assistant prosecutor Peter Zeidenberg baited Wells into going into a sincere rage at the beginning of his argument. In the first portion of the prosecution’s close, Zeidenberg told the jury that Wells had not proven the White House conspiracy he alleged, and, Wheeler writes, Wells spent the first 20 minutes of his closing argument defending his trial strategy. “This was real rage,” she writes, “but it was rage in the service of Ted Wells, not rage in the service of Scooter Libby.” By goading Wells into losing his composure and defending his own actions, Wheeler writes, Wells was forced to rush his climactic argument. Wheeler says that Wells “really does have a schtick, one that the journalists who have seen him before all recognize. He finishes the rational part of his case. Then he spends the last 20 minutes or so summoning rage for his client. He brings all the emotion summoned for his client to a crescendo. And then he weeps, demonstrating clearly to the jury how deeply he believes that his client has been wronged.” But because Wells wasted the first 20 minutes defending his own actions, he “had no time to get into character, and he went immediately from a rushed but rational argument about memory into his emotional appeal.… [C]ompared to the real rage Wells had shown earlier in the day, it looked fake. Utterly, completely fake. Because Wells reacted to Zeidenberg’s barbs, he showed the jury true emotion that made all his elaborate schtick—the thing that Wells does best, normally—look like an act.” Moreover, Fitzgerald was able to mock the outrage that Wheeler believes to be “schtick” (see 3:00 p.m. February 20, 2007) all the more effectively because he almost never raised his voice or displayed any passion throughout the trial. (Marcy Wheeler 2/21/2007)
Facts vs. Emotion - Sidney Blumenthal, a former Clinton administration adviser who has written a book critical of the Bush administration, writes that the prosecution depended largely on a structure of facts and evidence, while the defense relied much more on emotional appeals to the jury. He writes, “[T]he final argument on behalf of Scooter Libby was Libby’s last disinformation campaign.” Of the defense’s attacks on the credibility of news reports and the journalists who make them, Blumenthal writes: “This extraordinary defense—that nothing in any newspaper can be considered true—was the reductio ad absurdum of the Bush administration’s use and abuse of the press corps. Having manipulated it to plant stories on weapons of mass destruction to legitimize the Iraq war, Libby, who was centrally involved in those disinformation efforts, was reduced to defending himself on the basis that newspapers cannot be trusted to publish the truth.” Of Fitzgerald’s pronouncement of a “cloud” over Cheney, Blumenthal writes that “Fitzgerald made clear that he believed that Cheney was the one behind the crime for which he was prosecuting Libby. It was Cheney who was the boss, Cheney who gave the orders, and Cheney to whom Libby was the loyal soldier, and it is Cheney for whom Libby is covering up.” (Blumenthal 2/22/2007)

Conservative radio host Rush Limbaugh tells his audience why he believes Democrats support affirmative action, the set of legal guidelines that mandate equitable hiring practives on the basis of race. “I made this point in the early eighties, mid-eighties when this all started,” he says. “Affirmative action is about making sure that the race wars never end.” Authors Kathleen Hall Jamieson and Joseph N. Cappella, in their book Echo Chamber, will note that Limbaugh’s audience, like those of most conservative pundits and talk shows, is overwhelmingly white. (Jamieson and Cappella 2008, pp. 102)

Conservative radio host Glenn Beck tells his listeners that because he is American, white, Christian, and conservative, he “can’t win.” “Conservatives get no respect,” he says, and adds: “[I]f you are a white human that loves America and happens to be a Christian, forget about it, Jack. You are the only one that doesn’t have a political action committee for you.… I mean, I was talking about it with my family yesterday. I said, ‘I’m tired of being the least popular person in the world.‘… We’re Americans. Nobody likes Americans. We’re Americans, so the world hates us. But then inside of America, we love America—and that’s becoming more and more unpopular.” Being a Christian “is not popular anymore,” he claims, and says: “I’ve got to find one thing that I agree with the rest of the world on, I guess. I’m tired of being in that group.” For all of Beck’s claims of being unpopular because of his heritage, his faith, and his race, he hosts a daily radio show, an evening program on CNN Headline News, and serves as a commentator on ABC’s Good Morning America. (Media Matters 4/2/2007)

Microsoft logo.Microsoft logo. [Source: Your Logo Collection (.com)]The National Security Agency (NSA) reveals plans to build an enormous new data center in San Antonio, Texas, three months after Microsoft announced plans to build a $550 million data center in the same area. (National Security Agency 4/19/2007) The NSA previously acknowledged building a similar data storage facility in Colorado (see January 30, 2006). Reporter and author James Bamford will later write in his book The Shadow Factory that “[t]he timing of the move was interesting,” because the NSA had leased a building in San Antonio in 2005, but had not done anything further. The NSA only announces plans to move forward with the data center after Microsoft revealed plans to build a 470,000 square foot cloud data center that would handle Internet search data, emails, and instant messages. Bamford will quote Bexar County judge Nelson Wolff’s statement to the San Antonio Express-News, “We told [the NSA] we were going to get Microsoft, and that really opened up their eyes,” and write, “For an agency heavily involved in data harvesting, there were many advantages to having their miners next door to the mother lode of data centers” (see 1997, February 27, 2000, February 2001), Spring 2001, April 4, 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, and December 15, 2005). Microsoft’s operation will be largely automated and employ only 75 people. In contrast, the NSA’s facility is to be the same size, but employ 1,500. Bamford will write that this is “far more than was needed to babysit a warehouse of routers and servers but enough to analyze the data passing across them.” (Data Center Knowledge 1/19/2007; San Antonio Express-News 4/18/2007; Bamford 2008, pp. 317-318) Former senior AT&T technician and warrantless surveillance whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) will reference Bamford’s book and agree that this “suggests a massive data mining operation.” (Klein 2009, pp. 41)

Eric Lichtblau.Eric Lichtblau. [Source: PBS]Jack Goldsmith, the former head of the Justice Department’s Office of Legal Counsel (see October 6, 2003 and June 17, 2004), is subpoenaed to testify in the Justice Department’s investigation of the leaks that resulted in the New York Times’s dramatic disclosure of the NSA domestic wiretapping program (see December 15, 2005). Goldsmith had spoken to one of the two Times reporters, Eric Lichtblau, in October 2004, three months after his resignation from the OLC, but lied to Lichtblau, saying he knew nothing of the program. He immediately alerted his former boss, Deputy Attorney General James Comey, of the interview.
'Stunned' By Subpoena - In his September 2007 book The Terror Presidency, Goldsmith will recall being “stunned” at the subpoena, though the two FBI agents who give him the subpoena—in public—say that they don’t suspect him as the source of the leak. Goldsmith later recalls, “What angered me most about the subpoena I received on that wet day in Cambridge was not the expense of lawyers or a possible perjury trap, but rather the fact that it was Alberto Gonzales’s Justice Department that had issued it. As [the two FBI agents] knew, I had spent hundreds of very difficult hours at OLC, in the face of extraordinary White House resistance, trying to clean up the legal mess that then-White House Counsel Gonzales, David Addington, John Yoo, and others had created in designing the foundations of the Terrorist Surveillance Program. It seemed rich beyond my comprehension for a Gonzales-led Department of Justice to be pursuing me for possibly illegal actions in connection with the Terrorist Surveillance Program….”
Supported Surveillance of Terrorism - Goldsmith will continue, “I was not opposed to the leak investigation itself or to vigorous surveillance of terrorists. I agreed with President Bush that the revelations by [James] Risen and Lichtblau had alerted our enemies, put our citizens at risk, and done ‘great harm’ to the nation. I hoped the FBI would find and punish the leakers, and I had spent many hours trying to help them do so. I also shared many of the White House’s concerns with the Foreign Intelligence Surveillance Act (FISA), the 1978 domestic wiretapping law that required executive officers, on pain of jail, to get a court warrant before wiretapping suspected enemies in the United States. We were at war with terrorists who were armed with disposable cell phones and encrypted e-mails buried in a global multibillion-communications-per-day system. It seemed crazy to require the commander in chief and his subordinates to get a judge’s permission to listen to each communication under a legal regime that was designed before technological revolutions brought us high-speed fiber-optic networks, the public Internet, e-mail, and ten-dollar cell phones. But I deplored the way the White House went about fixing the problem. ‘We’re one bomb away from getting rid of that obnoxious [FISA] court,’ Addington had told me in his typically sarcastic style during a tense White House meeting in February of 2004 (see February 2004). The vice president’s counsel, who was the chief legal architect of the Terrorist Surveillance Program, was singing the White House tune on FISA. He and the vice president had abhorred FISA’s intrusion on presidential power ever since its enactment in 1978. After 9/11 they and other top officials in the administration dealt with FISA the way they dealt with other laws they didn’t like: They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations. My first experience of this strict control, in fact, had come in a 2003 meeting when Addington angrily denied the NSA inspector general’s request to see a copy of OLC’s legal analysis in support of the Terrorist Surveillance Program. Before I arrived in OLC, not even NSA lawyers were allowed to see the Justice Department’s legal analysis of what NSA was doing.”
Difficult to Justify Legally - Goldsmith will write of the difficulties he found in finding legal justifications for the program. “I first encountered the program in 2003-2004, long after it had been integrated into the post-9/11 counterterrorism architecture. Putting it legally aright at that point, without destroying some of the government’s most important counterterrorism tools, was by far the hardest challenge I faced in government. And the whole ordeal could have been avoided.…In 2004, I and others in the Department of Justice had begun the process of working with the FISA court to give the commander in chief much more flexibility in tracking terrorists. From the beginning the administration could have taken these and other steps to ramp up terrorist surveillance in indisputably lawful ways that would have minimized the likelihood of a devastating national security leak. But only if it had been willing to work with the FISA court or Congress. The White House had found it much easier to go it alone, in secret.” (Goldsmith 9/10/2007)

Bush administration officials tell Senate Intelligence Committee members that they will not promise to continue seeking warrants for surveillance on US citizens, as the administration agreed to do in January 2007. They insist that President Bush has the Constitutional authority to decide whether or not to order the NSA to conduct surveillance without warrants if he desires. The secret wiretapping program was revealed to the public just weeks before the agreement (see December 15, 2005), and immediately drew tremendous outcries of criticism from civil libertarians, from lawmakers from all across the political spectrum, and from much of the public. Since the January agreement, the Foreign Intelligence Surveillance Act (FISA) court has issued warrants for domestic wiretaps after being given evidence showing some kind of probable cause to justify the proposed surveillance. Previously, the wiretapping program had ignored the FISA restrictions. Now Bush officials, most notably the new director of national intelligence, Mike McConnell, are saying that Bush has the authority under Article II of the Constitution to order warrantless wiretaps on US citizens.
Invoking Presidential Authority - In Senate testimony on this day, Russ Feingold (D-WI) asks McConnell if he is willing to promise that the administration will no longer ignore the law and the court when monitoring citizens. McConnell replies, “Sir, the president’s authority under Article II is in the Constitution. So if the president chose to exercise Article II authority, that would be the president’s call.” McConnell is echoing previous arguments made by Bush and other officials, who have said that Bush has the power to order wiretaps without court review, both under the Constitution and under the September 2001 Congressional authorization to use military force against al-Qaeda. McConnell says that the administration is conducting surveillance against Americans only with court warrants, and has no plans “that we are formulating or thinking about currently” to resume domestic wiretapping without warrants. “But I’d just highlight,” he adds, “Article II is Article II, so in a different circumstance, I can’t speak for the president what he might decide.” (Risen 5/2/2007) Article II is the section of the Constitution that delineates the powers of the executive branch, and establishes the fundamental “separation of powers” doctrine that governs American democracy. Constitutional expert Steve Mount notes that the “Constitution is deliberately inefficient; the “Separation of Powers devised by the framers of the Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist.” (Mount 1995)
White House Seeking Congressional Authorization - While the administration continues to argue that it has the power to eavesdrop on US citizens without warrants, it also continues to seek Congressional legislation affirming and perhaps expanding that power. The White House justifies that hoped-for legislation by pointing to national security and the war on terrorism, as well as the challenges posed by new communications technologies such as e-mail and wireless communications. White House officials have consistently refused to go into specifics as to what communications gaps they feel need plugging. And they have consistently ignored Congressional requests for information and documents related to the NSA’s domestic spy program, now being called the “Terrorist Surveillance Program” by White House officials and their Republican colleagues. Many Congressional Democrats say they would be reluctant to support any such legislation until they receive the information they have requested. “To this day, we have never been provided the presidential authorization that cleared that program to go or the attorney general-Department of Justice opinions that declared it to be lawful,” says Senator Sheldon Whitehouse (D-RI). “Where’s the transparency as to the presidential authorizations for this closed program? That’s a pretty big ‘we’re not going to tell you’ in this new atmosphere of trust we’re trying to build.” (Risen 5/2/2007)

Former Deputy Attorney General James Comey delivers dramatic testimony before the Senate Judiciary Committee about the March 2004 attempts by then-White House counsel Alberto Gonzales and then-White House chief of staff Andrew Card to pressure a seriously ill John Ashcroft, then the attorney general, to certify the legality of the Bush/NSA domestic wiretapping program (see March 10-12, 2004, Early 2002). Comey testifies that even though he, who at the time has the full authority of the attorney general during Ashcroft’s illness, and Ashcroft both refused to authorize the program due to their belief that the program is illegal, President Bush will certify the program anyway. Only a threatened mass resignation by Ashcroft, Comey, FBI director Robert Mueller, and other senior officials will persuade Bush, weeks later, to make changes in the program that bring it somewhat closer to operating within the law. (Think Progress 5/15/2007; Eggen and Kane 5/16/2007)
Bush Sent Gonzales, Card to Ashcroft's Hospital Room, Comey Believes - Comey says that while he cannot be certain, he believes Gonzales and Card went to Ashcroft’s hospital room on orders from President Bush: “I have some recollection that the call was from the president himself, but I don’t know that for sure,” he tells the committee. His major concern in heading off Gonzales and Card at the hospital, Comey testifies, is that, “given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that.” Comey says he was “stunned” by how forceful Ashcroft was in refusing to comply with Gonzales and Card’s directive to sign the reauthorization.
Gonzales a 'Loyal Bushie' - Committee members are openly contemptuous of Gonzales’s actions, and question his fitness to serve as attorney general. “He’s presided over a Justice Department where being a, quote, loyal Bushie seems to be more important than being a seasoned professional, where what the White House wants is more important than what the law requires or what prudence dictates,” says Charles Schumer (D-NY). Arlen Specter (R-PA) is hardly less critical. “It is the decision of Mr. Gonzales as to whether he stays or goes, but it is hard to see how the Department of Justice can function and perform its important duties with Mr. Gonzales remaining where he is,” Specter says. “And beyond Mr. Gonzales’s decision, it’s a matter for the president as to whether the president will retain the attorney general or not.” (Stout 5/15/2007)
Not a 'Team Player' - Interestingly, President Bush views Comey with disdain because Comey isn’t what Bush calls a “team player;” Bush earlier tagged Comey, who resigned his position in 2005 and who previously tangled with the White House over its embrace of torture for terrorist suspects, with the derisive nickname “Cuomo,” after the former Democratic governor of New York, Mario Cuomo, famous for vacillating over whether to run for the presidency in the 1980s. The White House denies the nickname. (Thomas and Klaidman 1/9/2006) Comey is not popular in the White House in part because of his 2003 appointment of special prosecutor Patrick Fitzgerald to investigate Vice President Dick Cheney’s chief of staff, Lewis “Scooter” Libby, for perjury connected to the outing of CIA agent Valerie Plame Wilson (see Shortly after February 13, 2002). And after the 9/11 attacks, Comey challenged Cheney’s assertions that the use of torture and other “war on terror” policies were legal (see January 9, 2002). Comey says he has been prepared to testify about the Ashcroft hospital visit for three years, but never did until now, because “Nobody ever asked.…I’ve never been in a forum where I was obligated to answer the question. Short of that, it was not something I was going to volunteer.” Card says that his actions at the hospital earned him bureaucratic punishment from Card. After Gonzales became attorney general, Ashcroft’s then-chief of staff, Kyle Sampson, told Comey that Gonzales’s “vision” was to merge the deputy’s office with Gonzales’s own office, stripping Comey of much of his autonomy and reducing him, in essence, to a staff member. Comey refused to cooperate. “You may want to try that with the next deputy attorney general,” Comey told Sampson. “But it’s not going to work with me.” (Ragavan 5/20/2007)

Attorney General Alberto Gonzales comes under fire from members of the Senate Judiciary Committee regarding the National Security Agency’s domestic warrantless wiretapping program (see December 15, 2005. Testimony from the day before by former deputy attorney general James Comey (see May 15, 2007) showed that White House and Justice Department officials were, and still are, deeply divided over the legality and efficacy of the program. But Gonzales has said repeatedly, both under oath before Congress and in other venues, that there is little debate over the NSA surveillance program, and almost all administration officials are unified in support of the program. In February 2006, he told the committee, “There has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations, which I cannot get into.” Gonzales’s veracity has come under question before, and many senators are disinclined to believe his new testimony. Committee Democrats point out that Comey’s testimony flatly contradicts Gonzales’s statements from that February session. A letter from Senators Russ Feingold, Charles Schumer, Edward Kennedy, and Richard Durbin asks Gonzales, “In light of Mr. Comey’s testimony yesterday, do you stand by your 2006 Senate and House testimony, or do you wish to revise it?” And some Senate Republicans are now joining Democrats in calling for Gonzales’s removal. Chuck Hagel (R-NE) says, “The American people deserve an attorney general, the chief law enforcement officer of our country, whose honesty and capability are beyond question. Attorney General Gonzales can no longer meet this standard. He has failed this country. He has lost the moral authority to lead.” White House press secretary Tony Snow says of Hagel’s statement, “We disagree, and the president supports the attorney general.” Hagel joins three other Republican senators, John Sununu, Tom Coburn, and presidential candidate John McCain, and House GOP Conference Chairman Adam Putnam, in calling for Gonzales’s firing. Former Senate Intelligence Commitee chairman Pat Roberts (R-KS) says that Gonzales should consider resigning, a stance echoed by fellow Republican senators Arlen Specter and Gordon Smith. (Kellman 5/17/2007) Gonzales’s defenders say that his testimony to the committee, while legalistic and narrowly focused, is technically accurate, because the NSA program also involves “data mining” of huge electronic databases containing personal information on millions of US citizens, and that program is not exactly the same as the so-called “Terrorist Surveillance Program,” as the NSA’s wiretapping program is now called by White House officials (see Early 2004). But Feingold disagrees. “I’ve had the opportunity to review the classified matters at issue here, and I believe that his testimony was misleading at best.” (Shane and Johnston 7/29/2007)

Conservative radio host Rush Limbaugh, in another of his now-famous broadsides against feminists (whom he routinely calls “femi-Nazis” and characterizes as “anti-male”), says: “I blast feminists because they’re liberal. Feminism is liberal. It screwed women up as I was coming of age in my early twenties.… It changed naturally designed roles and behaviors and basically, they’re trying to change human nature, which they can’t do.” Limbaugh’s “Life Truth No. 24” states that “feminism was established so as to allow unattractive women easier access to society.” Authors Kathleen Hall Jamieson and Joseph N. Cappella, in their book Echo Chamber, will note, “There is apparently no comparable movement to facilitate the social integration of unattractive men.” (Jamieson and Cappella 2008, pp. 103)

Judge Reggie Walton, who presided over the Lewis Libby perjury trial (see March 6, 2007), says in the interest of transparency he will release the more than 150 letters he has received regarding Libby’s upcoming sentencing (see May 25, 2007 and June 5, 2007). He will release the letters after sentence is passed. Many of the letters are from current and former Bush administration officials pleading for leniency on Libby’s behalf. Libby, through his attorney William Jeffress, opposes the letters’ release, saying the letter writers never expected their words to be made public. (CBS News 1/25/2007; Associated Press 5/31/2007) The letters are released after Libby’s sentencing. Former Defense Secretary Donald Rumsfeld wrote of Libby, “I know Mr. Libby to be a patriot, a dedicated public servant, a strong family man, and a tireless, honorable, selfless human being.” Henry Kissinger, the secretary of state in the Nixon administration and an informal Bush administration adviser, wrote: “I would never have associated the actions for which he was convicted with his character. Nor do I believe that they will ever be repeated. Having served in the White House and under pressure, I have seen how difficult it is to recall precisely a particular series of events.” (Roston 6/5/2007) Others who submitted letters include General Peter Pace, former Clinton administration peace negotiator Dennis Ross, and former Bush administration officials Paul Wolfowitz and John Bolton. President Bush and Vice President Dick Cheney did not submit letters on behalf of Libby. (Totenberg 6/5/2007) Jeffress actively solicited letters from Libby’s friends and associates asking Walton to either give Libby a light sentence or no real sentence at all. In Jeffress’s filing asking that the letters remain private, he writes, “Given the extraordinary media scrutiny here, if any case presents the possibility that these letters, once released, would be published on the Internet and their authors discussed, even mocked, by bloggers, it is this case.” Marcy Wheeler, who spearheaded a team of bloggers that provided in-depth coverage of the Libby case (see February 15, 2007), derides Jeffress’s fears of being mocked by bloggers, but says there are far more compelling reasons to release the letters than to discomfit the letter writers. Wheeler notes that a lighter sentence would dissuade Libby from testifying against his former boss, Cheney, who is widely suspected of orchestrating the Plame Wilson exposure. Moreover, some of Libby’s supporters themselves have reason, she writes, “to be thankful that Libby successfully obstructed the investigation” and are anything but neutral. Finally, she writes: “[T]his sentencing, now scheduled for June 5, takes place against the background of the Bush administration’s purge of at least nine US attorneys, in at least one case at the behest of Republicans who complained that the US attorney didn’t file charges against a Democrat before an election. We have every reason to suspect that Bush’s supporters have inappropriately intervened in the administration of justice. Without seeing those letters, how can we be sure the same isn’t happening here?” (Wheeler 5/29/2007)

Wendell Potter, a senior health care executive with the insurance giant Cigna, visits a “health care exposition” in Wise, Virginia, not far from his home town. Potter is shocked at what he sees at the Wise County Fairgrounds. As he will later recall (see July 10, 2009), he assumed he would see booths set up for people to get their blood pressure checked and so forth. What he actually sees is doctors providing a range of care in livestock stalls and tents. Some patients are treated while lying on gurneys, under a rainy sky. “And I saw people lined up, standing in line or sitting in these long, long lines, waiting to get care,” he will later say. “People drove from South Carolina and Georgia and Kentucky, Tennessee—all over the region, because they knew that this was being done. A lot of them heard about it from word of mouth. There could have been people and probably were people that I had grown up with. They could have been people who grew up at the house down the road, in the house down the road from me. And that made it real to me.… It was absolutely stunning. It was like being hit by lightning. It was almost—what country am I in? I just—it just didn’t seem to be a possibility that I was in the United States. It was like a lightning bolt had hit me.” Potter will describe himself as “insulated” from the harsh reality of American health care before visiting the expo. “I had a great job. And I had a terrific office in a high-rise building in Philadelphia. I was insulated. I didn’t really see what was going on. I saw the data. I knew that 47 million people were uninsured, but I didn’t put faces with that number.… [W]hen you’re in the executive offices, when you’re getting prepared for a call with an analyst, in the financial medium, what you think about are the numbers. You don’t think about individual people. You think about the numbers, and whether or not you’re going to meet Wall Street’s expectations. That’s what you think about, at that level. And it helps to think that way. That’s why you—that enables you to stay there, if you don’t really think that you’re talking about and dealing with real human beings.” Potter finds it difficult to reconcile his executive lifestyle with relatives and neighbors being treated in livestock stalls. He will eventually resign his position with Cigna. (PBS 7/10/2009)

Newsweek’s Jonathan Darman reports that Citizens United (CU), a conservative lobbying and advocacy group headed by activist David Bossie, is producing an unflattering documentary on Senator Hillary Clinton (D-NY), the current frontrunner for the Democratic nomination for president in 2008. The title of the story highlights Clinton’s “likability gap,” but the story itself focuses on the “grudge” borne by Bossie and CU against Clinton and the presidency of her husband, Bill Clinton. The documentary is scheduled for release in theaters in the fall of 2007, Darman reports. One of its potential targets is a generation of young voters who know little about the Whitewater and Lewinsky scandals that dogged the Clinton administration. Bossie says, “There’s an enormous market for Hillary Clinton information.” R. Emmett Tyrell Jr., the editor of the American Spectator and the author of numerous books purporting to tell the truth behind the Clinton allegations, says there are “active research teams” working to expose Clinton. “They’re out there,” he says. “I get calls all the time.” Clinton’s campaign says the documentary is “old news” and “cash for rehash.” Darman notes: “For all the charges through the years, none has ever stuck. Arguably the most-investigated woman in contemporary American life moved from tabloid target in the White House to winning a Senate seat in one of the nation’s most contentious states. It’s her resilience and capacity to survive and thrive against all comers that partly fuels the haters’ fury.” However, some voters still harbor distrust and resentment towards Clinton, stemming in part from her reputation as “secretive, controlling, and paranoid,” as Darman characterizes her critics’ feelings towards her, as first lady. Her negative perception polling is remarkably high for a potential presidential candidate. Darman writes: “[T]he real problem many Democratic voters have with Clinton is the sneaking suspicion that with so much of the country against her, she can never win a general election. Clinton’s fate may well come down to her ability to deal with a vexing question: what is it about me that so many people don’t like?” Clinton is, Darman writes, “a comic-book villain for her detractors—a man-eating feminist, they claimed, who allegedly threw lamps at her husband, communed psychically with Eleanor Roosevelt, and lit a White House Christmas tree adorned with sex toys. The narrative of depravity—a tissue of inventions by conservatives—was often hard to follow. Was she, as they imagined her, a secret lesbian who fostered a West Wing culture of rampant homosexuality? Or was she the duplicitous adulteress who slept with former law partner Vincent Foster, ordered his death, and then made it look like a suicide? Disjointed as they may have been, Hillary horror tales soon became big business on talk radio.” But the attacks have not weakened her appreciably, and may have strengthened her as a candidate. (Darman 6/17/2007) The liberal watchdog organization Media Matters notes that Darman fails to alert his readers to what it calls Bossie’s past “slimy tactics” (see May 1998). (Chiachiere and Maloy 6/11/2007) The documentary will not be released until the summer of 2008 (see January 10-16, 2008), and will become the focus of a landmark Supreme Court decision regarding campaign finance (see January 21, 2010).

Former Reagan Justice Department official and constitutional lawyer Bruce Fein and former civil liberties lawyer Glenn Greenwald applaud the recent ruling requiring the government to overturn alleged al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri’s military detention status (see June 11, 2007). Fein writes that the decision “rebuked President Bush’s frightening claim that the Constitution crowned him with power to pluck every American citizen from his home for indefinite detention without trial on suspicion of preparing for acts of international terrorism.” Other terrorist acts, such as the 1995 Oklahoma City bombings (see 8:35 a.m. - 9:02 a.m. April 19, 1995) and the 1993 World Trade Center bombings (see February 26, 1993), “were tried and punished in civilian courts,” Fein notes, adding that Bush bypassed the USA Patriot Act to classify al-Marri as an enemy combatant, although the Patriot Act “provides a specific method for the government to detain aliens affiliated with terrorist organizations who are believed likely to engage in terrorist activity.” Al-Marri was denied that procedure due to his classification as an enemy combatant. (Fein 6/19/2007) Greenwald writes, “How extraordinary it is—how extraordinarily disturbing it is—that we are even debating these issues at all. Although its ultimate resolution is complicated, the question raised by al-Marri is a clear and simple one: Does the president have the power—and/or should he have it—to arrest individuals on US soil and keep them imprisoned for years and years, indefinitely, without charging them with a crime, allowing them access to lawyers or the outside world, and/or providing a meaningful opportunity to contest the validity of the charges? How can that question not answer itself?… Who would possibly believe that an American president has such powers, and more to the point, what kind of a person would want a president to have such powers? That is one of a handful of powers that this country was founded to prevent.” (Greenwald 6/17/2007)

The Supreme Court, ruling in the Wisconsin Right to Life v. Federal Election Commission case, finds that some political advertisements can be exempted from the “electioneering communications” provision of the McCain-Feingold campaign reform act (see March 27, 2002). The case stems from attempts by an anti-abortion advocacy group, Wisconsin Right to Life (WRTL), to run ads asking viewers to contact their senators and urge them to oppose filibusters of judicial nominees. WRTL tried to run its ads during the 30 and 60-day “blackout” periods before the upcoming 2004 elections, but because it accepted corporate contributions and was itself incorporated, the McCain-Feingold restrictions prevented the ads from running. WRTL argued that the ads were not targeting candidates, but were strictly issue-related (see Mid-2004 and After). The case was initially dismissed, but the Supreme Court reversed that decision and remanded the case back to the lower courts. The Federal Election Commission (FEC) argued that the ads were intended to influence US Senate elections in Wisconsin, and thusly should be regulated by McCain-Feingold. A district court disagreed, ruling against the FEC and finding that the ads were “protected speech” (see January 30, 1976), though it limited its findings solely to the WRTL ads and specified that its ruling was not to apply to other cases. The FEC appealed the case to the US Supreme Court, which in a 5-4 decision finds that the district court’s ruling is valid. Chief Justice John Roberts writes the majority opinion, which establishes broad exemptions for advertisements that could be “reasonably” interpreted as being about legislative issues and not directed on behalf of, or against, a particular candidate. As long as “issue ads” do not contain the “functional equivalent” of express advocacy for or against a candidate, the Roberts opinion holds, and the advertisements are legal. The ads involve “core political speech” that is protected by the First Amendment, Roberts finds: “We give the benefit of the doubt to speech, not censorship.” Justice David Souter writes the dissenting opinion. Justices Antonin Scalia and Clarence Thomas write a concurring opinion that joins them with Roberts and the other two conservative justices, but in their concurrence, they say they would overturn the McCain-Feingold law in its entirety. (Geraci 2006 pdf file; Savage 6/26/2007; FindLaw 2011; National Public Radio 2012; Oyez (.org) 7/1/2012) Roberts is careful in the language of his majority opinion, writing that “the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” He does not directly advocate for the overturning of the McCain-Feingold law, but referring to the 2003 McConnell decision that upheld the law (see December 10, 2003), he writes, “We have no occasion to revisit that determination today.” In 2012, reporter Jeffrey Toobin will write of Roberts’s use of the word “today,” “To those who know the language of the Court, the Chief Justice was all but announcing that five justices would soon declare the McCain-Feingold law unconstitutional.” (Toobin 5/21/2012) Toobin is referring to the 2010 Citizens United decision that will overturn most of the law (see January 21, 2010).

Representative Ron Paul, profiled in a New York Times article, answers a question about his connections to the John Birch Society (JBS—see March 10, 1961, 1978-1996, August 4, 2008 and December 2011). “Oh, my goodness, the John Birch Society!” Paul replies in what the reporter calls “mock horror.” “Is that bad? I have a lot of friends in the John Birch Society. They’re generally well educated and they understand the Constitution. I don’t know how many positions they would have that I don’t agree with. Because they’re real strict constitutionalists, they don’t like the war, they’re hard-money people.” (Caldwell 7/22/2007) The JBS is, according to the Southern Poverty Law Center, a prominent right-wing extremist group that has accused a number of lawmakers, including former President Dwight D. Eisenhower, of being “closet Communists,” and promotes “wild conspiracy theories” such as the “international Jewish” conspiracy to control the global economy and the idea that the World War II Holocaust never happened. The JBS has been a pioneer in what an analysis by Political Research Associates (PRA) will call “the encoding of implicit cultural forms of ethnocentric white racism and Christian nationalist antisemitism rather than relying on the white supremacist biological determinism and open loathing of Jews that had typified the old right prior to WWII.” PRA will note, “Throughout its existence, however, the Society has promoted open homophobia and sexism.” (Political Research Associates 2010; Zaitchick 8/17/2010)

Senator John D. Rockefeller (D-WV) disputes Attorney General Alberto Gonzales’s characterization of the March 10, 2004 Congressional briefing (see March 10, 2004) regarding the NSA’s warrantless wiretapping program (see Early 2002) as about other surveillance programs, and not the NSA program now referred to as the Terrorist Surveillance Program (TSP). Gonzales testified earlier today (see July 24, 2007) that the briefing did not cover the NSA program, but Rockefeller says that it did. Rockefeller was at that meeting, then serving as the ranking Democrat on the Senate Intelligence Committee. Rockefeller confirms that the Congressional leaders at the briefing, known colloquially as the “Gang of Eight,” had no idea about the tremendous dispute over the legality of the wiretapping program. He also says, again in contradiction to Gonzales’s testimony, that they were never asked to draft legislation that would make the wiretapping program legal. As to the topic of discussion, Rockefeller says, “As far as I’m concerned, there’s only one” intelligence program. Rockefeller says at the end of the briefing, most of the lawmakers were still unclear about the nature and extent of the program, nor were they clear as to the White House’s plans for the program. “They were not telling us what was really going on,” Rockefeller says. Asked if he believed that Gonzales had purposely misled the Judiciary Committee today, Rockefeller replies, “I would have to say yes.” (Bresnahan 7/24/2007) He calls Gonzales’s testimony “untruthful.” (Johnston and Shane 7/24/2007)
Other Democrats Bolster Rockefeller's Recollections - Other Democrats present at the briefing add their voices to Rockefeller’s. Jane Harman (D-CA), then the ranking member of the House Intelligence Committee, says Gonzales is inaccurate in his characterizations of the briefing, and that the program under discussion could have only been the NSA wiretapping operation. “That doesn’t make any sense to me,” Harman says. The NSA program was “the only program we were ever briefed about.” Harman and Rockefeller both say that this and later briefings about the program were quite limited in scope. “We were briefed on the operational details—period—not the legal underpinnings,” Harman says. (Roll Call 7/25/2007) Harman adds that Gonzales was apparently being deliberately deceptive in trying to characterize the program as something other than the NSA operation. “The program had different parts, but there was only one program,” she says. Gonzales was, she says, “selectively declassifying information to defend his own conduct,” an action Harman calls improper. (Johnston and Shane 7/24/2007) Harman says that Gonzales should not even have revealed that there had been such a classified briefing, especially revealing such a meeting in order to defend his own contradictory testimonies. “He doesn’t have the authority to do that,” she says. (Menaker 7/25/2007)

FBI Director Robert Mueller testifies before the House Judiciary Committee about the NSA’s warrantless wiretapping program (see Early 2002), which many believe to be illegal. Mueller directly contradicts testimony given the day before by Attorney General Alberto Gonzales (see July 24, 2007), where Gonzales claimed that “there has not been any serious disagreement about the program that the president has confirmed.” Mel Watt (D-NC) asks Mueller, “Can you confirm that you had some serious reservations about the warrantless wiretapping program that kind of led up to this?” Mueller replies, “Yes.” Later, Sheila Jackson-Lee (D-TX) asks about the now-notorious visit by Gonzales and then-chief of staff Andrew Card to then-Attorney General John Ashcroft’s hospital room, where they tried to pressure the heavily sedated Ashcroft to reauthorize the program (see March 10-12, 2004). Gonzales testified that he and Card visited Ashcroft to discuss “other intelligence matters,” and not the NSA surveillance program. Jackson-Lee asks, “Did you have an understanding that the conversation was on TSP?” referring to the current moniker of the NSA operation, the “Terrorist Surveillance Program.” Mueller replies, “I had an understanding that the discussion was on an NSA program, yes.” Jackson-Lee says, “I guess we use ‘TSP,’ we use ‘warrantless wiretapping,’ so would I be comfortable in saying that those were the items that were part of the discussion?” Mueller agrees: “The discussion was on a national NSA program that has been much discussed, yes.” (Speaker of the House 7/26/2007; Stout 7/26/2007)

In a letter to Senator Arlen Specter (R-PA), Director of National Intelligence Mike McConnell acknowledges that President Bush “authorized the National Security Agency to undertake various intelligence activities designed to protect the United States from further terrorist attack.” Many of these “intelligence activities,” the nature of which has never been made public, were authorized under the same secret executive order Bush used to authorize the NSA’s domestic warrantless wiretapping program (see Early 2002). McConnell says that the only aspects of the variety of programs that can be acknowledged or discussed are those already revealed by the New York Times in its expose of the NSA warrantless surveillance program (see December 15, 2005). McConnell adds, “It remains the case that the operational details even of the activity acknowledged and described by the President have not been made public and cannot be disclosed without harming national security.” McConnell also acknowledges that the marketing moniker “Terrorist Surveillance Program” was adopted in early 2006, after the revelations of the NSA program hit the media. (Mike McConnell 7/31/2007 pdf file)

FBI agents raid the home of former Justice Department prosecutor Thomas Tamm, who is suspected of leaking information to the New York Times regarding the Bush administration’s warrantless wiretapping program (see Spring 2004 and December 15, 2005). Tamm previously worked in the Justice Department’s Office of Intelligence Policy and Review (OIPR), which oversees surveillance of terrorist and espionage suspects. The FBI agents seize Tamm’s computer as well as those of his three children and a store of personal files. They also take some of his books (including one on famed Watergate whistleblower “Deep Throat” (see May 31, 2005), and even the family’s Christmas card list. Tamm is not home when the raid is staged, so the agents sit his wife and children around the kitchen table and grill them about Tamm’s activities. His oldest son, Terry, will later recall: “They asked me questions like ‘Are there any secret rooms or compartments in the house’? Or did we have a safe? They asked us if any New York Times reporters had been to the house. We had no idea why any of this was happening.” The raid is part of a leak probe ordered by President Bush (see December 30, 2005). James X. Dempsey of the Center for Democracy and Technology calls the decision to stage the raid “amazing,” and says it shows the administration’s misplaced priorities: using FBI agents to track down leakers instead of processing intel warrants to close the gaps. (Newsweek 8/2007; Isikoff 12/22/2008) In late 2008, Tamm will reveal to Newsweek that he is one source for the Times articles (see December 22, 2008). At the time of the raid, his family has no idea that he knows anything about the wiretapping program, or that he has spoken to reporters. (Isikoff 12/22/2008)

Mitch McConnell.Mitch McConnell. [Source: US Senate]President Bush signs the controversial Protect America Act (PAA) into law. The bill, which drastically modifies the Foreign Intelligence Surveillance Act (FISA) of 1978 (see 1978), was sponsored by two Senate Republicans, Mitch McConnell (R-KY) and Christopher Bond (R-MO), but written by the Bush administration’s intelligence advisers. (US Senate 8/5/2007; Nakashima and Warrick 8/5/2007) It passed both houses of Congress with little debate and no hearings (see August 1-4, 2007). “This more or less legalizes the NSA [domestic surveillance] program,” says Kate Martin, director of the Center for National Security Studies. (Risen 8/6/2007) Slate’s Patrick Radden Keefe adds ominously, “The Foreign Intelligence Surveillance Act is now dead, and it’s never coming back.” (Keefe 8/6/2007) The PAA expires in six months, the only real concession Congressional Democrats were able to secure. Though the Bush administration and its allies in Congress insist that the law gives the government “the essential tools it needs” to conduct necessary surveillance of foreign-based terrorists while protecting Americans’ civil liberties, many Democrats and civil liberties organizations say the bill allows the government to wiretap US residents in communication with overseas parties without judiciary or Congressional oversight. Bush calls the bill “a temporary, narrowly focused statute to deal with the most immediate shortcomings in the law” that needs to be expanded and made permanent by subsequent legislation. The administration says that the lack of judiciary oversight in the new law will be adequately covered by “internal bureaucratic controls” at the National Security Agency. (Associated Press 8/5/2007; Nakashima and Warrick 8/5/2007)
Reining in FISA - The PAA allows FISA to return “to its original focus on protecting the rights of Americans, while not acting as an obstacle to conducting foreign intelligence surveillance on foreign targets located overseas.” Before the PAA, the White House says, FISA created unnecessary obstacles in allowing US intelligence to “gain real-time information about the intent of our enemies overseas,” and “diverted scarce resources that would be better spent safeguarding the civil liberties of people in the United States, not foreign terrorists who wish to do us harm.” The PAA no longer requires the government to obtain FISA warrants to monitor “foreign intelligence targets located in foreign countries” who are contacting, or being contacted by, US citizens inside US borders. FISA will continue to review the procedures used by US intelligence officials in monitoring US citizens and foreign contacts by having the attorney general inform the FISA Court of the procedures used by the intelligence community to determine surveillance targets are outside the United States.”
Allows Third Parties to Assist in Surveillance, Grants Immunity - The PAA also allows the director of national intelligence and the attorney general to secure the cooperation of “third parties,” particularly telecommunications firms and phone carriers, to “provide the information, facilities, and assistance necessary to conduct surveillance of foreign intelligence targets located overseas.” It provides these firms with immunity from any civil lawsuits engendered by such cooperation.
Short Term Legislation - The White House says that Congress must pass further legislation to give telecommunications firms permanent and retroactive immunity against civil lawsuits arising from their cooperation with the government’s domestic surveillance program. (White House 8/6/2006)
Temporary Suspension of the Constitution? - Representative Rush Holt (D-NJ), a member of the House Intelligence Committee, says: “I’m not comfortable suspending the Constitution even temporarily. The countries we detest around the world are the ones that spy on their own people. Usually they say they do it for the sake of public safety and security.” (Nakashima and Warrick 8/5/2007)

The American Civil Liberties Union registers bitter disapproval of the newly passed Protect America Act (see August 5, 2007), which it disparagingly labels the “Police America Act.” It writes: “[The act] allows for massive, untargeted collection of international communications without court order or meaningful oversight by either Congress or the courts. It contains virtually no protections for the US end of the phone call or email, leaving decisions about the collection, mining and use of Americans’ private communications up to this administration.” The Attorney General can issue warrants for domestic surveillance of international communications without court review, and can order surveillance of people outside of the US for a year, all without any review by the FISA Court. The PAA “cut[s FISA] out of the process, leaving the executive branch unchecked.” Any telephone or e-mail communications from US citizens “caught up in the dragnet” can be examined at the government’s leisure, the ACLU says, without any privacy considerations or respect for Constitutional rights. The law leaves “the administration to decide how to collect, store, datamine and use Americans’ private communications.” The ACLU says that the court review provisions of the PAA are a sham. The Attorney General need not explain how US citizens’ communications are handled once they are intercepted. The FISA Court “will have no information about how extensive the breach of American privacy is, nor the authority to remedy it.” The provisions for Congressional oversight are equally meaningless, the ACLU says, because the Attorney General is not required to disclose any information about what domestic communications the government has intercepted or what is being done with those intercepts. (American Civil Liberties Union 8/7/2007)

Former Nixon White House counsel John Dean considers the newly passed Protect America Act (PAA—see August 5, 2007) a dire threat to American civil liberties. Dean writes that the ire of rank-and-file Democrats with their Congressional leadership is well earned, that the Democrats meekly lined up and voted it into law after some pro forma protestations. Dean notes that editorialists from around the country, and organizations as politically disparate as the ACLU (see August 6, 2007), the Cato Institute, and the John Birch Society (see March 10, 1961 and December 2011) all agree that the new law is a serious threat to civil liberties. They all agree that the law violates the Fourth Amendment while at the same time hides its operations under the rubric of national security secrecy. Dean notes, “Congress was not even certain about the full extent of what it has authorized because President Bush and Vice President Cheney refused to reveal it.”
Executive Power Grab - Dean writes that as much of a threat as the PAA is to citizens’ privacy, it is more threatening because it is another step in the Bush administration’s push for enhancing the powers of the executive branch at the expense of the legislative and judiciary branches, a move towards a so-called “unitary executive.” Bush and Cheney have worked relentlessly “to weaken or eliminate all checks and balances constraining the executive,” Dean writes, pointing to “countless laws enacted by the Republican-controlled Congresses during the first six years of the administration, and in countless signing statements added by the president interpreting away any constraints on the Executive.” The new law “utterly fails to maintain any real check on the president’s power to undertake electronic surveillance of literally millions of Americans. This is an invitation to abuse, especially for a president like the current incumbent.”
Repairing the Damage - Dean is guardedly optimistic about the Democrats’ stated intentions to craft a new law that will supersede the PAA, which expires in February 2008, and restore some of the protections the PAA voids. Any such legislation may be quickly challenged by the Bush administration, which wants retroactive legislative immunity from prosecution for both US telecommunications firms cooperating with the government in monitoring Americans’ communications, and for government officials who may have violated the law in implementing domestic surveillance. Dean writes: “[B]efore Congress caved and gave Bush power to conduct this surveillance, he and telecommunication companies simply opted to do so illegally. Now, Bush will claim, with some justification, that because Congress has now made legal actions that were previously illegal, it should retroactively clear up this nasty problem facing all those who broke the law at his command.” Dean writes that Democrats need only do one thing to “fix [this] dangerous law: [add] meaningful accountability.” He continues: “They must do so, or face the consequences. No one wants to deny the intelligence community all the tools it needs. But regardless of who sits in the Oval Office, no Congress should trust any president with unbridled powers of surveillance over Americans. It is not the way our system is supposed to work.” (Dean 8/10/2007)

Conservative radio host Rush Limbaugh asserts that the only reason Democrats are interested in stopping the genocide in Darfur is to secure the African-American vote. Democrats, Limbaugh says, “want to get us out of Iraq, but they can’t wait to get us into Darfur.… There are two reasons. What color is the skin of the people in Darfur? It’s black. And who do the Democrats really need to keep voting for them? If they lose a significant percentage of this voting bloc, they’re in trouble.” Limbaugh, in a conversation with a caller, continues: “So you go into Darfur and you go into South Africa, you get rid of the white government there. You put sanctions on them. You stand behind Nelson Mandela—who was bankrolled by communists for a time, had the support of certain communist leaders. You go to Ethiopia. You do the same thing.… The liberals will use the military as a ‘meals on wheels’ program. They’ll send them out to help with tsunami victims. But you put the military—you put the military in a position of defending US national interest, and that’s when Democrats and the liberals oppose it.” The progressive media watchdog organization Media Matters will note that Congress has exhibited overwhelming bipartisan support for US intervention in Darfur; Republicans sponsored legislation sanctioning Sudan, which contains the Darfur region. The House passed the bill on a 416-3 vote, the Senate passed it unanimously, and President Bush signed it into law shortly thereafter. (Media Matters 8/23/2007)

Author and reporter Charlie Savage observes that the Bush administration went far beyond the Reagan-era vision of a “unitary executive” (see April 30, 1986). He writes that the administration decided early on—perhaps before taking office in January 2001—to combine the “unitary executive” theory with the older concept of the “inherent powers” of the presidency (see 1901-1909 and June 30, 1950). Savage writes: “The new and improved Unitary Executive Theory said that Congress could not regulate any executive power, but the theory said nothing about the potential scope of such power. When fused, the two theories transformed any conceivably inherent executive power into an exclusive one. The president could do virtually anything, without any check by Congress.” Savage notes that most legal experts from across the political spectrum have roundly rejected both theories, as has the Supreme Court (see June 2, 1952 and June 1988). “The Bush-Cheney administration legal team regularly ignored the existence of such precedents in its secret advisory opinions” (see November 16-17, 1987 and September 25, 2001). The Bush administration also used an unusual reading of Alexander Hamilton’s discussion of the executive branch’s “unity” in the Federalist Papers, article 70, in which Hamilton advocated that the president’s powers should not be limited by a body of lawmakers. As Savage points out, most legal scholars call this reading “extremely misleading,” and note that Hamilton was writing about the Founding Fathers’ decision to have a single president instead of an executive committee. In fact, Hamilton explicitly repudiated the idea of a “unitary executive” in Federalist 69. Savage writes: “Over and over again, the presidentialists’ most important legal writings failed to make any mention of Federalist 69, even as they selectively quoted tidbits of Federalist 70—and quoted them out of context—as proof for their power to act beyond the limits of statutes passed by Congress.” Conservative law professor Richard Epstein calls the Bush administration’s legal theory “just wrong,” and its lawyers’ failure to acknowledge Federalist 69 “scandalous.” Epstein says: “How can you not talk about Federalist 69? All you have to do is go on Google and put in ‘Federalist Papers’ and ‘commander in chief,’ and it pops up.” (Savage 2007, pp. 124-127)

MSNBC runs an inaccurate story about waterboarding and its alleged usefulness. According to an article by Robert Windrem sourced to four senior US officials, only three detainees have been waterboarded: alleged 9/11 mastermind Khalid Shaikh Mohammed, militant training camp facilitator Abu Zubaida, and Jemaah Islamiyah head Hambali. The article contains several claims that will later be proved false:
bullet It says that al-Qaeda leader Abd al-Rahim al-Nashiri was not one of three detainees who was waterboarded. (Windrem 9/13/2007) However, it will later be generally reported that he was indeed waterboarded, and Vice President Dick Cheney will admit it in 2008. (Ward 12/18/2008)
bullet The report claims that Hambali was one of the three detainees who was waterboarded. (Windrem 9/13/2007) However, this claim will later fade, with al-Nashiri replacing Hambali as the third detainee subjected to waterboarding. (Ward 12/18/2008) The article also falsely claims that Hambali was subjected to waterbaording because he was “resistant to other interrogation methods.” It adds that he “cried like a baby,” a claim repeated in a prominent subheadline, and “quickly told all he knew.” (Windrem 9/13/2007)
bullet One former senior intelligence official is quoted as saying that “KSM required, shall we say, re-dipping,” although it will later emerge that KSM was waterboarded 183 times on five separate days (see After March 7, 2003 and April 18, 2009).
In addition, the article says, “a total of 13 high value detainees—all of them ranking al-Qaeda operatives—were subjected to ‘enhanced interrogation techniques’ in 2002 through 2004.” (Windrem 9/13/2007) However, according to a 2008 interview with Cheney, the US applied enhanced interrogation techniques to 33 detainees. This number appears to relate to a longer period, from 9/11 until late 2008, although cases where enhanced techniques were used after 2004 are not well known. (Ward 12/18/2008)

An anonymous chain email circulating through the Internet falsely claims that presidential candidate Barack Obama (D-IL) “was enrolled in a Wahabi school in Jakarta. Wahabism is the RADICAL teaching that is followed by the Muslim terrorists who are now waging Jihad against the western world.” PolitiFact, the nonpartisan, political fact-checking organization sponsored by the St. Petersburg Times, calls the accusation intended to promote a “Manchurian Candidate-style conspiracy theory” about Obama’s birth, his religion, and his citizenship. The email accurately notes that Obama’s father was African and born a Muslim (see January 11, 2008). Obama’s stepfather was Indonesian and raised as a Muslim. However, PolitiFact notes, both men were not religiously observant (Obama has described his father as a practicing atheist). Obama’s American mother was agnostic at best. Obama has said that he grew up with virtually no religious traditions. He has been a practicing Christian for decades (see January 6-11, 2008). “Madrassa” is an Arabic word for “school,” but Americans generally understand the word to mean a school where anti-Western Islamic ideology is taught. The email falsely claims that Obama attended a “madrassa” that engaged in a “RADICAL teaching that is followed by the Muslim terrorists who are now waging Jihad against the western world.” PolitiFact notes: “Westerners typically understand Wahabism to be an austere form of Islam based on a literal reading of the Koran. So is that the type of school Obama attended?” Obama attended a secular public school in Indonesia; a press investigation found the school to be “so progressive that teachers wore miniskirts and all students were encouraged to celebrate Christmas.” The school has never taught Wahabism or any other form of “fringe” Islam. News reports accurately indicate that Obama’s school registration form lists Obama’s religion as “Muslim,” but the form has several other errors, and, PolitiFact notes, “it seems reasonable to assume that he was registered as Muslim simply because his stepfather was Muslim.” Obama also attended a Catholic school in Indonesia for several years. PolitiFact concludes that the email is “a wholesale invention designed to frighten voters.” (St. Petersburg Times 10/1/2007)

Jack Goldsmith, the former head of the Justice Department’s Office of Legal Counsel (see October 6, 2003), testifies before the Senate Judiciary Committee about his former department’s involvement in approving the NSA’s warrantless wiretapping program (see Early 2002). (Eggen 10/20/2007) There were aspects of the Terrorist Surveillance Program “that I could not find the legal support for,” he says, but because the program is classified, he refuses to give specific details about which aspects violate the law. Goldsmith says he assumes the White House does not want the legality of the program scrutinized, and therefore, “the extreme secrecy—not getting feedback from experts, not showing it to experts—led to a lot of mistakes.” (Associated Press 10/2/2007)
Testimony About Hospital Visit - Goldsmith testifies about the failed attempt by then-White House counsel Alberto Gonzales and then-White House chief of staff Andrew Card to pressure then-Attorney General John Ashcroft to declare the program legal over the objections of Goldsmith and Ashcroft’s deputy, James Comey (see March 10-12, 2004). Goldsmith, who accompanied Comey to Ashcroft’s hospital room to counter Gonzales and Card, calls their visit “inappropriate and baffling,” and testifies that Ashcroft “didn’t appreciate being visited in the hospital under these circumstances.” Goldsmith’s testimony further refutes the previous testimony of Gonzales, who insisted that there had been little or no dissension within the department over the wiretapping program (see July 24, 2007). Goldsmith tells the committee, “There were enormous disagreements” about the program, though Gonzales’s explanations could be construed as technically accurate given the varying terminology used for the program. (Eggen 10/20/2007) Goldsmith adds that Comey’s account of the events of that visit is accurate, becoming another former administration official to contradict Gonzales’s own testimony about the incident. Goldsmith also contradicts Gonzales’ insistence that there was very little real dissension among Justice Department and White House officials over the legality of the NSA wiretapping program. (Associated Press 10/2/2007)
Bush Sent Gonzales, Card to Pressure Ashcroft - Goldsmith also testifies that President Bush personally dispatched Gonzales and Card to Ashcroft’s hospital room (see October 2, 2007).

The Robert A. Taft Club, a “nativist” organization whose leader has numerous ties to racist groups, hosts Representative Ron Paul (R-TX) as its keynote speaker during an event at an Arlington, Virginia, restaurant, the Boulevard Woodgrill. According to a report by TransWorld News, Paul, a Republican presidential candidate, addresses the US’s “nation building” policies. Paul, TransWorld reports, “has been adamant about the United States dropping its interventionist approach to nation building and returning to an America First policy.” The Taft Club is led by Marcus Epstein, who is also the executive director of The American Cause, a white nationalist group headed by MSNBC commentator Pat Buchanan. He also serves as executive director of Team America PAC, a political action committee run by Buchanan’s sister Bay Buchanan and founded by former Representative Tom Tancredo (R-CO), an outspoken opponent of immigration. Epstein writes for the openly racist, white supremacist Web site VDare.com, and is an outspoken advocate for white supremacist organizations. He is closely connected to the American Renaissance group, which the Southern Poverty Law Center (SPLC) labels an “academic racist” organization and whose journal has claimed that blacks are genetically predisposed to be psychopaths. Epstein has invited racists to speak to his group, including American Renaissance leader Jared Taylor (see January 23, 2005), Taylor’s colleague Paul Gottfried, and Robert Stacy McCain, an opponent of interracial marriage who is an editor for the Washington Times. Epstein has also invited members of a Belgian anti-immigrant group called Vlaams Belang to address the Taft Club. The SPLC writes, “It is unclear if Paul, who will be speaking about American foreign policy, is aware of Epstein’s racist ties.” Paul himself has denied ever espousing racism of any stripe (see 1978-1996). (Southern Poverty Law Center 10/8/2007; TransWorld News 10/11/2007; The Daily Paul 10/13/2007; Holthouse 6/3/2009) Epstein will later be convicted of assaulting an African-American woman (see May 2009).

A federal appeals court hears the case of alleged al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri, who was the victor in a recent court decision that ruled he could no longer be held in military detention with no access to the US court system (see June 11, 2007). Al-Marri’s lawyer, Jonathan Hafetz, asks the Fourth US Court of Appeals to uphold the recent verdict, which was rendered by a three-judge panel from the same court. Now the entire court is reconsidering the case at the government’s request. Hafetz says the court must uphold the decision. “To rule otherwise is to sanction a power the president has never had and was never meant to have.”
Authorization for the Use of Military Force - Judge Paul Neimeyer, a George H. W. Bush appointee, challenges Hafetz’s assertion that al-Marri cannot be held in military custody because he was not captured on a battlefield; to make such a claim would mean “25 or 30 terrorists could sneak into the US” and the military could not stop them. Justice Department lawyer Gregory Garre makes the same argument that the appeals court panel rejected—that Congress gave the president the authority to seize and detain anyone affiliated with al-Qaeda, regardless of where they were captured, when it passed its Authorization for the Use of Military Force (AUMF) after the 9/11 attacks (see September 14-18, 2001). Judge J. Harvie Wilkinson, appointed to the bench by former president Ronald Reagan, says that Congress could appeal or revise the AUMF whenever it likes. (O'Dell 10/31/2007) Wilkinson acknowledges that many have concerns that the AUMF “may have authorized some sweeping detention problem… [, b]ut people are not being swept off the streets of Omaha.” Judge Diana Gribbon Motz interjects, “No, it was Peoria.”
Question of Constitutionality - Wilkinson wonders why the “carefully targeted response by the government” has created “all this hoopla?” Comparing the detention of al-Marri and another enemy combatants, Jose Padilla, to the round-ups of German-Americans during World War I and of Japanese-Americans during World War II, Wilkinson asks if “we’ve lost our sense of perspective.” Judge Roger Gregory says: “The calculus for determining constitutionality is not whether we have a good king or a bad king. It’s not whether he stays his hand in generosity.” Motz and Gregory were the majority judges in the June decision. When Garre argues that al-Marri had ample opportunity to challenge his detention, and “squandered” those opportunities, Judge William Traxler asks, “How does a person who’s held incommunicado challenge” his detention? (Elkins 11/1/2007)

On Fox News’s O’Reilly Factor, Christian activist and Republican strategist Christine O’Donnell says that scientists have succeeded in grafting functioning human brains onto mice. O’Donnell and medical researcher Dr. William Morrone are guests of host Bill O’Reilly, who discusses conservatives’ opposition to stem cell research. O’Reilly begins by noting that researchers in Oregon have succeeded in cloning monkey embryos, which he describes as the first step towards cloning human embryos for the harvesting of stem cells. Morrone favors cloning research because of “the pathology and… the pain” that people suffering from multiple sclerosis, Parkinson’s disease, Alzheimer’s disease, and other ailments are forced to endure. Morrone is not in favor of cloning human embryos, but he is optimistic that cloning research might lead to new ways to harvest stem cells without destroying existing embryos. O’Donnell has a different view: she says that the Oregon researchers “proudly stated” their intention to clone human beings, and says that human cloning is the real, secretive goal of all such research. O’Reilly then states that human cloning is possible now: “They can clone humans now if they wanted to.… Everybody knows that scientists have enough knowledge to clone a human being if they wanted to,” a statement to which O’Donnell agrees. She then adds: “They are—they are doing that here in the United States. American scientific companies are cross-breeding humans and animals and coming up with mice with fully functioning human brains. So they’re already into this experiment.” Morrone interjects, “That’s an exaggeration,” but his objections are overridden by O’Reilly asking him: “[D]o you understand her concern that there are people who are unethical who will do this kind of stuff for whatever reason? Do you understand her concern?” He gives O’Donnell the last word in his segment, and she concludes: “[I]t is inevitable. This really is about human cloning, about dignity versus commodity. And we already answered that question.” (Fox News 11/15/2007) O’Donnell’s assertions will receive little attention until almost three years later, when she wins the Republican primary for the US Senate in Delaware (see September 13, 2010) and the media begins recounting some of her less mainstream political and scientific views. That recounting will speculate that O’Donnell may be misremembering a 2005 report of scientists successfully growing human brain cells within mice; reporter Eric Kleefeld will write that it “is not the same as an actual functioning human brain, but a demonstration that human brain cells can be made from stem cells.” (Kleefeld 9/16/2007)

John Kiriakou.John Kiriakou. [Source: ABC News]Former CIA officer John Kiriakou gives the first of several media interviews around this time about the agency’s use of waterboarding and torture, to ABC. In this interview and others Kiriakou, who led the team that captured militant training camp facilitator Abu Zubaida (see March 28, 2002), makes several points:
bullet Zubaida was waterboarded. This is the first official on-the-record acknowledgment by any CIA official that the controversial technique that simulates drowning was used.
bullet Zubaida was only waterboarded once, for about 30 to 35 seconds. (This is untrue. Zubaida was actually waterboarded at least 83 times—see April 18, 2009.)
bullet After the waterboarding, Zubaida became co-operative; he had previously been uncooperative. (This is also allegedly untrue—see June 2002.) Kiriakou says, “The threat information that he provided disrupted a number of attacks, maybe dozens of attacks.” Kiriakou thinks the attacks were not to be on US soil, but overseas, although he is not sure. Waterboarding and the other techniques were used because of a sense of urgency. “Those tricks of the trade require a great deal of time—much of the time—and we didn’t have that luxury. We were afraid that there was another major attack coming.”
bullet Use of the CIA’s enhanced interrogation techniques is tightly controlled in the agency. Each application of a technique had to be specifically approved by the deputy director for operations.
bullet Kiriakou implies that waterboarding is torture and should remain banned now, but the circumstances of the time warranted its use. He believes that waterboarding both compromised American principles and saved lives. “Like a lot of Americans, I’m involved in this internal, intellectual battle with myself weighing the idea that waterboarding may be torture versus the quality of information that we often get after using the waterboarding technique,” he says. “And I struggle with it.”
Although he was personally involved in Zubaida’s capture, Kiriakou was not present at the interrogations and only learned about them at CIA headquarters. (Esposito and Ross 12/10/2007; Kiriakou 12/10/2007 pdf file; Kiriakou 12/10/2009 pdf file) Over the next few days, Kiriakou gives a number interviews to other media outlets with basically the same information. The New York Times will call the series of interviews a “media blitz.” (Nizza 12/11/2007; Stelter 4/28/2009) The media he speaks to include the Washington Post, the New York Times, National Public Radio, CBS, CNN, and MSNBC (see December 11, 2007). A CNN anchor even calls him “the man of the hour.” (Stelter 4/28/2009) Kiriakou garners praise for his poise in front of the camera. For example, Harper’s journalist Scott Horton will call him “telegenic,” whereas Foreign Policy magazine commentator Annie Lowery will opt for “telegenic and well spoken.” (Horton 12/21/2007; Lowery 4/28/2009)

A group of supporters of Representative Ron Paul (R-TX) and his nascent presidential campaign hold what they call a “tea party moneybomb” on the 234th anniversary of the Boston Tea Party, in an event dubbed “Boston TeaParty07.” Paul is a libertarian Republican with extensive ties to far-right organizations (see July 22, 2007 and August 4, 2008). According to the group Campaign for Liberty, the event raises $4.3 million, the most money ever raised by a Republican presidential candidate in a single day. (The previous record was also held by Paul, who raised $4.2 million on November 5, 2007, Guy Fawkes Day.) The donations come mostly over the Internet. Event spokesperson Rachael McIntosh says: “This basically shows that Ron Paul is a viable candidate. People are so engaged in this campaign because it’s coming from the grass-roots.” Supporters call themselves members of the “Ron Paul Revolution.” One supporter waves a “Don’t Tread on Me” flag while marching down Beacon Street. One participant, Linda Poole, came from her home in Macon, Georgia, to attend the rally. “I’ve been supporting Ron Paul since May and following him since 2005,” she says. If the “founding fathers” were alive today, she adds, “Ron Paul is the only person they would vote for.” The ralliers listen to speeches by Paul’s son Rand Paul, libertarian gubernatorial candidate Carla Howell, and others. At the end of the rally, participants re-enact the dumping of tea into Boston Harbor by throwing banners reading “tyranny” and “no taxation without representation” into boxes that were placed in front of an image of the harbor. “They’re trying to get the attention of the mainstream media, almost like a child that is acting up, trying go get the attention of their parent,” McIntosh says. His Campaign for Liberty will become one of the primary groups associated with the burgeoning “tea party” movement (see August 24, 2010), and this “tea party moneybomb” is later considered one of the earliest moments leading up to the foundation of the movement. (Smith 12/16/2007; Burghart and Zeskind 8/24/2010)

An anonymous chain email circulates throughout the Internet claiming that newly elected President Barack Obama took the oath of office for his former position as a US senator on a Koran, the holy book of Islam, and not a Christian Bible. Obama is a Christian (see January 6-11, 2008), though many of his opponents have insisted that he is a “covert Muslim” or Islamist radical (see April 18, 2008). The email misspells the name as “Kuran,” though it is either spelled Koran or Qu’ran. Two press reports from January 2005 confirm that when Obama was sworn into office as the junior senator from Illinois, he took the oath on his family Bible. The Obama presidential campaign has confirmed that Obama used his family Bible. Vice President Dick Cheney, in his role as president of the Senate, administered the oath. PolitiFact, the nonpartisan, political fact-checking organization sponsored by the St. Petersburg Times, concludes: “We suspect this false claim was inspired by the 2007 swearing-in of Representative Keith Ellison (D-MN), an American convert to Islam and the first Muslim elected to Congress. Ellison used a Koran that once belonged to Thomas Jefferson, borrowing the rare book from the Library of Congress. It goes without saying that Ellison is not Obama. And with its intent to inflame, we find the email’s allegation not only false, but pants-on-fire wrong.” (St. Petersburg Times 12/19/2007)

Daniel Pipes, the director of the Middle East Forum and a fellow of the conservative Hoover Institution, writes that presidential candidate Barack Obama (D-IL) is a “lapsed Muslim.” Pipes bases his argument largely on a Los Angeles Times article that was debunked by the Chicago Tribune. Pipes admits that Obama “is a practicing Christian” and “is not now a Muslim.” But, he continues, Obama was a Muslim in his childhood, and may well be considered a murtadd, or apostate, who converted to another religion from Islam and is now a target of retribution. Pipes notes Obama’s repeated denials that he ever practiced Islam, even as a child, and then asks: “What is Obama’s true connection to Islam and what implications might this have for an Obama presidency? Was Obama ever a Muslim?” Pipes writes that even someone who does not practice Islam is still considered a Muslim by many in the faith, and goes on to say that because Obama uses his middle name of “Hussein,” he is sending coded signals to Muslims that he is, indeed, one of them. He concludes by asking: “[H]ow would more mainstream Muslims respond to him, would they be angry at what they would consider his apostasy? That reaction is a real possibility, one that could undermine his initiatives toward the Muslim world.” (Pipes 12/26/2007; Media Matters 1/16/2008) Pipes’s assertions that Obama is a “lapsed Muslim” will be thoroughly debunked (see January 22-24, 2008), as have his assertions that Obama’s church advocates any form of “black nationalism” or “separatism.” (Media Matters 11/29/2007)

The Pentagon produces a classified report assessing the damage the whistleblower website WikiLeaks could cause to it. The report concludes that “WikiLeaks.org represents a potential force protection, counterintelligence, OPSEC [operational security], and INFOSEC [information security] threat to the US Army.” WikiLeaks published information about US Army operations in Iraq, Afghanistan, and Guantanamo the previous year. The report says some of the interpretations WikiLeaks puts upon released documents are incorrect, but does not detail specific examples. The author also speculates that the organization is actually supported by the CIA. (Strom 3/17/2010) The report itself will later be leaked to WikiLeaks and published by it (see March 15, 2010).

The sanctuary of Trinity United Churco of Christ.The sanctuary of Trinity United Churco of Christ. [Source: Chocolate City (.cc)]PolitiFact, the nonpartisan, political fact-checking organization sponsored by the St. Petersburg Times, investigates claims that Democratic senator Barack Obama (D-IL), a presidential candidate, belongs to “a racist, anti-American church.” The investigation concludes that Obama’s church, Trinity United Church of Christ in Chicago, “teaches black empowerment, not racism, and that it claims Africa as its ethnic heritage.” Anonymous emails “ricocheting around the Internet” claim that Obama should not be president because his church is “anti-American” and “scary,” and, somewhat contradictorily, that Obama is not a Christian, but a “covert Muslim” (see December 19, 2007 and January 11, 2008). The emails began within hours of Obama’s Democratic primary win in the Iowa caucuses. One email declares: “If you look at the first page of their Web site, you will learn that this congregation has a nonnegotiable commitment to Africa. No where [sic] is AMERICA even mention [sic]. Notice too, what color you need to be if you should want to join Obama’s church… B-L-A-C-K!!!” PolitiFact writes: “It’s the latest salvo in the email wars—anonymous missives launched into cyberspace seeking to frighten voters away from presidential candidates in the guise of friendly warnings. Typically they use kernels of truth, then launch into falsehood.” Chicago historian Martin Marty, a white religious expert who has attended Trinity United services in the past, says: “There’s no question this is a distortion.… Whites are highly accepted. They don’t make a fuss over you, but you’re very much welcomed.” PolitiFact finds that Trinity United is one of the larger black “megachurches” in the US, preaches a message of black self-reliance, and has as its motto, “Unashamedly Black and Unapologetically Christian.” The church does have a “nonnegotiable commitment to Africa.” However, it has no racial standards for its members, and does have white and other non-black members. Obama is a member who has attended regularly for years, though with the travails of recent presidential campaigning, his attendance has fallen off in recent weeks. The main focus of the email vitriol, aside from Obama, is Trinity’s senior pastor Jeremiah A. Wright Jr., who preaches passionately and focuses on what he calls “black liberation theology.” Obama has written in his memoir, The Audacity of Hope, that it was Wright’s preaching that inspired him to convert from a secular agnosticism to Christianity during the 1980s. He titled his memoir after one of Wright’s sermons. PolitiFact finds, “Trinity’s commitment to Africa appears to be more a statement of philosophical orientation than of political support for any particular African country,” and notes that the church’s Web site states, “Just as those of Jewish heritage advocate on behalf of the state of Israel, and those of Irish heritage advocate on behalf of Ireland, and those of Polish descent for Poland, so must we of African descent care about the land of our heritage—the continent of Africa.” Divinity professor Dwight Hopkins, an African-American member of Trinity, describes the church as “highly evangelical and Bible-based.” The preaching, he says, tends to be “common-sense folk wisdom laced with theological sophistication.… There’s singing and shouting and people get happy. It’s an old-fashioned, mainstream down-home church that somehow is captured in this 8,000-person congregation.” John C. Green, a political science professor, says scholars do not view black liberation theology as racist, but some outsiders may hold that opinion. “A black empowerment theology could be seen as having a racist element because it isn’t neutral in regards to race,” he says. “The person who wrote this email obviously has very strong feelings about this.” In February 2007, Obama said of his church and his faith: “Commitment to God, black community, commitment to the black family, the black work ethic, self-discipline, and self-respect. Those are values that the conservative movement in particular has suggested are necessary for black advancement. So I would be puzzled that they would object or quibble with the bulk of a document that basically espouses profoundly conservative values of self-reliance and self-help.” In recent weeks, Obama has distanced himself somewhat from Wright and Trinity, because, his campaign says, he wishes to avoid bringing an overwhelming influx of media attention onto the church. The campaign said in a statement, “[B]ecause of the type of attention it was receiving on blogs and conservative talk shows, he decided to avoid having statements and beliefs being used out of context and forcing the entire church to defend itself.” Fox News talk show host Sean Hannity has called Trinity’s teachings “divisive,” and engaged in what PolitiFact calls “a spirited debate” with Wright on one of his broadcasts. Conservative ethicist Michael Cromartie agrees with Hannity, saying: “It’s too strong to call it racist but at the same time, it is a form of identity politics or identity theology, which insists you white people can come to this church, but you won’t get it.” Trinity has stated: “There is no anti-American sentiment in the theology or the practice of Trinity United Church of Christ. To be sure, there is prophetic preaching against oppression, racism, and other evils that would deny the American ideal.” Green is reminded of the 1960 presidential election, when many opponents of candidate John F. Kennedy attacked Kennedy for being Catholic. “But we didn’t have the Internet back then,” he says. “This kind of communication has always gone on, but it moves much faster now.” (St. Petersburg Times 1/6/2008; St. Petersburg Times 1/6/2008; St. Petersburg Times 1/11/2008)

The New Republic writes a January 8, 2008 article detailing years of racist, anti-Semitic, homophobic, and far-right conspiratorial content in the newsletters of libertarian Representative Ron Paul (R-TX—see 1978-1996). (Kirchick 1/8/2008) Hours after the article is published, Paul issues a statement, which reads in part: “The quotations in the New Republic article are not mine and do not represent what I believe or have ever believed. I have never uttered such words and denounce such small-minded thoughts. In fact, I have always agreed with Martin Luther King Jr. that we should only be concerned with the content of a person’s character, not the color of their skin.” After citing his admiration for another civil-rights era icon, Rosa Parks, Paul continues: “This story is old news and has been rehashed for over a decade. It’s once again being resurrected for obvious political reasons on the day of the New Hampshire primary [where Paul is a candidate for the Republican presidential nomination]. When I was out of Congress and practicing medicine full-time, a newsletter was published under my name that I did not edit. Several writers contributed to the product. For over a decade, I have publically taken moral responsibility for not paying closer attention to what went out under my name.” (Gillespie 1/8/2008) Most reactions are strongly negative. Nick Gillespie of the libertarian magazine Reason calls the newsletters’ content “stunning,” “odious,” and “jaw-dropping.” Gillespie adds: “I don’t think that Ron Paul wrote this stuff but that really doesn’t matter—the newsletters carried his name after all.… It is hugely disappointing that he produced a cache of such garbage.” He calls Paul’s response “unsatisfying on about a thousand different levels.” (Gillespie 1/8/2008) Radley Balko, also of Reason, writes that he “find[s] the prospect that Paul never read the newsletter implausible.” Reason senior editor Brian Doherty, who wrote a recent cover story enthusing over Paul’s candidacy, now writes that Paul’s “campaign’s reaction to this has been politically disastrous and given the third-rail nature of accusations of racism, Ron Paul’s campaign was likely fatally wounded.” (Kirchick 1/15/2008) David Boaz, a senior official of the libertarian Cato Institute, notes that Paul’s response indicates he is essentially unfit to be president, seeing as Paul’s defense has been, “I didn’t know what my closest associates were doing over my signature, so give me responsibility for the federal government.” Boaz writes that few at the Cato Institute were supportive of Paul even before the newsletters’ content became widely known: “We had never seen the newsletters that have recently come to light, and I for one was surprised at just how vile they turned out to be. But we knew the company Ron Paul had been keeping, and we feared that they would have tied him to some reprehensible ideas far from the principles we hold.” Paul may well have not written the newsletters, Boaz notes, “[b]ut he selected the people who did write those things, and he put his name on the otherwise unsigned newsletters, and he raised campaign funds from the mailing list that those newsletters created. And he would have us believe that things that ‘do not represent what I believe or have ever believed’ appeared in his newsletter for years and years without his knowledge. Assuming Ron Paul in fact did not write those letters, people close to him did. His associates conceived, wrote, edited, and mailed those words. His closest associates over many years know who created those publications. If they truly admire Ron Paul, if they think he is being unfairly tarnished with words he did not write, they should come forward, take responsibility for their words, and explain how they kept Ron Paul in the dark for years about the words that appeared every month in newsletters with ‘Ron Paul’ in the title.” Boaz notes that while many Paul supporters are angrily speculating about “conspiracies” leading to the expose of the newsletters (see January 12-15, 2008), they are not denying that Paul’s newsletters actually contained that content. Because of the content of these newsletters, Boaz writes, Paul “and his associates have slimed the noble cause of liberty and limited government.” (Boaz 1/11/2008)

A poster promoting ‘Hillary: The Movie.’A poster promoting ‘Hillary: The Movie.’ [Source: New York Times]The conservative lobbying group Citizens United (CU—see May 1998 and (May 11, 2004)) releases a film entitled Hillary: The Movie. The film is a lengthy diatribe attacking the character and career of Senator Hillary Clinton (D-NY), a leading candidate for the Democratic presidential nomination. Large portions of the film are comprised of conservative critics launching attacks against the personalities and character of Clinton and her husband, former President Clinton. CU president David Bossie (see May 1998) says he based his film on a documentary, Fahrenheit 9/11, released in 2004 by liberal filmmaker Michael Moore (see August 6, 2004), and calls it “a rigorously researched critical biography” comparable to the material presented on political talk shows such as Meet the Press. (Barnes 3/15/2009; Moneyocracy 2/2012) Bossie intended for the film to be released in late 2007 and impact the 2008 race in the same way that he believes Fahrenheit 9/11 impacted the 2004 race. A cable company made the film, at a cost of $1.2 million, available for free to viewers on “video on demand.” Bossie also scheduled a small theater run for the film, but his primary focus was always cable television and the accompanying television advertisements. Knowing the film will probably run afoul of campaign law, he hired lawyers, first James Bopp Jr. (a former member of the far-right Young Americans for Freedom—YAF—and the former general counsel for the National Right to Life Committee—see November 1980 and After) (Toobin 5/21/2012) and later Theodore B. Olson, the former solicitor general under the Bush administration. Olson will later say the film is “a critical biographical assessment” that provides “historical information about the candidate and, perhaps, some measure of entertainment as well.” The New York Times calls it “a scathingly hostile look at Mrs. Clinton” replete with “ripe voice-overs, shadowy re-enactments, and spooky mood music.” The film also contains interviews and material from mainstream media reporters, and interviews with figures such as former CIA agent Gary Aldrich, who wrote a “tell-all” book about the Clinton administration, and with Kathleen Willey, who has claimed that Bill Clinton once made an unwelcome sexual advance towards her. Reviewer Megan Carpentier of Radar Online will trounce the movie, saying that it “scrolls through more than a decade of press clippings and a treasure trove of unflattering pictures in its one-sided romp” and will advise potential viewers to watch it “while inebriated in the manner of your choosing, and only if you don’t pay $10 for the privilege.” (Liptak 3/5/2009) Bossie claims the movie has nothing to do with the impending primary elections. CU intends to show the movie in a small number of theaters but primarily on “video on demand” cable broadcasts, with accompanying television advertisements. In return for a $1.2 million fee, a cable television consortium has agreed to make the movie freely available to its customers as part of what CU calls its “Election ‘08” series. (CU has another negative documentary on Clinton’s Democratic challenger Barack Obama in the works—see October 28-30, 2008—but apparently has no plans to air any documentaries on Republican candidate John McCain or any other Republican presidential candidates.) However, the Federal Election Commission (FEC) refuses to allow the film to be aired on cable channels, or advertised for theater release, because the FEC considers the film “electioneering” and thus subject to campaign finance law (see March 27, 2002) restrictions. Moreover, the film and its planned distribution are funded by corporate donations. (United States District Court for the District Of Columbia 1/15/2008; Richard Hasen 1/15/2008; Toobin 5/21/2012) Bossie claims the film takes no position on Clinton’s candidacy, and says that if he had to vote between Hillary Clinton and Barack Obama, he would vote for Clinton. (Liptak 3/5/2009)
Court Fight - Bopp, CU’s original lawyer, decides to pursue the same general aggressive course that he took in a recent successful Supreme Court campaign finance case, the Wisconsin Right to Life (WRTL) decision (see Mid-2004 and After). The Hillary film was envisioned from the outset to serve multiple purposes: to advance conservative ideology, damage Clinton’s presidential chances (despite Bossie’s claims), and generate profits. Bopp knows that the FEC would likely classify the film as a political advertisement and not a work of journalism or entertainment (see August 6, 2004), and therefore would fall under campaign law restrictions. Before the film is officially released, Bopp takes the film to the FEC for a ruling, and when the FEC, as expected, rules the film to be “electioneering communication” that comes under campaign law restrictions, Bopp files a lawsuit with the Washington, DC, federal district court. The court rules in favor of the FEC judgment, denying CU its request for a preliminary injunction against the FEC’s ruling. The court specifically finds that the WRTL decision does not apply in this case. “[I]f the speech cannot be interpreted as anything other than an appeal to vote for or against a candidate, it will not be considered genuine issue speech even if it does not expressly advocate the candidate’s election or defeat,” the court states. The court also questions CU’s statement that the film “does not focus on legislative issues.… The movie references the election and Senator Clinton’s candidacy, and it takes a position on her character, qualifications, and fitness for office.” Film commentator Dick Morris has said of the film that it will “give people the flavor and an understanding of why she should not be president.” The court rules, “The movie is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” (During arguments, Bopp says that the film is much like what a viewer would see on CBS’s evening news show 60 Minutes, and Judge Royce Lamberth laughs aloud, saying: “You can’t compare this to 60 Minutes. Did you read this transcript?” Other judges find it problematic that one of the film’s central “issues” is its assertion that Clinton is, in Bopp’s words, “a European socialist,” but still claims not to be overtly partisan.) (Mencimer 1/13/2008; United States District Court for the District Of Columbia 1/15/2008; Richard Hasen 1/15/2008; Toobin 5/21/2012)
Supreme Court Appeal - CU appeals the court’s decision directly to the Supreme Court. Bossie soon decides to replace Bopp with Olson, a far more prominent figure in conservative legal circles. Toobin will write: “Ted Olson had argued and won Bush v. Gore (see 9:54 p.m. December 12, 2000), and was rewarded by President Bush with an appointment as solicitor general. Olson had argued before the Supreme Court dozens of times, and he had a great deal of credibility with the justices. He knew how to win.” (Richard Hasen 1/15/2008; Toobin 5/21/2012)
Previous Attempt - In September 2004, Bossie and CU attempted, without success, to release a similar “documentary” supporting President Bush and attacking Democratic presidential candidate John Kerry (D-MA) on television, just weeks before the presidential election. The FEC turned down the group’s request. The FEC did allow the film to be shown in theaters (see September 8, 2004 and September 27-30, 2004).
'Ten-Year Plan' - Bopp will later reveal that the lawsuit is part of what he will call a “10-year plan” to push the boundaries of campaign finance law, and that he urged Bossie and other CU officials to use the documentary as a “test case” for overturning the body of law (see January 25, 2010).

PolitiFact, the nonpartisan, political fact-checking organization sponsored by the St. Petersburg Times, debunks Internet claims that Senator Barack Obama (D-IL), a presidential candidate, is a covert Muslim whose middle name is Mohammed. The claims appear to be sourced from anonymous emails circulating throughout right-wing blogs and organizations. PolitiFact writes: “First off, Barack Obama’s middle name is not Mohammed; it’s Hussein. He was named after his father, a Kenyan who came to the United States from Africa as a student.” PolitiFact also verifies that Obama is not a Muslim, “covert” or otherwise. Obama is a member of the Trinity United Church of Christ in Chicago (see January 6-11, 2008). PolitiFact notes that the emails contradict themselves, on the one hand making the claim that Obama is a Muslim and on the other attacking his membership in Trinity United. Obama campaign spokesman Robert Gibbs has said, “To be clear, Senator Obama has never been a Muslim, was not raised a Muslim, and is a committed Christian who attends the United Church of Christ in Chicago.” (St. Petersburg Times 1/11/2008; St. Petersburg Times 1/11/2008) PolitiFact does further investigation and again debunks the claims months later (see April 18, 2008). PolitiFact has already debunked earlier claims that in 2005, Obama took his Senate oath of office on a Koran, when in reality he used his family Bible (see December 19, 2007).

At least one supporter of far-right libertarian Representative Ron Paul (R-TX) argues that a recently published article in the New Republic that exposed the overtly racist and conspiratorial content in Paul’s newsletters (see 1978-1996) was the result of a conspiracy by “beltway libertarians” from the Cato Institute to discredit Paul. According to Thomas DiLorenzo, the Koch family (see 1979-1980), who provide much of the funding for the Cato Institute (see 1977-Present and 1981-2010), is behind the conspiracy. “Proof” of this conspiracy, according to DiLorenzo, is that James Kirchick, the author of the article, has said he found many of the newsletters in the University of Kansas library; Charles Koch “is a major patron” of that university. DiLorenzo asks, “How on earth would a kid just out of college know to go to a library in Kansas, of all places, to dig up such stuff?” DiLorenzo goes on to say that he “recognized a paragraph [in Kirchick’s article] that was identical to one written on several occassions by one of the especially hate-filled Beltway losers who works at a DC ‘think tank’ on his spleen-venting personal blog. Either he wrote it or coached the author.” Author David Bernstein, who notes that the Cato Institute is preparing to publish a book of his, speculates that Kirchick may have used an Internet database called Wordcat to find the Paul newsletters, and writes, “Even ‘kids just out of college’ often know how to use the Internet, I believe.” And Kirchick calls DiLorenzo’s conspiracy theorizing “comically credulous.” (Kirchick 1/8/2008; Thomas DiLorenzo 1/12/2008; David Bernstein 1/12/2008; Kirchick 1/15/2008) DiLorenzo publishes his theory on the blog of former Paul chief of staff Lew Rockwell, who runs the Ludwig von Mises Institute, a libertarian think tank in Alabama closely allied with Paul. (Thomas DiLorenzo 1/12/2008) A week after the publication of the first New Republic article, Paul will deny having virtually any involvement with his newsletters (see January 16, 2008).

Republican political strategist Dick Morris falsely claims that “Clinton appointees” on the Federal Election Commission (FEC) are preventing the advocacy group Citizens United (CU) from airing its new documentary, Hillary: The Movie (see January 10-16, 2008). However, the head of CU, David Bossie (see May 1998), says that the organization can indeed show the documentary. Morris, appearing as a guest on Fox News’s Hannity and Colmes, tells co-host Alan Colmes that the FEC “won’t let us run” the film “in movie theaters.” He explains, “The Clinton appointees [on the FEC] are blocking it.” However, Bossie tells a Washington Times reporter, “I can put it in theaters, I just can’t let anybody know it’s there.” The FEC requires CU to comply with disclosure requirements under campaign finance law if it wishes to advertise the movie, a requirement the organization is unwilling to meet. (The day after Morris’s appearance, a court rules that CU must disclose its donors in order to advertise the film—see January 15, 2008.) Morris was originally a producer of the film before stepping away from the project, but has said that he appears in the film as a commentator. (Media Matters 1/16/2008) CU will release the film in theaters the next day (see January 10-16, 2008).

A three-judge panel rules that the conservative advocacy group Citizens United (CU) must agree to reveal the identities of the donors that made its documentary on presidential candidate Hillary Clinton possible, if it intends to advertise the film. The film, entitled Hillary: The Movie, is considered by the Federal Election Commission (FEC) to be “electioneering,” or the communication of partisan political views, as opposed to a more objective documentary as CU claims. CU challenged the FEC in court in a December 2007 filing, claiming that “issue-oriented television ads are protected by the First Amendment and should not be subject to disclosure requirements under McCain-Feingold campaign finance law,” referring to the Bipartisan Campaign Reform Act of 2002 (BCRA—see March 27, 2002). Under the BCRA, partisan political communications such as the CU film are subject to blackout periods in a specific period before elections. The Supreme Court ruled that so-called “issue ads” can be run by partisan political groups such as CU (see Mid-2004 and After), but the FEC has ruled that such “issue ads” must include disclaimers, and the producers of the ads must file reports that name the ads’ contributors. CU is challenging such disclosure requirements, saying that advertisements for the Clinton film are commercial in nature and not political, and therefore protected under the First Amendment from being forced to disclose donor information. The court rules otherwise. (United States District Court for the District Of Columbia 1/15/2008 pdf file; McCain 1/16/2008; Media Matters 1/16/2008)

A September 2007 photo of Ron Paul and Don Black, the former Klansman who runs the racist Stormfront.org Web site.A September 2007 photo of Ron Paul and Don Black, the former Klansman who runs the racist Stormfront.org Web site. [Source: BTX3 (.com)]An article in the libertarian newsletter Reason discusses the controversy surrounding the racist, homophobic, and anti-Semitic material printed in newsletters issued by US Representative Ron Paul (R-TX) from 1978 through at least 1996 (see 1978-1996). The controversy has erupted in recent weeks after an article by the New Republic publicized the newsletters and prompted Paul’s disassociation from those publications (see January 8-15, 2008). Paul, a self-described libertarian, has waffled on claiming authorship of the newsletters; he has gone from saying in 1996 that he wrote all the material in them (see May 22 - October 11, 1996) to more recently claiming that he wrote virtually none of their content and knew little of what was being published under his name for nearly 20 years. (In 2001 he told a reporter that in 1996 he did not admit that a ghostwriter wrote most of the material because to do so would have been “confusing” for voters (see October 1, 2001); this year, Paul is claiming to have virtually no knowledge of anything printed in the newsletters.) In mid-January, he told a CNN reporter that he had “no idea” who wrote some of the racially inflammatory rhetoric in his newsletters, and said he repudiated the flagrantly bigoted material printed therein.
Conservative Libertarian Said to Be Paul's 'Ghostwriter' - According to Reason reporters Julian Sanchez and David Weigel, some libertarian activists, including some close to Paul, name Paul’s “ghostwriter” to be Llewellyn “Lew” Rockwell Jr. Rockwell is the founder of the Ludwig von Mises Institute, a libertarian think tank in Alabama with which Paul has maintained close ties. Rockwell was Paul’s Congressional chief of staff from 1978 through 1982, and was vice president of Ron Paul & Associates, which published two of Paul’s newsletters before its dissolution in 2001. Sanchez and Weigel note, “During the period when the most incendiary items appeared—roughly 1989 to 1994—Rockwell and the prominent libertarian theorist Murray Rothbard championed an open strategy of exploiting racial and class resentment to build a coalition with populist ‘paleoconservatives,’ producing a flurry of articles and manifestos whose racially charged talking points and vocabulary mirrored the controversial Paul newsletters unearthed by the New Republic.” Rockwell is to this day a close friend and adviser to Paul, accompanying him to major media appearances, promoting his presidential candidacy, publishing his books, and selling Paul’s writings and audio recordings. Rockwell has denied writing any of the newsletters’ content, and refused to be interviewed by Sanchez and Weigel. He has called discussion of the newsletters “hysterical smears aimed at political enemies” of the New Republic. Paul himself calls the controversy “old news” and “ancient history.” A source close to the Paul presidential campaign says Rockwell indeed wrote much of the newsletters’ content, and says: “If Rockwell had any honor he’d come out and I say, ‘I wrote this stuff.’ He should have done it 10 years ago.” Former American Libertarian (AL) editor Mike Holmes says that Rockwell was Paul’s chief ghostwriter as far back as 1988, when Rockwell wrote material for AL under Paul’s name. “This was based on my understanding at the time that Lew would write things that appeared in Ron’s various newsletters,” Holmes says. “Neither Ron nor Lew ever told me that, but other people close to them such as Murray Rothbard suggested that Lew was involved, and it was a common belief in libertarian circles.” A Rockwell associate, Wendy McElroy, says Rockwell’s identity as Paul’s ghostwriter is “an open secret within the circles in which I run.” Timothy Wirkman Virkkala says he and members of the libertarian magazine Liberty, which he used to edit, knew that Rockwell wrote material under Paul’s name, as did Rothbard on occation.
Change in Strategy: 'Outreach to the Rednecks' - Sanchez and Weigel note: “The tenor of Paul’s newsletters changed over the years. The ones published between Paul’s return to private life after three full terms in Congress (1985) and his Libertarian presidential bid (1988) notably lack inflammatory racial or anti-gay comments. The letters published between Paul’s first run for president and his return to Congress in 1996 are another story—replete with claims that Martin Luther King ‘seduced underage girls and boys,’ that black protesters should gather ‘at a food stamp bureau or a crack house’ rather than the Statue of Liberty, and that AIDS sufferers ‘enjoy the attention and pity that comes with being sick.’” They also note that the newsletters were a significant source of funding for Paul’s campaigns. Former Paul campaign aide Eric Dondero, who after leaving the organization in 2004 has become one of Paul’s most notable critics, says that Paul’s staff learned between his stints in Congress that “the wilder they got, the more bombastic they got with it, the more the checks came in. You think the newsletters were bad? The fundraising letters were just insane from that period.” Ed Craig, the president of the libertarian Cato Institute, says he remembers a time in the late 1980s when Paul boasted that his best source of Congressional campaign donations was the mailing list for The Spotlight, the conspiracy-mongering, anti-Semitic tabloid run by Holocaust denier and white supremacist Willis Carto until it folded in 2001. Rockwell and Rothbard broke with the Libertarian Party after the 1988 presidential election, and formed what the authors call “a schismatic ‘paleolibertarian’ movement, which rejected what they saw as the social libertinism and leftist tendencies of mainstream libertarians. In 1990, they launched the Rothbard-Rockwell Report, where they crafted a plan they hoped would midwife a broad new ‘paleo’ coalition.” Rockwell wrote in 1990 that his new libertarian movement must embrace overtly conservative values, including values he called “right-wing populism.” The strategy was codified in what he called “Outreach to the Rednecks,” and embraced overtly racist, homophobic, and anti-Semitic views. Rockwell looked to Senator Joseph McCarthy (R-WI), the leader of the 1950s “Red Scare,” and former Ku Klux Klan leader David Duke as models for the new strategy. The newly, flagrantly racist material in Paul’s newsletters were apparently part of Rockwell’s “paleolibertarian” strategy. The strategy encompassed values espoused by Paul, including what the authors cite as “tax reduction, abolition of welfare, elimination of ‘the entire ‘civil rights’ structure, which tramples on the property rights of every American,’ and a police crackdown on ‘street criminals.’” Rockwell envisioned Paul as the leader of the new movement until 1992, when Republican presidential candidate Pat Buchanan convinced Paul to withdraw from the 1992 campaign and back his candidacy instead. At that point, Rockwell called himself and his fellow “paleolibertarians” “Buchananites” who could choose “either Pat Buchanan or David Duke” to represent them.
Change in Tone - In recent years, Paul has suspended his newsletters, disavowed the racism, homophobia, and anti-Semitism of their content, and presented himself as a conservative libertarian who idolizes Dr. Martin Luther King Jr. and embraces people of all races and religions. Sanchez and Weigel conclude that Paul is trying to bring a new generation of minorities into the libertarian fold, and write: “Ron Paul may not be a racist, but he became complicit in a strategy of pandering to racists—and taking ‘moral responsibility’ for that now means more than just uttering the phrase. It means openly grappling with his own past—acknowledging who said what, and why. Otherwise he risks damaging not only his own reputation, but that of the philosophy to which he has committed his life.” (Sanchez and Weigel 1/16/2008)

Reporters show that Senator Barack Obama (D-IL), a leading Democratic presidential candidate, was never educated in a “madrassa,” or Islamic school, as some of his political enemies claim. Insight Magazine, a subsidiary of the conservative Washington Times, recently reported that the presidential campaign of Senator Hillary Clinton (D-NY) had unearthed information showing that Obama was educated in an Indonesian madrassa during his childhood. The Clinton campaign disputes that it is the source of the story, and calls it “an obvious right-wing hit job.” Obama indeed lived in Indonesia from 1967 through 1971, with his mother and stepfather, but was not educated in a madrassa. Instead, Obama, who was six when his family moved to Indonesia, attended the Basuki School from 1969 through 1971. According to a school official: “This is a public school. We don’t focus on religion.” CNN correspondent John Vause, who visited the school, reports: “I came here to Barack Obama’s elementary school in Jakarta looking for what some are calling an Islamic madrassa… like the ones that teach hate and violence in Pakistan and Afghanistan.… I’ve been to those madrassas in Pakistan… this school is nothing like that.” A former classmate of Obama’s says the school was not radical in 1969: “It’s not [an] Islamic school. It’s general.… There is a lot of Christians, Buddhists, also Confucian.… So that’s a mixed school.” Associated Press reporters also visit two other schools attended by Obama, the SDN Menteng 1 and Fransiskus Assisi. SDN Menteng 1 is a secular public school, according to its vice principal, while Fransiskus Assisi is, according to the Indonesian Ministry of Religious Affairs, “clearly a Catholic school.” After the Insight story is repeated on Fox News, the Obama campaign calls those broadcasts “appallingly irresponsible.” (CNN 1/22/2008; Pickler 1/24/2008) Despite the debunking, some conservative radio hosts continue to assert that Obama is a Muslim (see January 10, 2008, February 21, 2008, April 3, 2008, July 10, 2008, August 1, 2008 and After, August 21, 2008, and September 10, 2008).

CNN Headline News talk show host Glenn Beck tells his viewers that if presidential candidate Hillary Clinton (D-NY) wants to be consistent with her belief in affirmative action, she should give her opponent, African-American candidate Barack Obama (D-IL), “an additional five percentage points just for the years of oppression.” Beck makes his statement after asserting that anyone mentioning Obama’s race in a denigrating or derogatory fashion is “insulting,” and something only “professional separators” would attempt: “All they do is pull us apart so they can angle and try to grab as many people and ignite their base—and it’s outrageous. And it’s happening on all sides, on all issues, and it has got to stop or we’re going to disintegrate.” (CNN 1/25/2008; Media Matters 1/28/2008)

President Bush makes racially charged statements while addressing an audience at a Republican fundraiser in Hillsborough, California, outside San Francisco. The fundraiser, hosted by the chairman of an investment firm, raises $1.5 million for the Republican National Committee. (Wildermuth 1/31/2008) The media will not learn about Bush’s remarks until late 2009, when former Bush administration speechwriter Matt Latimer publishes his book, Speechless: Tales of a White House Survivor. Latimer will write: “He talked about his own failings with alcoholism as the reason he supported his faith-based initiative. ‘My philosophy is, find somebody who hurts and do something about it,’ he said. ‘Don’t wait for government to tell you what to do.’ He bluntly talked about his own situation. ‘I was beginning to love alcohol over my wife and kids. It got to a point when Billy Graham came into my life. But I was hardheaded and didn’t want to listen for a while. And then I stopped drinking overnight. I am a one-man faith-based initiative. Alcohol was competing for my affections. And it would have ruined me.’ He said things that could ruffle feathers, such as how he’d recently gone to a faith-based program run by ‘former drunks.’ He said he went to see a prison ministry program, noting that ‘everyone was black, of course.’ All eyes turned in search of the sole African American in the audience of donors. They wanted to see if he was offended.” Latimer will write that the sole African-American donor did not “appear to be” offended, and will defend Bush, writing that he “didn’t mean it in a derogatory way. He just liked making blunt observations to shock his audience.” (Think Progress 9/23/2009)

Michael Savage.Michael Savage. [Source: Portland Indymedia]As reported by progressive media watchdog site Media Matters, conservative radio host Michael Savage calls the Democratic presidential primary race, now between African-American Barack Obama and female Hillary Clinton, “the first affirmative-action election in American history.” Savage says: “We have a woman and a multi-ethnic man running for office on the Democrat side. Is this not akin to an affirmative action election? Isn’t that why the libs are hysterical, tripping over themselves to say amen and yes to this affirmative election vote?” Because Americans do not support affirmative action, Savage asserts, voters will reject either Democratic candidate in the November presidential elections. “When they are heard from, the affirmative action ticket goes down in flames… I don’t really care who’s gonna be on the other side, they win. America’s not ready for an affirmative action presidency. I stand by those words.” Savage goes on to characterize Democratic supporters as “radical red-diaper doper babies from Brooklyn who made a fortune in the film business by urinating on the American flag and decimating the American value, the values that you grew up loving. They [are t]he ones who made a fortune hating America.” (Media Matters 2/4/2008)

As reported by progressive media watchdog site Media Matters, syndicated conservative radio host Michael Savage, continuing the well-debunked assertion that Democratic presidential candidate Barack Obama is a Muslim (see January 22-24, 2008), says that American voters “have a right to know if he’s a so-called friendly Muslim or one who aspires to more radical teachings.” The media should not worry about Republican candidate John McCain’s connections to lobbyists, Savage says, and instead should be more concerned with “the Muslim connection to Obama.” Savage says: “Barack Hussein Obama. Father Muslim, grandfather Muslim. Nothing wrong with that. But we, the American people, being at war with radical Islam have a—have a need to know just exactly what kind of Muslim he was exposed to, what kind of Muslim he is, what kind of Muslim teachings he’s—he’s friendly to. We have a right to know if he’s a so-called friendly Muslim or one who aspires to more radical teachings.” (Media Matters 2/22/2008)

Larry Niven.Larry Niven. [Source: Larry Niven]A group of science fiction writers calling themselves SIGMA is engaged in advising the Department of Homeland Security (DHS) on how to protect the nation. Undersecretary of Science and Technology Jay Cohen says he likes their unconventional thinking. Two of the approximately 24 members are right-wing libertarian authors Jerry Pournelle and Larry Niven, who have collaborated on a number of books as well as writing numerous novels and short stories on their own. One of Niven’s more controversial ideas is to help hospitals stem financial losses by spreading rumors in Spanish within the Latino community that emergency rooms are killing patients in order to harvest their organs for transplants. Niven believes the rumors would discourage Latinos from using the nation’s emergency rooms and thus ease the burden on hospitals. “The problem [of hospitals going broke] is hugely exaggerated by illegal aliens who aren’t going to pay for anything anyway,” Niven says. Pournelle asks, somewhat jokingly, “Do you know how politically incorrect you are?” Niven replies, “I know it may not be possible to use this solution, but it does work.” (Magnuson 2/28/2008) One blogger, apparently angered by Niven’s proposal, later writes that Niven’s idea comes from his “magical, mystical fictional universe where hospitals don’t have to treat rednecks who OD on meth, insurance companies aren’t inflating the cost of hospital care, under-regulated drug companies aren’t making massive profits, and uninsured children of hardworking parents don’t fall off skateboards.” (Mark Frauenfelder 3/28/2008)

A screenshot of Palin’s 2008 address to the Alaskan Independence Party’s convention.A screenshot of Palin’s 2008 address to the Alaskan Independence Party’s convention. [Source: World News (.com)]Governor Sarah Palin (R-AK) makes a videotaped address to the annual convention of the Alaskan Independence Party (AIP), a far-right, secessionist third party that has had considerable success in state and local politics. Palin’s husband Todd was a member of the AIP from 1995 through 2002, when he reregistered his voter status as “undecided.” Palin’s address steers clear of racist and secessionist rhetoric, but is very complimentary. She tells the assemblage: “I share your party’s vision of upholding the Constitution of our great state. My administration remains focused on reining in government growth so individual liberty can expand. I know you agree with that.… Keep up the good work and God bless you.” Palin has been given tremendous, if behind-the-scenes, support from former AIP chairman Mark Chryson throughout her political career (see October 10, 2008). Her attendance at the 1994 and 2006 AIP conventions, her address to the 2008 convention, and her husband’s membership in the AIP, will become a minor issue when she is named as the running mate for presidential contender John McCain (R-AZ). Chryson will insist that neither of the Palins had any real dealings with the AIP. “Sarah’s never been a member of the Alaskan Independence Party,” he will say. “Todd has, but most of rural Alaska has too. I never saw him at a meeting. They were at one meeting I was at. Sarah said hello, but I didn’t pay attention because I was taking care of business.” This contradicts Chryston’s near-boasting of his access to, and influence with, Palin during her tenure on the Wasilla City Council, as mayor of Wasilla, and as governor. And Dexter Clark, the current vice chairman of the AIP, will claim that Palin was an AIP member while she was Wasilla’s mayor, though she switched to the Republican Party to run for governor so as to have a broader appeal to the electorate. The McCain-Palin campaign will produce documentation that shows Palin registered as a Republican in 1988, and was never an official AIP member. (Blumenthal and Neiwert 10/10/2008) The AIP Web site’s convention page touts Palin’s videotaped message; the message is the only thing on the convention page. (Alaskan Independence Party 2008)

As reported by progressive media watchdog site Media Matters, conservative radio host Michael Savage says of Democratic presidential candidate Barack Obama, “I think he was hand-picked by some very powerful forces both within and outside the United State of America to drag this country into a hell that it has not seen since the Civil War of the middle of the 19th century.” Savage is referring to controversial statements made by Obama’s former pastor, the Reverend Jeremiah Wright, whom Savage calls “the soul of Barack Obama’s movement.” Savage goes on to claim that Wright, and by extension Obama, align themselves with historical enemies of the United States: “And if you want a man who says not ‘God bless America,’ but ‘God d_mn America,’ if you want a man who takes the side of the imperial Japanese army, an army that killed not only hundreds of thousands in the Bataan Death March, but hundreds of thousand of Koreans, an army that operated on people while they were alive in Manchuria, a man who takes the side, in essence, of the Japanese Nazis of World War II, if you want a man who takes the side, in essence, of the Hitlers of the world, then you’ve got it in Barack Obama’s pastor, Jeremiah Wright, of the Trinity United Church of Christ.” Obama is merely “an ordinary apparatchik of the Democrat machine in Chicago” whose handlers intend to use Obama to bring upheaval and chaos to the nation. (Media Matters 3/19/2008)

The Supreme Court dismisses an appeal by the political advocacy group Citizens United (CU) that argued the group’s First Amendment rights had been violated by the Federal Election Commission (FEC). The Court had agreed to hear CU’s case that it should be allowed to broadcast a partisan political documentary about Democratic presidential candidate Hillary Clinton, Hillary: The Movie, on cable television networks in the days before critical primary elections (see January 10-16, 2008). The Court did not rule on the merits of the case, but instead ruled that CU should have filed its case first with the federal appeals court in Washington. The ruling does not dismiss the case entirely, but makes it unlikely that the Court will rule on the campaign law issues surrounding the case (see March 27, 2002) before the November 2008 elections. Lawyer James Bopp, representing CU, says, “It is our intention to get the case expeditiously resolved on the merits in the district court, and then if we are unsuccessful there, to appeal” again to the Court. Bopp accuses Justice Department lawyers of trying to slow down the case to prevent it being resolved before the election. CU also wants to release a similar documentary about the other leading Democratic presidential contender, Barack Obama (D-IL—see October 28-30, 2008), in a similar fashion to its planned widespread release of the Clinton film. Justice Stephen Breyer, one of the Court’s more liberal members, says in the order dismissing the appeal that had the case been taken up, he would have affirmed the previous decision in favor of the FEC. None of the other justices made any public statement about the case. The case will be heard by the Washington, DC, federal appeals court. (Richey 3/24/2008) The appeals court will find against CU, and the organization will reapply to the Court for a hearing, an application which will be granted (see March 15, 2009).

John Kasich, stumping for governor in 2010.John Kasich, stumping for governor in 2010. [Source: CleveScene (.com)]Fox News contributor John Kasich (R-OH), a former US representative and a current managing partner of the financial firm Lehman Brothers, announces that he intends to challenge Governor Ted Strickland (D-OH) in the 2010 midterm elections. Basic journalist ethics require Fox News to terminate its contract with Kasich and treat him as a candidate for office in future broadcasts. Instead, Kasich remains a Fox News employee until June 1, 2009, when he formally launches his bid for governor of Ohio. He regularly promotes his candidacy on Fox broadcasts, most often on the highly rated O’Reilly Factor, where he is a frequent guest and sometime guest host. Fox News commentators frequently laud Kasich; on June 17, 2008, Republican political analyst and paid Fox contributor Frank Luntz says he is “hoping that Kasich runs for governor of Ohio. I think John would be an outstanding candidate.” On July 15, 2008, talk show host Sean Hannity tells Kasich: “I’m advocating that you run for governor one day. And you’re not.… You’re not going along at all.” Kasich will continue to appear as a regular guest on Fox News programming after he formally launches his bid and Fox terminates its contract with him. He will make frequent appearances on Hannity’s show, where Hannity calls him “governor” and “soon-to-be governor,” and holds a fundraiser for Kasich in October 2009. On The O’Reilly Factor, Fox will show the URL for Kasich’s campaign Web site. On July 8, 2009, Hannity will tell Kasich on air: “You do me a favor. Go get elected governor, although why you would ever want that job, you’re out of your mind, but good luck. And I’m supporting you in the effort.” Kasich will also receive two $10,000 contributions from News Corporation, the parent company of Fox News. (Columbus Dispatch 3/27/2008; Hananoki 9/24/2010) Kasich will narrowly defeat Strickland in the 2010 gubernatorial elections. (Associated Press 11/3/2010) After two months in office, his draconian budget cuts, insults to law enforcement officials and minorities, and heavy-handed attacks on unions will send his popularity plummeting and in April 2011 will spark a recall effort. (Somander 4/11/2011)

The American Civil Liberties Union (ACLU) secures an 81-page memo from March 14, 2003 that gave Pentagon officials legal justification to ignore laws banning torture (see March 14, 2003). The Justice Department memo was written by John Yoo, then a top official at the Office of Legal Counsel, on behalf of then-Pentagon General Counsel William J. Haynes. It guides Pentagon lawyers on how to handle the legal issues surrounding “military interrogations of alien unlawful combatants held outside the United States.” According to Yoo’s rationale, if a US interrogator injured “an enemy combatant” in a way that might be illegal, “he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network.” That motive, Yoo opines, justifies extreme actions as national self-defense. While the existence of the memo has been known for some time, this is the first time the public has actually seen the document. This memo is similar to other Justice Department memos that define torture as treatment that “shock[s] the conscience” and risks organ failure or death for the victim. Legal scholars call the memo evidence of “the imperial presidency,” but Yoo, now a law professor at the University of California at Berkeley, says the memo is unremarkable, and is “far from inventing some novel interpretation of the Constitution.” The ACLU receives the document as the result of a Freedom of Information Act (FOIA) request from itself, the New York Civil Liberties Union, and other organizations filed in June 2004 to obtain documents concerning the treatment of prisoners kept abroad. The Yoo memo is one of the documents requested. (John C. Yoo 3/14/2003 pdf file; United Press International 4/2/2008; American Civil Liberties Union 4/2/2008) According to the ACLU, the memo not only allows military officials to ignore torture prohibitions, but allows the president, as commander in chief, to bypass both the Fourth and Fifth Amendments (see April 2, 2008). (American Civil Liberties Union 4/2/2008) The Fourth Amendment grants the right for citizens “to be secure in their persons” and to have “probable cause” shown before they are subjected to “searches and seizures.” The Fifth Amendment mandates that citizens cannot be “deprived of life, liberty, or property, without due process of law.” (Cornell University Law School 8/19/2007) Amrit Singh, an ACLU attorney, says: “This memo makes a mockery of the Constitution and the rule of law. That it was issued by the Justice Department, whose job it is to uphold the law, makes it even more unconscionable.” (American Civil Liberties Union 4/2/2008)

The American Civil Liberties Union learns of another Justice Department memo in a Freedom of Information Act (FOIA) response that produces a 2003 memo supporting the use of torture against terror suspects (see April 1, 2008). This 2001 memo (see October 23, 2001), says that the Constitution’s protections against unreasonable searches and seizures—fundamental Fourth Amendment rights—do not apply in the administration’s efforts to combat terrorism. The Bush administration now says it disavows that view.
Background - The memo was written by John Yoo, then the deputy assistant attorney general, and the same lawyer who wrote the 2003 torture memo. It was written at the request of the White House and addressed to then-Attorney General Alberto Gonzales. The administration wanted a legal opinion on its potential responses to terrorist activity. The 37-page memo itself has not yet been released, but was mentioned in a footnote of the March 2003 terror memo. “Our office recently concluded that the Fourth Amendment had no application to domestic military operations,” the footnote states, referring to a document titled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.”
Relationship to NSA Wiretapping Unclear - It is not clear exactly what domestic military operations the October memo covers, but federal documents indicate that the memo relates to the National Security Agency’s Terrorist Surveillance Program (TSP). The TSP began after the 9/11 attacks, allowing for warrantless wiretaps of phone calls and e-mails, until it stopped on January 17, 2007, when the administration once again began seeking surveillance warrants from the Foreign Intelligence Surveillance Court (see May 1, 2007). White House spokesman Tony Fratto says that the October 2001 memo is not the legal underpinning for the TSP. Fratto says, “TSP relied on a separate set of legal memoranda” outlined by the Justice Department in January 2006, a month after the program was revealed by the New York Times (see February 2001, After September 11, 2001, and December 15, 2005). Justice Department spokesman Brian Roehrkasse says department officials do not believe the October 2001 memo was about the TSP, but refuses to explain why it was included on FOIA requests for documents linked to the TSP.
No Longer Applicable - Roehrkasse says the administration no longer holds the views expressed in the October 2001 memo. “We disagree with the proposition that the Fourth Amendment has no application to domestic military operations,” he says. “Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search.” The ACLU’s Jameel Jaffer is not mollified. “The recent disclosures underscore the Bush administration’s extraordinarily sweeping conception of executive power,” he says. “The administration’s lawyers believe the president should be permitted to violate statutory law, to violate international treaties and even to violate the Fourth Amendment inside the US. They believe that the president should be above the law.” He continues, “Each time one of these memos comes out you have to come up with a more extreme way to characterize it.” The ACLU has filed a court suit to challenge the government’s withholding of the memo. (Hess and Jordan 4/3/2008) Another civil rights group, the Electronic Frontier Foundation, joins the ACLU in challenging the memo (see April 2, 2008).

As reported by progressive media watchdog site Media Matters, conservative radio host Michael Savage repeats the false assertion that Democratic presidential candidate Barack Obama is a Muslim, a trope repeated by many conservative radio hosts (see January 22-24, 2008). In reality, Obama is a practicing Christian and a member of the United Church of Christ. The allegations that Obama is, or ever was, a Muslim have been debunked by, among others, CNN, the Chicago Tribune, and the Associated Press. Savage again lies to his listeners by telling them another oft-repeated falsehood, that Obama was educated in a radical Islamist “madrassah” during a childhood stint in Indonesia. Savage tells his listeners: “Look who we inherited in this country, from Dwight D. Eisenhower to Barack Hussein Obama, in one generation. A war hero to—a war hero who commanded the Allied operations against Nazi Germany was running for the presidency then. Now we have an unknown stealth candidate who went to a madrassas in Indonesia and, in fact, was a Muslim.… Yes, check it out.” (Media Matters 4/7/2008) Weeks before, Savage told his listeners that Obama and his former pastor supported the Nazis and the Imperial Japanese, and Obama would bring chaos and devastation to the United States on a scale not seen since the Civil War (see March 13, 2008).

Representative Geoff Davis (R-KY) calls presidential contender Senator Barack Obama (D-IL) “that boy” in a speech. “Boy” is a well-known racial slur, especially among Southern Americans. At a dinner commemorating “Lincoln Day” in northern Kentucky sponsored by the state GOP, Davis tells his listeners that he once participated in a “highly classified national security simulation” with Obama. “I’m going to tell you something,” he says. “That boy’s finger does not need to be on the button. He could not make a decision in that simulation that related to a nuclear threat to this country.” Once the slur is reported by Politico, Davis sends a letter of apology to Obama over his “poor choice of words.” He adds, “I offer my sincere apology to you and ask for your forgiveness.” Davis does not refer to his characterization of Obama as unable to protect the nation based on his assessment of Obama’s actions during a national security simulation. (Smith 4/14/2008; Smith 4/14/2008)

A portion of Barack Obama’s marriage certificate. The full-size original can be viewed online.A portion of Barack Obama’s marriage certificate. The full-size original can be viewed online. [Source: St. Petersburg Times]PolitiFact, the nonpartisan, political fact-checking organization sponsored by the St. Petersburg Times, debunks a recent spate of claims that Senator Barack Obama (D-IL), a presidential candidate, has ties to Islamist radicals in Kenya. The claims appear to be sourced from a letter sent by American missionaries in Kenya, saying that Obama has ties to a Kenyan opposition party and warning its readers “not to be taken in by those that are promoting him.” The email also claims: “By the way. His true name is Barak Hussein Muhammed Obama. Won’t that sound sweet to our enemies as they swear him in on the Koran! God bless you.” PolitiFact writes: “The e-mail reads like a bad game of ‘telephone,’ its claims drawn from assorted people and sources that have been stitched together. And yet, because it is signed by real people, who have a life in Africa, it somehow carries more credence than your average blog posting—and it’s spreading rapidly.” PolitiFact has debunked this claim before (see January 11, 2008), but notes that the claim continues to spread. PolitiFact posts a copy of Obama’s 1992 marriage certificate, which states “Barack H. Obama” married “Michelle L. Robinson” on October 3, 1992, in a ceremony officiated by Trinity United Church of Christ pastor Jeremiah A. Wright (see January 6-11, 2008). Obama’s driver’s license record in Illinois identifies him as “Barack H. Obama.” His property listings name him as either “Barack Hussein Obama” or “Barack H. Obama.” His registration and disciplinary record with the Attorney Registration & Disciplinary Commission of the Supreme Court of Illinois notes that Obama was admitted to the Illinois bar on December 17, 1991, and has no public record of discipline. PolitiFact was unable to secure a copy of Obama’s Hawaiian birth certificate (see June 13, 2008). PolitiFact has located the originator of the email, Celeste Davis. Her husband Loren Davis confirms that he cannot substantiate the claims in the email. “That was what we heard there [in Kenya],” Davis tells a PolitiFact interviewer. Davis says he and his wife have lived and worked in Kenya for the past 12 years, and says his wife’s message was from a personal letter “never intended to be forwarded or sent out to the Web.” (St. Petersburg Times 4/18/2008)

The Center for Media and Democracy’s John Stauber and author Sheldon Rampton lambast the Pentagon for its recently revealed propaganda program that, in their words, “embed[s] military propagandists directly into the TV networks as on-air commentators” (see April 20, 2008 and Early 2002 and Beyond). But Stauber and Rampton are even more critical of the media’s refusal to deal with the story. They note, “In 1971, when the [New York] Times printed excerpts of the Pentagon Papers on its front page (see March 1971), it precipitated a constitutional showdown with the Nixon administration over the deception and lies that sold the war in Vietnam. The Pentagon Papers issue dominated the news media back then. Today, however, [New York Times reporter David] Barstow’s stunning report is being ignored by the most important news media in America—TV news—the source where most Americans, unfortunately, get most of their information. Joseph Goebbels, eat your heart out. Goebbels is history’s most notorious war propagandist, but even he could not have invented a smoother PR vehicle for selling and maintaining media and public support for a war…”
Journalistic Standards Violated - According to the authors, the news outlets who put these analysts on the air committed “a glaring violation of journalistic standards.” They cite the code of ethics of the Society of Professional Journalists, which enjoins journalists and news outlets to:
bullet Avoid conflicts of interest, real or perceived;
bullet Remain free of associations and activities that may compromise integrity or damage credibility;
bullet Refuse gifts, favors, fees, free travel and special treatment, and shun secondary employment, political involvement, public office and service in community organizations if they compromise journalistic integrity;
bullet Disclose unavoidable conflicts;
bullet Be vigilant and courageous about holding those with power accountable;
bullet Deny favored treatment to advertisers and special interests and resist their pressure to influence news coverage; and
bullet Be wary of sources offering information for favors or money.
Networks' Silence a 'Further Violation of Public Trust' - The networks who used these analysts observed none of these fundamental ethical guidelines. “They acted as if war was a football game and their military commentators were former coaches and players familiar with the rules and strategies,” Stauber and Rampton write. “The TV networks even paid these “analysts” for their propaganda, enabling them to present themselves as ‘third party experts’ while parroting White House talking points to sell the war.” Stauber and Rampton call the networks’ decision to almost completely ignore the story a further “violation… of the public trust…” They fix much of the blame for the Iraq debacle on the media, noting that the war “would never have been possible had the mainstream news media done its job. Instead, it has repeated the big lies that sold the war. This war would never have been possible without the millions of dollars spent by the Bush administration on sophisticated and deceptive public relations techniques such as the Pentagon military analyst program that David Barstow has exposed.” (Stauber and Rampton 4/25/2008)

John Murtha.John Murtha. [Source: ABC News]Representative John Murtha (D-PA), a hawkish military veteran who has built a long political career on supporting the military, says that he is “disappointed” in both the US military and the news media for being part of the Pentagon’s recently revealed Iraq propaganda operation (see Early 2002 and Beyond). Murtha says that he was struck by the fact that, in the New York Times article that revealed the operation (see April 20, 2008), even some of the military analysts who most enthusiastically repeated the Pentagon’s talking points on the airwaves “didn’t even believe what they were saying.” Murtha says: “Well, the military’s held in the highest level and the highest esteem in this country. All of us appreciate their sacrifices. I’ve gotten to the point where I now distrust the military because they have been dishonored by these kind of untruths. It used to be that I could listen to the military, they would come to me, and what they said privately they were willing to say publicly. With [former Defense Secretary Donald] Rumsfeld’s tenure, they distorted everything. And that’s the way they got by for four years because the public said, well, the military’s saying that. Well, the public’s no longer accepting that. The public realizes we made a mistake when we went in, much of the information was inaccurate and they continue to say these kind of things. So, I’m disappointed. I’m disappointed in the news media. I tell ya, till I spoke out, the news media was not honest—or afraid to come forward. And I think the tactic was, ‘we don’t give them access if they say anything bad about us.’”
Credits Blogs - Murtha credits the political blogs for keeping the story alive: “The blogs have been so important to bringing out the truth. I didn’t know what a blog was till a couple of years ago. Now, I not only know, I understand how important they are because people have an opportunity to hear the other side of what they’re saying.” (Notably, Murtha gives this interview to a news blog, the left-leaning ThinkProgress.)
Propaganda Effort in Vietnam Did Decades of Damage - Murtha reflects on the tremendous damage done by military and government propaganda campaigns during Vietnam (see March 1971). “It took us 20 years to get over Vietnam,” he says. “It took us through the Ford administration, the Carter administration, it took us into the Reagan administration because we didn’t pay for the war and the public was misled. Now the public recognized it very early on in Vietnam because they casualties were so heavy. Because of the technology increases, they didn’t recognize it as quickly in Iraq. But until the end of the Clinton administration, where we had a budget with a surplus, we were paying for the Vietnam war. We’re doing the same thing now.… I mean, nobody recognized we’re paying now with inflation, we’re paying all the expenses in Iraq. We’re paying $343 million dollars a day because of Iraq. So, it’s unfortunate and it just makes it that much more difficult for us to overcome this, because people who don’t believe it now, believed it for a while and they don’t want to be misled again.” (ThinkProgress (.org) 5/1/2008)

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